by Trey Ross, M.Ed., Esq.
Topic: My child was attacked by a bully. What can I do?
Brief Answer:
Bullying can have harmful effects on child’s mental health. Thus, depending on the severity of the child’s suffering, the parent may need to consider counseling for a victim of bullying.[1]
As for legal remedies, there are a number of ways a parent can assert a child’s rights against a bully. Two legal solutions include (A) seeking a judgment of restitution for the physical harm caused to the child and/or (B) obtaining payment for physical harm caused to the child through a civil lawsuit.
- Seeking a judgment of restitution for physical harm caused to a child
Simply put, restitution is the repayment of expenses the victim had to pay as a result of being wronged. As I will discuss below, a judgment of restitution is a remedy provided though the state’s criminal procedure process. Such a judgment is relatively simple to obtain, and it will involve law enforcement, prosecutors, and/or judicial officials.[2] It is also important to note that the judge presiding over the criminal matter can choose not to award restitution even if he acknowledges that the victim is deserving of restitution from the wrongdoer.[3]
However, as I will discuss in section B below, the victim will still be able to bring a civil suit against the wrongdoer.[4]
- How much can a victim be awarded in restitution?
In Maryland, a court can order up to $10,000 in restitution in cases involving bad acts committed by children under the age of 18.[5] The $10,000 cap is the limit per child for expenses that resulted from a single incident, and the court can order the child or the child’s parent (or both) to pay restitution to the victim.[6]
However, if the victim requires more than $10,000, the victim can sue the wrongdoer for any additional amounts required.[7]
- What injuries can trigger a judgment for restitution? What evidence is necessary?
The victim who has been injured can be awarded a judgment of restitution for any of the following:
(i) medical, dental, hospital, counseling, funeral, or burial expenses or losses;
(ii) direct out-of-pocket loss;
(iii) loss of earnings; or
(iv) expenses incurred with rehabilitation
Note: This is not a complete list of those who can seek restitution since the law also provides protection for victims of things like property damage.
To prove the amount owed to the victim, “a written statement or bill for medical, dental, hospital, counseling, funeral, or burial expenses…”[8] can be submitted but other forms of proof can also be accepted if the court determines that they are “reliable, admissible, and established by a preponderance of the evidence.”[9]
Thus, the victim should keep a copy of all receipts and records related to the expenses incurred so that they can be presented to the court.
Note: While the “preponderance of the evidence” phrase seems intimidating, it simply means that the evidence is more likely true than not true.
- How does a victim go about seeking restitution?
The state has made it relatively simple and inexpensive for a victim to seek a judgment of restitution. For example, the victim does not have to pay a private attorney to seek this judgment since it can be handled by the local State’s Attorney’s office (i.e., a local prosecutor)[10] who will not require a fee.
However, the victim should be aware that restitution is a part of a criminal sentence.[11] So, as a part of obtaining restitution, the victim will have to make a State’s Attorney, law enforcement officer, or judicial official aware that a crime has been committed. After notifying the appropriate officials, the victim will be advised of his legal rights which include the right to restitution.[12]
- Is restitution guaranteed to the injured victim?
While seeking restitution is a relatively simple process, obtaining restitution through the criminal prosecution of the defendant may be impossible.[13] Maryland law provides that the court does not have to grant a judgment for restitution if (1) the defendant (or the person obligated to pay the victim) does not have the ability to pay, or (2) there are extenuating circumstances that make a judgment of restitution inappropriate.
Again, the victim may still be able to sue the defendant for the harm caused.[14] See Section B below.
- Obtaining payment for damages through a civil lawsuit
A child who has been injured as a result of bullying may be entitled to sue. Bullying may come in the form of several types of bad acts classified as “intentional torts.” For example, assault and battery are both “actionable” torts – that is, a victim has a right to sue the person that committed the assault and/or battery.
While some may assume that suing a child would be useless since most kids do not have income or assets, the child-bully is not the only person who could be held financially responsible. For example, the law allows the victim (or his representative) to sue both the child-bully and the bully’s parent if the parent directed, encouraged, or approved of the child’s act by accepting benefits from such act.
Note: Notice how this differs from the restitution law discussed above. When seeking restitution through criminal proceedings, the statute does not say that the victim has to prove that the parent of the child-bully approved of the bully’s acts, etc.
