If you are a victim of violence in Indiana leading to injuries, you are probably aware that a pending criminal case against your attacker(s) could involve an order of restitution upon a conviction. What you may not know is that you have further legal options in a civil lawsuit.
Individuals who are deemed liable for the injuries of another person – whether through negligence or intentional conduct – can be ordered in civil court to cover damages for medical bills, lost wages, and pain and suffering. This is separate and apart from any order of restitution in a criminal court, since the two operate independently of each other. While no insurance company will pay for the cost of intentional injuries inflicted by an insured, they could be responsible to cover third-party liability in such a case. For example, if you are injured at a bar in an attack by a fellow patron, you may have grounds to sue the bar itself in an Indiana premises liability claim if there is evidence such an incident was foreseeable, and the bar’s security was inadequate.
It’s often in a victim’s best interest to explore civil injury case options, since restitution orders often only take into account actual damages and often do not calculate payouts based on intangible losses, such as pain and suffering and mental anguish.
Recently, the Indiana Court of Appeals affirmed a criminal case restitution order against a bar patron who allegedly instigated a fight with a bouncer, even though she did not directly inflict his injuries.
According to court records in the case, the defendant argued the trial court abused its discretion by ordering her to pay more than $18,000 in restitution to the victim because she did not cause the victim’s injuries.
The incident in question occurred in April 2015 while the defendant and three male companions – her boyfriend, his brother, and another friend – went to a bar in Broad Ripple. Prior to their arrival at the site, the defendant and the others had already consumed alcohol, and the bartender refused to serve them any more drinks, concluding they were already visibly impaired. (This was a smart move considering that Indiana’s Dram Shop Act, Ind. Code 7.1-5-10-.15.5, statutorily allows for civil liability against alcohol vendors who serve patrons who are already visibly intoxicated.)
The bartender served them water and asked them to leave numerous times amid multiple confrontations with other patrons. Eventually, the bartender threatened to call police. The group loudly exited, according to reports, and then the female defendant attacked a male bouncer who was trying to keep them from going back in. She grabbed his beard with both hands, put her feet on his thighs, and was trying to pull out his beard. The victim was in extreme pain, grabbed the defendant’s hair (but did not pull), and threatened to rip her hair out if she didn’t let go. It was at that point that two of the defendant’s male companions entered the fray, throwing punches and causing the victim to fall back onto the concrete and suffer a broken leg. Once he was on the ground, one of the men stomped on his ankle, breaking it, and another kicked him in the face.
The victim eventually required surgery on his leg. The three attackers were charged with felony battery. The defendant female alleged the bouncer was the initial aggressor, who had yelled slurs at her and spit at her. She also alleged he had punched her.
The defendant was convicted of misdemeanor battery, after the judge stated the two had been in mutual combat, but she was not the person who inflicted the blows that seriously injured him. The other two were found not guilty.
The victim was paid $15,000 in restitution from the Violent Crime Compensation Fund for his medical bills, which totaled more than $33,000. The defendant was ordered to pay the remainder of those bills.
On appeal, defense counsel acknowledged the victim could seek restitution in civil court but insisted restitution wasn’t proper because she wasn’t the one who caused his broken leg.
The appellate court, however, affirmed. The court noted the Indiana Supreme Court’s previous rulings holding restitution is properly payable to those who have suffered injury, harm, or loss as a direct and immediate result of the criminal actions of defendants, and the defendant was the one who started the incident – and the actions of the co-defendants were not a separate, intervening action.
This order of restitution will not affect the victim’s ability to pursue civil action through a personal injury claim. Furthermore, the finding of not guilty in criminal court won’t prevent the victim from taking action against the other two men also, since not only are the cases handled separately, but also the proof burden is lesser in civil cases.
Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including in Highland, Gary, and Hammond. Call Toll Free 877-446-5294.
Postiglione v. State of Indiana, Sept. 19, 2017, Indiana Court of Appeals
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