Are you or someone you know experiencing or has experienced domestic violence or abuse? Does it seem that there is inadequate consideration for the abuse suffered in either the criminal or family law proceeding? Have you talked to an attorney about bringing a personal injury claim?
Many victims of abuse often find themselves mired in either a criminal case or a family law case, which are not the place to address an injury from abuse. This often leaves victims feeling unable to access justice for the wrongs they have experienced.
In a criminal court of law, the case is about whether or not the abuser violated a criminal statute and how or if the State will punish the abuser for the violation. As such, the focus is on the abuser and the criminality of the abuser’s actions. The only thing a victim can recover is restitution. Restitution is only allowed to recompense for direct losses. This means that a court cannot order restitution for pain and suffering, punitive damages, or consequential damages. Further complicating the matter, the prosecutor does not represent the victim. This often leaves the victim unrepresented and facing a myriad of difficult legal questions.
In a family law case, the court is generally interested in three things – dividing the community property, working out parenting time and legal decision making for children, and determining an amount and duration for spousal maintenance. While domestic violence or abuse may be relevant to parenting time and legal decision making, the family law court is rarely interested in abuse when equitably dividing property or awarding spousal maintenance. This is largely because Arizona is a no-fault divorce state, which means the bad actions of the spouse is generally not considered by the divorce court.
The best place for resolution of claims involving domestic violence or abuse is most often through filing a tort or personal injury claim. Generally, a victim of abuse has two years to file the abuse claim before it is barred by the statute of limitations.
There are a couple of myths surrounding personal injury claims involving domestic violence or abuse. One common myth involves the doctrine of interspousal immunity wherein a spouse cannot sue another spouse for damages. While this used to be the law, it no longer is. The Arizona Supreme Court has recognized that while the doctrine of interspousal tort immunity was adopted as common law, conditions and circumstances have changed since its adoption. Fernandez v. Romo, 132 Ariz. 447, 449 (1982). The most common reason for maintaining interspousal immunity was the unity of husband and wife as one. Id. at 450. However, the Court has acknowledged that this reason cannot operate today because should one spouse tortiously injure the other, he or she does so independently. Id. As such, an intentional tort inflicted by one spouse against the other clearly destroys the concept of unity. Windauer v. O’Connor, 107 Ariz. 267, 268 (1971). As a community property state, Arizona case law demonstrates that an injury is considered personal to a spouse; and as such, compensation for those injuries should also belong to him or her as separate property. Fernandez, 132 Ariz. at 451. As a result, a victim of domestic violence may bring a personal injury claim against the abuser even while still married.
Another common myth is that domestic abuse only occurs with the husband as the abuser and the wife as the victim. While this certainly occurs, domestic abuse also occurs where the wife is the abuser and in same sex relationships and marriages.
One advantage of a personal injury case is that it can be prosecuted on a contingency fee, meaning the abuse victim does not have to pay attorney’s fees until the victim recovers against the abuser. The focus of a personal injury case is on both the bad actions of the abuser and the damages those actions have caused to the victim.
Injuries commonly seen in domestic abuse personal injury claims include:
- Knowingly transmitting sexually transmitted diseases
- Broken bones
- Traumatic brain injuries
- Emotional distress and
- Permanent scarring from lacerations and burns.
Bringing a personal injury claim against an abuser may allow a victim to not only feel adequately represented and a sense of justice, but it also permits recovery of damages that are unattainable in criminal and family law cases such as:
- Damages for pain and suffering
- Medical expenses
- Lost wages and
- Punitive damages.
There are many difficult considerations in bringing a personal injury claim arising from domestic abuse, e.g.:
- Moving the claim forward while a criminal or family action is pending.
- How to utilize prior statements.
- Whether there will be insurance coverage.
- What constitutes reasonable damages.
- How the injured person collects any awarded damages.
The personal injury attorneys at Mesch Clark Rothschild are experienced in handling these claims and are willing to help you assess and prosecute a claim against an abuser. Schedule a free consultation by calling (520) 624-8886.
