Small Claims Court Date Aug. 19th -- do I have a chance of winning?

[Macpark]

Hi,

I'll try to be brief here. To be clear, I am suing someone who assaulted me to recover the medical bills I incurred as a direct result of his attack.

In June 2007, I was assaulted by this guy I had briefly dated. My best friend and I were attempting to exit a bar here in Michigan. I saw this guy "Tony" ahead, to my left. As I passed him by, making my way toward the exit, I turned my back to him, avoiding him at all costs, and sort of walked sideways down the aisle to the the exit door.

Tony then SHOVED me in the back -- so hard that I staggered forward and had to brace myself to regain my balance. When I turned to face Tony, he shoved me AGAIN, this time in the chest, and shouted obscenities at me.

Then he took his left arm, and grabbed my right wrist, thus restraining me. Then he took his right arm and made a fist. It was then that he shouted, "Foolish mortal, tempt not my wrath!" (Yes, he's a nutbag who thinks he's a superhero.)

It was then I realized he wanted to cause me serious bodily harm. I certainly wasn't going to hit him -- I don't believe in violence -- so, terrified out of my mind, I tried to get away from him and spat at him. I got away, but only for a second, because he punched me HARD in the back of the neck.

The rest of the attack is kind of fuzzy, I was in shock -- my friend pulled my arm to try to get me away from Tony, and I remember all these people pulling Tony off of me.

I went to the Emergency Room the next morning, was told I had a "left neck contusion", etc...and was clearly injured. In one week, I saw FOUR different doctors. My medical bills total $2,079. I have receipts and reports from the doctors. The only thing I don't have receipts for are the meds I was prescribed, but I am claiming $300 -- which is a conservative estimate, since I was taking quite a few different medications.

I filed a police report, but ultimately it wasn't prosecuted. The "investigating" detective stated he couldn't find any other witnesses, which is false since I told him I had names of others who had witnessed the attack. It also didn't help that Tony and his "fake witness" stated that I just came out and spat at him out of nowhere (as if I just spit on people randomly) -- plus I think since this was a "gay issue" -- maybe they didn't want to deal with it (maybe I'm wrong, who knows).

I'm bringing a witness with me to Small Claims -- someone other than my friend I was with at the time (he lives in another state now)...and he saw me being assaulted and trying to get away from this nutbag, PLUS he saw me a week later, saw the redness/bruises on my neck, plus the fact that I couldn't move my head very well and was clearly in pain.

Do I have a chance of winning? How do I get the magistrate on my side (obviously I don't refer to my attacker as a nutbag, right?).

Bottom line is:

I was trying to exit a bar
Tony made that impossible
He attacked me and I did everything to get away from him
and he attacked me agagin


ADVICE, thoughts? Again, I'm trying to recover $2,079 in medical bills.

I know I can't include pain and suffering, but I'd like to.

 

[Zigner]

You would have needeed to file in June of 2009. You are outside the statute of limitations (for intentional torts.)

ETA: This means I think the ONLY chance you have is if the other party has NO clue.

 

[Macpark]

Actually, I've spoken to an attorney about this and there is a five year statute of limitations for civil assault for domestic violence, so I have my bases covered as far as that is concerned.

Michigan Revised Statute 600, Section 5805, paragraphs 4, 12, and 15."

Michigan Legislature - Section 600.5805

4) The period of limitations is 5 years for an action charging assault and battery brought by a person who has been assaulted or battered by an individual with whom he or she has or has had a dating relationship. This limitation applies to causes of action arising on or after January 1, 2003 and to causes of action in which the period of limitations described in subsection (2) has not already expired as of January 1, 2003.


(12) The period of limitations is 5 years for an action to recover damages for injury to a person or property brought by a person who has been assaulted or battered by an individual with whom he or she has or has had a dating relationship. This limitation applies to causes of action arising on or after January 1, 2003 and to causes of action in which the period of limitations described in subsection (2) has not already expired as of January 1, 2003.

(15) As used in this section, “dating relationship” means frequent, intimate associations primarily characterized by the expectation of affectional involvement. Dating relationship does not include a casual relationship or an ordinary fraternization between 2 individuals in a business or social context.

 

[Zigner]

Good job there - that is why it is always wise to speak to an attorney

With THAT said, your case is 50/50...

