Lawsuits Arising From Criminal Conduct

February 29, 2012

Claims Against Bars and Restaurants That Illegally Serve Obviously Intoxicated Persons

The February 24, 2012 Tennessean contains this article about lawsuits against those who illegally serve alcohol to an obviously intoxicated person. The article found its way to Page One mainly because of this horrific accident just a few days earlier, when a person who was allegedly intoxicated drove the wrong way on the Interstate and hit and killed a person.

To suggest that bars and restaurants should not be held responsible for violating the law is ridiculous. The notion of “personal responsibility” doesn’t stop with the drunk driver – it also applies to those who illegally serve obviously intoxicated persons.

There is only one thing wrong with the current law – it is not strong enough to prevent bars and restaurants from serving people to drunkenness and beyond. It is unfair to require the person harmed by such conduct to prove the misdeeds “beyond a reasonable doubt” – a standard usually used for criminal cases. The liquor lobby got special protection for those who have acted illegally, but this law should be repealed and the normal “preponderance of the evidence” standard should be re-instated.

December 22, 2011

I Was Beat Up By The Tow Truck Driver!

by The Law Offices of John Day, P.C.

I came back to my car and found out it was being towed. I asked the tow truck driver why and he said that it was illegally parked. I told him it was not and we got into an argument. He then hit me, breaking my jaw. Can I sue the tow truck company for this injury?

Perhaps. The tow truck company is not responsible for the intentional acts of a tow truck driver, and from the description of the incident it sounds like this was an intentional rather than a negligent injury.

However, an employer can be held to bear some level of responsibility when its employees intentionally cause harm if the employer negligently hired, trained or supervised the employees or negligently failed to fire them if the employer knew or reasonably should have known that the employee presented a risk of injury to members of the public.

December 16, 2011

I Think My Brother Killed Our Mother. Can I Sue Him?

by The Law Offices of John Day, P.C.

I think my brother killed our mother. She was living alone in the family home and was found murdered. Because of a history of trouble between our mother and my brother, both my sister and I think he killed her. Can we sue him?

Under Tennessee law, your brother could be sued for wrongful death even if he has not yet been charged, tried, or convicted of the crime of murder. Murder in criminal law would be “battery” under the civil law, and a civil law suit for battery can be filed even if the criminal charges have not been filed. Damages that can be sought for battery include compensatory damages and punitive damages.

In fact, under Tennessee law a person can be found innocent of murder in a criminal case and still be successfully sued for battery arising out of the same incident. Why? Because in a civil wrongful death case the person bringing the lawsuit must only prove the that the defendant killed the decedent by a preponderance of evidence (that is, more likely than not). In a criminal case the State must prove beyond a reasonable doubt that the defendant murdered the decedent. Thus, the criminal court jury could conclude that the State did not prove what it needed to send the defendant to prison but the civil court jury could conclude that more likely than not the defendant killed the decedent and award damages.

July 25, 2011

My Daughter Has Been Sexually Abused by Her Father!

by The Law Offices of John Day, P.C.

I just discovered that my ex-husband has been sexually abusing my 12-year old daughter. What do I do? I am scared and very angry.

Here are my thoughts:

Immediately report this matter to the police. If there is any physical evidence of the abuse that you can readily put your hands on take it with you.
Cooperate fully with the police. Your daughter will almost certainly need a medical examination. Cooperate with that effort.
Follow any reasonable instruction from the police department and the medical personnel.
If there is sufficient evidence the police will probably arrest your ex-husband immediately. You will then be safe to go home.
Talk to a lawyer about getting a court order keeping your ex-husband away from the house, you and the children of the event he makes bond and is able to get out of jail. If there is any visitation it should be supervised. You may also have to seek the help of the court where you were divorced, so you should contact the lawyer who represented you in the divorce and seek his or her help.
Get your daughter (and perhaps your other children) counseling. If you cannot afford private counseling the area rape trauma and sexual abuse center will give you a list of names of counselors who work for reduced rates. Some centers even provide some level of free counseling. You may need counseling yourself.
You may wish to talk to a lawyer about filing a civil lawsuit against your husband. Sexual abuse is not only a crime but can also result in civil liability. Your divorce lawyer may or may not be the right lawyer to help you with a civil lawsuit – it depends on what experience he or she has with this type of claim.

May 12, 2011

Can I Sue The Man That Raped Me?

by The Law Offices of John Day, P.C.

I was raped. The police found the rapist and he is in jail. Can I sue him?

Rape is a crime that will result in prison time but it is also what is known as a "tort." There are many different types of torts, but rape would be the civil tort of battery. Battery is the unlawful touching of another person. Thus, a rapist can be sued and imprisoned for the same conduct.

