A Civil Negligent Security Claim and the Criminal Case Against the Attacker: How They Differ

If the Police Are Involved, Is There Still a Civil Case? Two Proceedings, Two Goals

A criminal case asks one question: did the accused person commit a crime, and if so, what punishment follows. It is brought by the government through a prosecutor. The person who was attacked is the victim and often a witness, but not a party who runs the case.

A civil negligent security claim asks a different question. It belongs to an area of law called premises liability: the part of civil law that holds property owners and operators responsible for certain conditions on their property that cause injury. Negligent security is one theory within it. Under that theory, a property owner or operator may be held responsible for a crime that adequate security measures could have prevented. The claim is brought by the injured person, or after a death by the surviving family or the estate, against the owner or operator whose security is at issue. Our page on the negligent security lawyer topic walks through these cases in more depth.

The two run on separate tracks. A criminal prosecution does not pause or prevent a civil claim, and a civil claim does not pause or prevent a prosecution. Each has its own court file, its own rules and its own result.

For someone in this position, the practical point is that a police investigation is not the only path. The criminal case is about the attacker and the public's interest in punishing a crime; the civil claim is about whether the place where it happened did what the law asked of it, and it is the one the injured person or family decides whether to pursue.

Who Brings Each Case — and Against Whom

If you were attacked, the criminal case is not yours to start or stop. The prosecutor decides whether to charge anyone, what crimes to charge, and whether to accept a plea agreement. A victim may be asked to speak with investigators or testify, and many places give victims rights to be informed and heard, but the final calls belong to the prosecutor and the court.

The civil claim works the other way. The injured person is the plaintiff, the party who brings the case. The plaintiff decides whether to file, when to file within the time the law allows, and whether to settle. Our page on who can bring a claim covers who that may be in different situations.

After a death, the civil claim usually takes the form of wrongful death: a civil claim brought by surviving family members or the estate when a person dies as a result of another party's wrongful act or negligence. Who may bring it, and on whose behalf, differs from state to state.

The civil defendant in a negligent security claim is typically the property owner, manager or operator, not necessarily the attacker. The attacker may be named in the civil suit as well. But the negligent security theory rests on the owner's or operator's own, independent duty to provide reasonable security. The question is not whether the property committed the crime. It is whether the property's choices about locks, lighting, guards, gates or warnings met the care the law expected, given what it knew.

If the Attacker Is Acquitted or Never Charged: What Each Side Has to Prove

The criminal case carries the heaviest burden in American law. The prosecution must prove the accused person's guilt beyond a reasonable doubt. If the jury is left with a real doubt, the verdict is not guilty.

A civil case uses a lower standard, called the preponderance of the evidence. In plain words, the evidence has to show that the claim is more likely true than not. The plaintiff carries that burden.

Because the standards differ, the outcome of one case does not decide the other. An acquittal in the criminal case, or a decision never to charge anyone, does not prevent a civil negligent security claim from going forward. This surprises many families. A not-guilty verdict can feel like the end, yet it answers only whether the government met its very high burden against one person. It says nothing about whether the property's security was reasonable.

In a civil claim, the questions a court generally works through track what happened to you, in four steps:

1. Did the property owner or operator owe a duty of reasonable care to the person on the property?
2. Did the owner or operator breach that duty by failing to provide adequate security?
3. Was that breach a cause of the injury?
4. Did the person suffer damages as a result?

Courts often look closely at whether the crime was foreseeable to the owner, a question the inadequate security lawsuit page explains further. Whether these elements are met depends entirely on the facts of a particular case. An injury on someone's property, even a serious one from a violent crime, does not by itself show that the owner did anything wrong.

What Each Proceeding Can Lead To

A criminal case ends in a conviction or an acquittal. If the accused person is convicted, sentencing may include incarceration, probation, fines, and an order to pay restitution to the victim. Restitution is ordered by the court, but whether it is actually paid depends on the convicted person's ability to pay, and collecting it can be difficult.

A civil case can end in a judgment for damages if the plaintiff proves the claim, or in a ruling for the defendant if not. The damages categories the law may allow include medical expenses, lost income and pain and suffering. In a wrongful-death case, the categories vary by state. Whether a category applies, and what it may cover, depends on state law and the facts. No result is assured in either case.

There is a third source of help that sits on the criminal justice side. The Office for Victims of Crime, part of the U.S. Department of Justice, describes crime victim compensation as "a direct reimbursement to or on behalf of a crime victim for a wide variety of crime-related expenses such as medical costs, mental health counseling, lost wages, and funeral and burial costs." According to the Office for Victims of Crime's victim compensation page, it administers federal funds that support compensation programs in all U.S. states, Washington, D.C., the U.S. Virgin Islands, Puerto Rico and Guam. The page states that eligibility "varies by state and territory" and is determined by each state program, and that victims may contact the program for the state or territory where the crime occurred to ask about services and eligibility.

