How is Compensation Obtained?
Episodes of sexual abuse invariably involve intentional acts. Unfortunately, many insurance policies do not provide coverage for intentional or purposeful acts. Therefore, abuse victims can rarely look to any insurance policy held by the abuser for compensation. So, how do victims find the money to be satisfactorily compensated for their damages?
In many instances it is important for the victim to show that others share in the responsibility for the abuse. For example, Sarah has been repeatedly abused by her step-father Greg in her mother’s house. If Sarah’s mother knew or should have known that the abuse was occurring, Sarah may be able to collect from her mother’s homeowner’s insurance in a claim for negligent supervision.
Collecting from an Employer or Organization
As a practical matter, successful cases typically involve a claim against an individual or organization that was responsible for placing the perpetrator and the victim in contact with one another.
When intentional acts are involved, such as with sexual abuse, it is much more difficult to say that abuse occurred in the course and scope of employment, because an employer would seldom, if ever, condone such acts.
It is not enough for the act to simply be committed while someone is in the employ of another. The key to vicarious liability is that the wrongful act was basically part of the wrongdoer’s job.
A case may proceed against a church, a youth organization, a care facility, school, sports club, or any other organization that fails to undertake proper means to hire and supervise people who will have close, trusting relationships with children. Were former employers contacted? Was a criminal screen performed? Was the sex offender database checked?
An employer or organization which hires or retains a person with a history of abuse, is going to stand responsible for that person’s future acts, especially when a reasonable investigation or inquiry would have revealed the perpetrator’s tendencies.
What Compensation Can a Victim Receive?
Actual damages in any personal injury case are defined as either “general” or “special.” Special damages are those for which a specific dollar value can be assigned and easily calculated. Hence, lost income, lost future earnings capacity, medical expenses (both past and future) and any other out-of-pocket expenses reasonably necessary to place the victim back into circumstances that he or she would have enjoyed in the absence of the abuse.
Example of Special Damages: The victim is awarded $50,000 in medical expenses due to the incident.
General damages include all such damages for which a specific dollar figure is hard to calculate. The ability to assign a specific dollar value to these damages is left to the sound discretion of the jury.
The most recognizable element of general damages is “pain and suffering. Pain and suffering damages can include disfigurement, mental anguish, loss of esteem, and in the most general of terms, loss of the basic enjoyment of life.
Example of General Damages: Jury awards the victim $100,000 in pain and suffering for not being able to live as she did before her incident.
The third type of damages that are possible but less likely to be awarded are Punitive Damages. Punitive damages are not designed to compensate the victim for the abuser’s wrongdoing.
They are designed to punish the wrongdoing and to be in such an amount that other similarly situated defendants will be deterred from similar wrongful acts.
Not every case warrants punitive damages, and they are greatly disfavored by the courts except in the most extreme cases of misconduct. In Missouri, jury instructions define the conduct for which a jury may award punitive damages as follows: Punitive damages are appropriate only when the conduct of defendant is outrageous because of evil motive or reckless indifference to the rights of others.
Example of Punitive Damages: The Jury awards $1,000,000 against a nursing home for knowingly employing a convicted sexual predator.