Also, unlike a judgment for restitution which is limited to $10,000, the amount of economic damages (e.g., medical bills) that the victim can sue for is not limited. In addition to repayment of expenses, the wrongdoer may also be responsible for punitive damages.
Punitive damages are a special type of payment that the court may require the wrongdoer to pay as a form of punishment for the bad act.
- What is assault?
An assault does not necessarily require physical contact. The key to an assault claim relates to a victim being placed in fear of physical contact. If someone’s actions would have placed an ordinary, reasonable person in fear of being harmed by the physical contact, then the victim has a basis for filing a suit for assault.[15]
Maryland’s highest court has held that an assault is “any unlawful attempt to cause a harmful or offensive contact with the person of another or to cause an apprehension of such a contact.”[16] Further, the tort of assault protects a person’s right to be free of the fear of a possible harmful or offensive contact by another person. This is a long held principal in Maryland and is based on the recognized right to be free from fear of violence since such fear is likely to result in breaches of the peace.[17]
Thus, the tort of assault occurs when a person (1) illegally attempts to cause harm to another person or illegally attempts to touch a person in an offensive way, or (2) attempts to place a person in fear that he or she will be harmed or offended by an illegal contact.[18]
So, an example of an assault could arise when a bully swings his fist at a victim – intending to strike the victim – but misses and thus fails to hit the victim. If the court finds that an ordinary and reasonable person would have been placed in fear by the action, the victim could bring an assault claim (i.e., sue the bully for intentionally placing him in fear of being struck).
The swinging of a fist is just one way a bully could assault a victim. Depending on the circumstances, an assault may be caused by other acts of aggression like “bucking” at the victim or by verbal threats (e.g., the words “I’m about to black your eye!” could constitute an assault in some instances.)
An assault can become a battery.[19] See the discussion of battery below.
Note: Maryland’s criminal law recognizes various degrees of assault which were not discussed here.
- What is battery?
If a bully has intentionally touched your child without consent, you may be able to sue for battery. Maryland’s highest court provides that:
“A battery is the intentional touching of a person without that person’s consent. Touching includes the intentional putting into motion of anything which touches another person, or which touches something that is connected with, or in contact with, another person. In order to be a battery, the touching must be harmful or offensive. A touching is harmful if it causes physical pain, injury or illness. A touching is offensive if it offends the other person’s reasonable sense of personal dignity.”[20]
So, as would be expected, a punch, a kick, or bit could all constitute a battery for which a bully could be held financially responsible. In addition, an offensive touching such as a shove – or any other physical contact intended to show disrespectful – could also constitute an actionable battery.
Note: The word actionable is another way of saying that a person can “bring an action” (i.e., sue).
[1] Rittakerttu Kaltiala-Heino et al., Bullying at school—an indicator of adolescents at risk for mental disorders, in Journal of Adolescence, 23, 661 (2000).
[2] Chaney v. Maryland, 918 A.2d 506, 511 (Md. 2007).
[3] Md. Code Ann., Crim. Proc. § 11-605 (LexisNexis 2013).
[4] Id. § 11-603.
[5] Id. § 11-604.
[6] Id.
[7] Id. § 11-603.
[8] Crim. Proc. § 11-615; See also McDaniel v. State, 45 A.3d 916, 920 (2012).
[9] Juliano v. Maryland, 890 A.2d 847 (Md. Ct. Spec. App. 2006).
[10] Chaney, 918 A.2d at 512 (providing that victims “may request restitution directly or may ask the prosecutor to request it on their behalf”).
[11] Id.
[12] Id.
[13] Crim. Proc. § 11-605.
[14] Crim. Proc. §11-603.
[15] Spencer v. Maryland, 30 A.3d 891 (Md. 2011) (discussing assault in the context of a criminal case); See also Watson v. Peoples Sec. Life Ins. Co., 588 A.2d 760 (Md. 1991) (providing that an “assault `has substantially (if not exactly) the same meaning in our law of torts as in our criminal law'”).
[16] Watson, 588 A.2d 760.
[17] Id.
[18] Lemon v. Early, 1996 Md. App. LEXIS 189, at *48-49 (Md. Ct. Spec. App. Dec. 24, 1996).
[19] Watson, 588 A.2d 760 (providing that a battery is the consummation of an assault).
[20] Mole v. Jutton, 846 A.2d 1035, 1049 (Md. 2004).
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