Victim compensation is separate from a civil claim. A family weighing medical bills and lost work may find that the criminal side, the compensation program and a possible civil claim each address a different part of what they are facing.

How Fault Is Assigned When More Than One Party Is Responsible

When a property owner and an attacker both played a part in an injury, a civil court may have to divide responsibility, and that division shapes what an injured person may recover from the property. Many states follow comparative fault, also called comparative negligence. Under it, the trier of fact, usually the jury, gives each party whose conduct contributed to the harm a percentage of responsibility. Some states instead keep contributory fault, or contributory negligence, where a plaintiff who bears any share of fault may be barred from recovery. Fault rules differ by state, and no single state's rule applies everywhere.

Texas offers one example, and it is Texas's rule only. Chapter 33 of the Texas Civil Practice and Remedies Code, Texas's proportionate responsibility chapter, covers tort cases in which a defendant, settling person or responsible third party is found responsible for a percentage of the harm. In those cases, the jury or judge assigns a whole-number percentage to each claimant, each defendant, each settling person and each responsible third party. Section 33.001 of the Texas Civil Practice and Remedies Code states that "a claimant may not recover damages if his percentage of responsibility is greater than 50 percent." If the claimant is not barred, damages are reduced by the claimant's own percentage, and a liable defendant is generally liable only for its own percentage, with joint liability in circumstances the chapter sets out. For an injured person in Texas, that means the property owner's share, not the full harm, is generally what the owner may be answerable for.

The same chapter lets a defendant file a motion for leave to designate a responsible third party, which in a negligent security case can include the attacker. The motion must be filed on or before the 60th day before trial unless the court finds good cause for a later filing. If the defendant alleges, within 60 days after its original answer, that an unknown person committed a criminal act that caused the injury, the court must grant leave to designate that unknown person when conditions in the statute are met, including that there is a reasonable probability the act was criminal. The unknown person is then called "Jane Doe" or "John Doe." Section 33.004 of the Texas Civil Practice and Remedies Code, Chapter 33 sets out the conditions for designating a responsible third party. More on Texas appears on our page about negligent security in Texas.

The attacker's share in a civil case is decided in that civil case. It does not depend on a criminal conviction. How fault is divided turns on the state's law and the facts, and which framework applies where an attack happened is a question a conversation with an attorney can address.

What Police Gather Now Can Matter Later: Evidence in Both Proceedings

Much of what explains an attack is gathered by police in the first days after it. Some of that same material can matter in a civil claim later.

Evidence relevant to a negligent security civil claim typically includes incident reports and police reports, surveillance footage, records of prior crimes or incidents on the property, security policies and staffing records, records of lighting and the physical condition of gates, doors and locks, and medical records documenting the injury. If you were hurt, the records that usually matter include medical records, any incident or police report, photographs of the location, and records of prior incidents at the property. For apartment cases in particular, our page on apartment complex negligent security describes how common areas and security devices come into it.

The criminal case can feed the civil one. A criminal conviction of the attacker can be introduced as evidence in the civil case, but the civil case does not require a conviction, since its standard is lower. Testimony given in a criminal proceeding may be used in the civil case, and a criminal investigation may produce records, such as police reports and forensic findings, that bear on the civil claim.

The flow does not require waiting. A civil case can proceed before the criminal case ends, and sometimes before anyone is charged. For a family that assumed nothing could happen until the prosecutor finished, this means the record in one case can shape what is available in the other, and which records exist is something an attorney can help sort out.

Why Running Both Proceedings at Once Can Raise Questions Worth Thinking Through

Parallel cases can collide. When criminal charges are pending, a civil defendant, such as the attacker if named in the civil suit, may invoke the Fifth Amendment right against self-incrimination and decline to answer questions in a civil deposition, the sworn questioning that takes place before trial. That can limit what the civil case learns from that person while the criminal case is open.

Deadlines add a second consideration. A statute of limitations is the period within which a civil lawsuit must be filed; after it expires, the claim is generally barred. Limitation periods differ by state, and a civil claim has to be filed within the period the state's law sets regardless of where the criminal case stands. Some plaintiffs' attorneys file the civil case promptly, even while the criminal case is ongoing, to keep evidence available and stay within filing deadlines. Others weigh the timing differently based on the facts and the state's procedural rules.

For an injured person or a grieving family, these are practical questions: when to file, how the criminal case's pace affects discovery, and what testimony may be available when. They depend on the specific facts and on the procedural rules of the state where the attack happened. If you would like to talk through how the timing of a pending criminal case and a possible civil claim fit together, you can request a case evaluation.