On April 9, 1976, James Hetherton was shot in the head during an armed robbery at the Wilmington, Del., Jack-in-the-Box where he worked as a security guard.
Partly paralyzed, Hetherton sued for damages. But the target of the suit was not the Jack-in-the-Box, nor was it the robber. It was the Wilmingtonn Sears & Roebuck store that sold the bullet that struck Hetherton that day.
Last February, the 3rd U.S. Circuit Court of Appeals ruled that Sears could be held liable for Hetherton's plight because in selling the bullets the store had not followed an obscure state law requiring that two citizens attest to the identity of the purchaser.
Hetherton's suit is part of a legal breed called victim's rights, a new movement with dramatic potential.
In other recent cases:
A mental hospital was judged liable for a murder committed by someone it had released.
A warden was made to pay for a crime committed by an escapee from his prison.
A New Jersey psychotherapist was held potentially responsible for an assault committed by one of his patients.
The parents of a girl murdered by a criminally insane man are suing parole officials in California for letting him out of prison. That case, Martinez vs. California, is before the U.S. Supreme Court.
The suits may become an important new force in the criminal justice arena.
Parole authorities might be forced to think harder and longer about whom they turn loose. Prison officials would have new, personal incentives to prevent escapes. Negligent psychiatrists, businessmen, employers and landlords could find themselves in multimillion-dollar jeopardy for crimes they themselves did not commit.
And victims would get a new and potentially powerful tool that goes well beyond two other options: the victim compensation programs instituted in some states and the increasingly frequent suits against often-penniless perpetrators of crime. Neither of those options for redress has much value as a deterrent.
"It's fine for a guy to be paid $10,000 after he's been hit on the head,' said Frank Carrington, a Virginia Beach, Va., lawyer whose recently organized Crime Victims Legal Advocacy Institute is loading the movement. "But the fact is, he'd really rather not have been hit on the head in the first place."
Carrington says he is anxious to avoid "second guessing" decisions of parole authorities and private parties. The victim's rights suits, he said, attack gross negligence, not simple mistakes of judgement made in good faith.
Carrington has become the guru of the lawyers who handle victim's rights suits. From his home on the ocean, Carington, an ex-treasury agent and undercover investigator, consults each week with dozens of lawyers looking for legal information on victim's rights.
"These suits are designed to be preventive," he says. "They can force change.That's what makes them different."
The legal underpinnings are different, too, and at the moment they are shaky. These "third-party" suits are not your ordinary negligence cases, where someone slips on your sidewalk and sues you because you didn't clear the ice.
The defendants in victim's rights cases are two or three steps removed from the actual injury. Their actions did not cause the crime. They may never have heard of the victim or the criminal and they clearly never had any intent to harm.
But according to the rulings in these cases, they could have or should have anticipated what was to happen. And their failure to take preventive steps can be considered gross negligence.
Parents of a murderer victim in California a few years ago won a judgment from a psychiatrist who had failed to warn them of a patient's expressed intent to kill their daughter, which the patient ultimately did.
In New Jersey, the family of a woman killed by a psychiatric patient won the right to sue the patient's psychotherapist for wrongful death last June because the psychotherapist had failed to warn the victim that his patient was dangerous. "A psychiatrist or therapist may have a duty to take whatever steps are reasonably necessary to protect an intended or potential victim of his patient when he determines, or should determine . . . that the patient may present a probability of danger to that person," a New Jersey Superior Court judge ruled.
In the state of Washington, a prison warden who ran a "Take a Lifer to Dinner" program, under which inmates were allowed outside for brief periods, was sued after one of the dinner guests escaped and murdered a pawnbroker. The warden was held negligent because he had neither legislative authority nor administrative permission to let the inmate out.
In 1976, singer Connie Francis won a jury award of $2.5 million from Howard Johnson Motels Inc. after she was raped by a man who entered her room. She successfully argued that the motel rooms had inadequate door locks, which could be opened with "a little jiggling."
In January 1975, a Montgomery County jury awarded damages to a rape victim's husband, who argued that the El Dorado Towers apartments in White Oak had been negligent by employing a dangerous furniture mover, who committed the crime.
Another case, called a "watershed" by Carrington, also originated in the Washington area. In October 1973, a 14-year-old Madeira School student, Natalia Semler, was brutally murdered by John Gireath, who previously had abducted another Madeira student.
After the earlier abduction, Gilreath was enrolled in the Psychiatric Institute of Washington for treatment under a court order that required his confinement.
Without prior approval from the court, Gilreath was placed on out-patient status. It was then that he abducted Natalia, tied her up, gagged her, molested her and left her to freeze to death at the foot of a tree.
Natalia's parents sued the Psychiatric Institute and a psychiatrist there and won. The U.S. District Court ruled that the Psychiatric Institute should not have released Gilreath without court approval.
If that was a watershed, the California case before the Supreme Court may become the landmark. The Martinez family is appealing the denial of their suit against parole authorities for the death of their daugther because of a state law granting absolute immunity from such suits to parole officials.
The prospect that that immunity, which is also enjoyed by officials in numerous other states, might be revoked by the Supreme Court has prompted the first strong official reaction to the victim's rights movement, including intervention by the federal government.
The Solicitor General has cautioned the Supreme Court that striking down immunity could lead to a barrage of lawsuits, from prisoners denied parole as well as from crime victims, and "would impose an intolerable burden that could discourage qualified persons" from accepting parole board positions and "hinder the free exercise of their independent judgment."
The end of immunity "might well spell the end for the parole system," said lawyers for the State of Ohio in an amicus brief in the Martinez case. It could "lead to a sacrifice of the strong policy encouraging rehabilitation in favor of the countervailing policy of deterrence," said New Jersey officials. "This clearly would be an undesirable result."
But to Carrington, deterrence is the whole point. Victim's rights suits are designed to bring the "faceless bureaucrats" into accountability, to force them to confront the now remote and anonymous victims of wrong decisions.
"Once as parole official knows that he can be sued personally he's not going to release someone who's dangerous. If a parole board lets out a check forger and he burns down an orphanage, the members shouldn't be liable. It wasn't predictable."
But in the Martinez case, he said,parole authorities released a sex offender who had been assessed as incurably insane and who committed his second crime at the scene of his first one.
"That," says Carrington. "is gross negligence."