Victims of violent physical attacks have the legal right to obtain compensation for medical expenses and other losses. In many cases, the attacker may have been ordered to pay restitution in the criminal trial, but that is not always the case. Even if it is, that isn’t a bar to seeking damages in civil court with the assertion of an intentional tort resulting in substantial and/or permanent injury or disability.
Of course, what you are legally entitled to recover and what you actually recover may be two separate issues. For example, if the attacker has few assets and no insurance, you may need to carefully weigh whether to proceed. Alternatively, one might look at whether a property owner shared any responsibility for failing to maintain adequate security, which granted ample opportunity to an attacker to commit a crime.
It is a decision that should be weighed carefully. For plaintiff in Hough v. McKiernan, it was one that paid off, as the Rhode Island Supreme Court affirmed a $925,000 judgment against his attacker for injuries and permanent disabilities sustained in a violent and unprovoked attack in 2006.
Our New York City personal injury attorneys believe this plaintiff should have received even more, considered the extent of his injuries and lack of comparative fault. However, he and his attorneys agreed to accept a remittitur reduction of damage awards, from $1.75 million to $925,000 in exchange for not having to endure a second trial.
According to court records, plaintiff was walking home from work at a drug store with a friend when they were accosted by a group of men in a vehicle. The men in the car circled several times, yelling obscenities, before getting out and starting a fight.
Defendant was the driver, who reportedly swung twice at plaintiff. The second punch landed on plaintiff’s chest, causing him to fall back and strike his head on the pavement. Plaintiff remembers nothing beyond that punch, probably because he almost died as a result of brain trauma.
A doctor testified a huge part of plaintiff’s skull had to be removed to relieve swelling. In order to keep that portion of the skull alive, surgeons implanted the skull piece in plaintiff’s abdomen, where it stayed for months until doctors were sure pressure on the brain was no longer a fatal risk. He was kept in a medically-induced coma for weeks, and then spent several months longer in rehabilitation.
Plaintiff recalled to court the intense pain he suffered in enduring rehab with a portion of his skull implanted in his abdomen. Just bending over to tie his shoes and dressing was extremely difficult and painful.
A high school student at the time, he did remarkably manage to graduate high school, though he could not attend the ceremony or numerous other year-end events. He enrolled in college, but his scars and disabilities resulted in him dropping out within a few months.
Even after the skull piece was re-attached, he had to wear a hockey-like helmet for many months to protect his brain. He called this a major embarrassment that resulted in his leaving or never attending various social functions.
He continued to suffer severe headaches, vision trauma and scarring from the injury, even eight years after the fact.
Jurors awarded plaintiff $1.75 million in damages plus interest.
Defendant filed motion for a new trial, arguing the verdict was against the fair preponderance of the evidence and “shocked the conscience.” Specifically, he argued jury was unfairly swayed by sympathy for plaintiff. The court agreed, and rather than endure another trial, plaintiff agreed to a significant reduction in damages.
Still, defendant appealed this amount too, arguing it was still excessive and the jury was swayed by prejudice for him and compassion for plaintiff. He argued actual medical expense damages suffered by plaintiff were $135,000, and plaintiff didn’t assert a claim for lost wages.
However, the state supreme court found evidence supports the amount of the award.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Hough v. McKiernan, Oct. 17, 2014, Rhode Island Supreme Court
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