The problem with suing rapists is that they may not have money and therefore it will be very difficult to collect the damages you win. Hopefully, the person who did this to you will be going to prison and therefore will not be earning any real income, but that of course has the practical effect of making it difficult to collect damages from him.

May 2, 2011

Deadline for Filing Sex Abuse Claims in Tennessee

by The Law Offices of John Day, P.C.

I live in Tennessee. My son was sexually abused by a neighbor when he was 14. He is 18 now. Can my son sue the abuser, or has the time for taking legal action expired?

Yes. Tennessee law requires that he must file suit before his 19th birthday. The failure to file suit by his 19th birthday will result in a loss of his rights.

People sexually abused in Tennessee when they are adults have only one year from the date of the incident to file suit, but special rules apply if the person who was the abuser was a "therapist" within the meaning of T.C.A. Sec. 29-26-203. If you think you have been abused by a therapist (or anyone else for that matter), contact an experienced personal injury lawyeras soon as possible. Make sure you discuss this with your parents as soon as possible if you have not already done so.

April 5, 2011

My Daughter Has Been Sexually Abused By Her Step-Father. What Do I Do?

by The Law Offices of John Day, P.C.

I just discovered that my husband has been sexually abusing my 12-year old daughter. What do I do? I am scared and very angry.

Here are my thoughts:

Leave the house with your daughter and any of your other children and immediately report this matter to the police. If there is any physical evidence of the abuse that you can readily put your hands on take it with you.
Cooperate fully with the police. Your daughter will almost certainly need a medical examination. Cooperate with that effort.
Follow any reasonable instruction from the police department and the medical personnel.
If there is sufficient evidence the police will probably arrest your husband immediately. You will then be safe to go home.
Do not bail your husband out of jail. Do not give him a chance to act right based on a promise that he will not act this way again.
Talk to a lawyer about getting a court order keeping your husband away from the house, you and the children of the event he makes bond and is able to get out of jail. If there is any visitation it should be supervised. The district attorney will probably be able to help you get this court order.
Get your daughter (and perhaps your other children) counseling. If you cannot afford private counseling the area rape trauma and sexual abuse center will give you a list of names of counselors who work for reduced rates. Some centers even provide some level of free counseling. You may need counseling yourself.
Talk with a divorce lawyer. You cannot stay married to a man who will harm your children.
You may wish to talk to a lawyer about filing a lawsuit against your husband. Sexual abuse is not only a crime but can also result in civil liability.

October 29, 2010

I Was Raped. Do I Have A Right to Sue the Rapist?

by The Law Offices of John Day, P.C.

I was raped. The police found the rapist and he is in jail. Can I sue him?

Yes. Rape is a crime that will result in prison time but it is also what is known as a "tort." There are many different types of torts, but rape would be the civil tort of battery. Battery is the unlawful touching of another person.

The problem with suing rapists is that they may not have money and therefore it will be very difficult to collect the damages you win. Hopefully, the person who did this to you will be going to prison and therefore will not be earning any real income, but that of course has the practical effect of making it difficult to collect damages from him.

July 9, 2010

How Long Does a Victim of Sexual Abuse Have to File a Lawsuit Against the Abuser?

by The Law Offices of John Day, P.C.

I live in Tennessee. I was sexually abused by a neighbor when I was 15. I am 17 now. Can I still sue him?

Yes. Tennessee law requires that you file suit before your 19th birthday. The failure to file suit by your 19th birthday will result in a loss of your rights.

People sexually abused in Tennessee when they are adults have only one year from the date of the incident to file suit, but special rules apply if the person who was the abuser was a "therapist" within the meaning of T.C.A. Sec. 29-26-203. If you think you have been abused by a therapist (or anyone else for that matter), contact an experienced personal injury lawyer as soon as possible. Make sure you discuss this with your parents as soon as possible if you have not already done so.

May 25, 2010

Rights of Sex Abuse Victims

by The Law Offices of John Day, P.C.

I was sexually abused for five years by my step-father, staring when I was 5 years old. I am 18 years old now. Can I sue him for what he did to me?

Yes. Under Tennessee law sexual abuse is the tort of battery and the tort of outrageous conduct. However, you must file suit before your 19^th birthday if you want to seek damages for what happened when you were under the age of 18. The failure to file suit by your 19^th birthday will likely result in a loss of rights for all that happened before you turned 18. Talk to an experienced personal injury lawyer to gain an understanding of whether there are any exceptions in the law that may give you more time to take legal action.

We have represented people who have been victims of sexual abuse. The cases are very sad, but we have found professional satisfaction helping our clients and imposing financial responsibility on the perpetrators of these horrible crimes. One challenging factor in these cases is collecting money from the perpetrator – homeowner’s insurance will not cover this type of act. However, we have been successful identifying assets from which to obtain a settlement in this type of case.