Rights of New Jersey Crime Victims Against Government Entities – The State Created Danger Theory


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Whether it’s a physical assault or a sexual assault, state entities like state prisons, hospitals, schools, etc., may face liability for directly creating a dangerous situation or taking affirmative action which increases the risk of injury. This is known as the state created danger theory which is often applied in crime victim injury cases which occur at state operated facilities. There is an important legal distinction between private and state run entities.

In general, public entities like a state run school or hospital are immune from liability with some exceptions. On the other hand, private entities, such as a private school, generally do not enjoy any such immunity. New Jersey, however, does give some immunity to certain private entities. In negligence cases, New Jersey’s Charitable Immunity Act may grant limited immunity to certain private entities which operate for charitable (i.e., religious or educational) purposes.

Related: School Sex Abuse Claims in New Jersey (Part 1) – NJ’s Child Sex Abuse Act & the Statute of Limitations

State Created Danger

Under the 14th Amendment of the U.S. Constitution, citizens have a right to due process of law. The government cannot arbitrarily deprive citizens of a liberty interest. See 42 U.S.C. § 1983, which is provided below. The 14th Amendment does not allow government protection from violent acts of private actors. Instead, the Constitution applies if the state either 1. creates the danger that caused the injury, or 2. increases the risk of harm. In assault cases including those involving physical or sexual assaults, federal and state government entities can be held liable so long as the injured victim is able to show the following:

  • the assault and injury were foreseeable and direct;
  • the conduct of the state actor must rise to the level of deliberate or conscious indifference;
  • the plaintiff must be a specifically foreseeable victim or part of a discrete class of foreseeable victims; and
  • the state actor must affirmatively use his authority either to create a danger or render a person substantially more vulnerable to injury.

See Bright v. Westmoreland County, a 2007 United States Court of Appeals for the Third Circuit case.

More: Pennsylvania & New Jersey Sexual Abuse Law – Government Liability for Sex Abuse

In a nutshell, there must be sufficient evidence that state employees directly created the danger or was deliberately indifferent to the health and safety of the injured victim. Mere negligence is not enough. Determining whether the government’s conduct rises to the requisite level requires analysis of all the facts.

Conduct which constitutes deliberate indifference may be present in one environment but not another. Examples of conduct which meet this standard:

  • failing to secure travel for a severely drunk woman after police respond to an alcohol-related disturbance in freezing weather (Kneipp v. Tedder);
  • drunk woman (passenger of car pulled over for DUI) sexually assaulted after police arrest DUI driver but fail to provide assistance to the drunk passenger, leaving her alone in an area of high crime (Wood v. Ostrander); or
  • failing to provide a secure meeting area at a high-risk psychiatric hospital (Gormley v. El-Wood).

Assault Victims Rights to Financial Compensation

Individuals who are injured due to a physical or sexual assault may be able to obtain fair financial compensation for:

  • medical bills,
  • therapy treatment bills,
  • lost wages/economic expenses, and
  • pain and suffering.

Crime Victims Rights – Legal Help

If you would like to discuss your rights in an assault case, please call our office at Click To Call. Firm founder Brian Kent is a former prosecutor who now helps victims of crime in civil lawsuit cases in New Jersey.

DISCLAIMER: This website does not create any attorney-client relationship or provide legal advice. It is crucial to speak to a qualified lawyer prior to making any decision about your case. Read full disclaimer at the bottom of this page.

42 U.S.C. § 1983, current as of August 2014

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.