If you’ve been injured as a result of someone’s negligence, you might have a couple of options for recovering compensation for your financial losses. Some wrongful acts can be both a tort (civil wrong, where the victim files a personal injury lawsuit for damages) and a crime (a public wrong that’s prosecuted by the state).
If the action that caused your injury is not only the tort of negligence but also criminal behavior, you might have the option to pursue both crime victim’s restitution and personal injury damages.
Torts that could also be subject to criminal prosecution
Not every tort is a crime. Some wrongful acts are only torts—civil wrongs—but a tort can be a crime if it violates a duty to society as a whole, and if it meets a higher standard of criminal intent and harm. In a personal injury lawsuit, the victim pursues justice from the defendant. In a criminal case, the state or government is responsible for prosecution.
Examples of torts that can also be prosecuted as a crime include:
- Assault and battery. If someone punches another person in a fight, it’s both an intentional tort of battery and a criminal offense. The victim could file a personal injury lawsuit simultaneously with the state bringing criminal charges.
- Theft. Stealing property can be a tort of trespass and conversion against the property owner, while being a crime against the state.
- Wrongful death or homicide. The surviving family may file a lawsuit for wrongful death or survival actions, but the defendant could face charges that include manslaughter or murder.
- False imprisonment or kidnapping. The victim may file a lawsuit for unlawful detainment (even briefly) against their will. The defendant may be charged with kidnapping, unlawful restraint, or false imprisonment.
- Fraud. Fraud can be a tort in which the victim files a lawsuit for financial losses caused by intentional misrepresentation. However, the state can also prosecute fraud as a crime, theft by deception, or wire/mail fraud.
- Trespass. A property owner may file a lawsuit against a trespasser, and can recover damages or receive an injunction. The crime of trespass could result in fines or jail for offenders.
- Product tampering or dangerous conduct. An injured consumer can file a lawsuit for product liability, but federal and state statutes criminalize tampering with consumer products.
In other words, tort law focuses on victim compensation. Criminal law focuses on punishing the wrongdoer and protecting the public. The same act can trigger both, a criminal prosecution and a civil lawsuit for personal injury.
What is crime victim restitution?
Restitution is money that a criminal court orders a convicted offender to pay to their victim. It is designed to cover direct financial losses from the crime, such as:
- Medical or counseling expenses
- Lost wages from time off from work
- Property repair or replacement (for instance, vehicle repairs)
- Funeral costs in homicide cases
Restitution is part of the offender’s sentence, along with possible jail or probation. Because it is tied to the criminal conviction, the victim does not need to file a separate lawsuit or prove damages in civil court. However, restitution is usually limited: it covers only out-of-pocket losses directly tied to the crime, not broader damages like pain and suffering.
What is a personal injury lawsuit?
A personal injury lawsuit is a separate civil case the victim files against the defendant (or sometimes a third party). In a civil lawsuit, the victim must prove the defendant’s liability by a preponderance of the evidence, which means it’s more likely than not that the defendant caused the injury.
If the plaintiff (victim) is successful, they can recover a wider range of damages through a lawsuit than through crime victim restitution.
Damages from a personal injury lawsuit can include:
- Medical expenses (past and future)
- Lost income and reduced earning capacity
- Pain and suffering
- Emotional distress
- Loss of enjoyment of life
- Loss of consortium
- Punitive damages (in cases of extreme misconduct)
An acquittal in criminal court—or even a decision by the prosecutor not to file charges—does not prevent a victim from seeking compensation through a civil personal injury lawsuit.
Burden of proof in criminal prosecution vs. civil lawsuit
One of the main distinctions between criminal prosecution and a civil lawsuit is the burden of proof.
In a criminal case, the prosecution (government) has the burden of proof. They must prove the defendant’s guilt beyond a reasonable doubt. This means the evidence must be so strong that the average person couldn’t have any reasonable doubt that the defendant committed the crime.
In a civil lawsuit, the plaintiff (who initiates the lawsuit) has the burden of proof. They must prove by a preponderance of the evidence that the defendant was negligent. This means the plaintiff must show that the evidence supports their claim by a standard of “more likely than not”, or more than a 50% certainty.
The primary difference is the level of certainty required. "Beyond a reasonable doubt" is a much higher standard than "preponderance of the evidence". A criminal conviction can deprive a person of their freedom, so the legal system requires the government to present exceptionally strong evidence to overcome the presumption of innocence.
Since the burden of proof requires more certainty for a criminal conviction than for civil liability, it is possible for a defendant to be acquitted (found not guilty) criminally but still have civil liability.
A classic example of this is the case involving Heisman-winning football player, sportscaster, and actor O.J. Simpson. In 1994, Simpson was charged with murder in the deaths of his ex-wife, Nicole Brown Simpson, and her friend Ron Goldman. After a lengthy criminal trial, he was found not guilty. However, the families of Brown Simpson and Goldman filed a civil wrongful death lawsuit against O.J. Simpson. The court awarded the families a $33.5 million judgment after finding Simpson liable for their deaths.
Differences between restitution and personal injury damages
| Crime victim restitution | Personal injury lawsuit damages |
|---|---|
| Ordered by a criminal court after conviction | Filed by the victim in civil court |
| Limited to direct financial losses | Can include non-economic damages like pain and suffering |
| The victim does not initiate legal proceedings | The victim must initiate and fund the lawsuit |
| Payment depends on the offender’s ability to pay | The defendant’s insurance policy, employer, or a third party could cover damages |
| Requires a criminal conviction | Can be filed regardless of conviction |
When should a victim pursue restitution vs. a personal injury lawsuit?
| Restitution would be beneficial if... | A personal injury lawsuit is beneficial if... |
|---|---|
| The offender is convicted and the victim seeks reimbursement for direct financial losses | The victim suffered serious injuries with long-term costs and pain |
| The damages are modest and straightforward (such as property damage or short-term medical bills) | Damages are beyond out-of-pocket losses, including emotional distress, disability, and other long-term issues |
| The offender has the means to pay | Insurance or third-party liability is available |
| There was no conviction, or the criminal case did not address the victim’s needs |
Can a victim receive both restitution and personal injury damages?
Yes, but they can’t “double-dip.”
The amount of damages in a personal injury case could be reduced according to the amount provided through crime victim restitution.
Making this choice depends strongly on your specific case, the nature of the crime, the likelihood of conviction, the availability of the defendant’s assets, and other factors. If you’re in a position to choose one or both of these options, it’s best to consult a personal injury lawyer for guidance.
See our guide Choosing a personal injury attorney.