 

[cosine]

Let's hope the nutbag was properly served and doesn't show. That makes it easier.

 

[Macpark]

Good job there - that is why it is always wise to speak to an attorney

With THAT said, your case is 50/50...

Thanks! I only hope the magistrate who is hearing the case is familiar with this law (statute?).

I printed it out to bring with me, in case I have to prove that the SOS is 5 years...but I hope I don't have to prove it. The magistrate should konw that, right?

Yes, the SOL for regular injuries is 2-3 years in michigan in small claims court, but for civil domestic violence, the SOL is 5 years.

Never know if people know this or not.

 

[Macpark]

Let's hope the nutbag was properly served and doesn't show. That makes it easier.

That would be great! But, not likely. He'll show up if and when he gets served. He still hasn't been served yet and the court date is August 19th...so getting a little worried. (Although, the later he is served, the less time he has to prepare, and maybe even his "fake witness" won't be able to take time off work!

That would be awesome. But...too much to hope for.

 

[Zigner]

That would be great! But, not likely. He'll show up if and when he gets served. He still hasn't been served yet and the court date is August 19th...so getting a little worried. (Although, the later he is served, the less time he has to prepare, and maybe even his "fake witness" won't be able to take time off work!

That would be awesome. But...too much to hope for.

The later he is served is NOT good. You are likely too close to the hearing date to effect valid service.

 

[Macpark]

I hope not.

I just spoke to the court yesterday afternoon about it and they didn't say I was too close to the hearing date for valid service. But, hopefully he'll be served this weekend at least. I spoke with the process server, too.

 

[Ohiogal]

I hope not.

I just spoke to the court yesterday afternoon about it and they didn't say I was too close to the hearing date for valid service. But, hopefully he'll be served this weekend at least. I spoke with the process server, too.

Normally he needs served a week ahead of time to have proper service.

If he doesn't show, you have other issues.

Oh and you will have the issue of collecting.

 

[Macpark]

When I have my Small Claims hearing, how to I address this fact?

Okay -- I'm keeping this in the same thread I started before, so I hope nobody gets picky about it.

I just have questions about my actual hearing. When I go to my small claims suit on September 16th to recoup my medical expenses (almost $2,100) from my attacker (yes, he has the ability to pay). I filed a police report at the time of the assault, but the reason it wasn't prosecuted criminally is because, as I listed below:

My attacker and his "witness" lied to the investigating police officer. My attacker's "witness" was not even in the same room when I was attacked by this person.

Another reason it wasn't prosecuted is because the investigating detective allowed me to have just ONE witness. I told him I knew at least 4 witnesses, but he said he had already spoken to my one witness and he had enough information to proceed. On his police report he stated, "Neither party had another other witnesses even though they both said the bar was packed with people."

THIS IS UNTRUE! I did have more witnesses!

Now I just need to know if I should bring this up during my hearing? Should I tell the magistrate that the detective would not allow me to give him other names of witnesses to contact, even though there were relevant witnesses? (either the detective was homophobic, or too lazy to interview more people)

I just don't want the fact that this wasn't prosecuted criminally to affect my civil chances in small claims. I Have reports from FOUR doctors that I was indeed injured, plus two witnesses that I was attacked by this person.

Since I'm the plaintiff, I will speak first, and I need to know if I should beat my attacker to the punch by saying, Yes I know this wasn't prosecuted criminally, because... and then list some reasons. (Because I KNOW my attacker will mention he wasn't prosecuted criminally. And I need to know how to address this -- I do know criminal and civil law are differernt...)

THANKS, I appreciate any and all help TREMENDOUSLY!!

 

[FlyingRon]

Criminal prosecution isn't necessary for civil actions. I see no reason to bring it up and if the defense does you can counter this. The burden of proof is different for civil cases. It's only a "preponderance" of evidence that is needed not proof beyond all reasonable doubt (think OJ).

There's no reason not to disclose (and other reasons why you should) your witnesses. There's really no 'surprises' in a civil proceeding. If you bring one, then the defendant can quite reasonably ask for a continuance to come up with a response.

 

[Macpark]

Criminal prosecution isn't necessary for civil actions. I see no reason to bring it up and if the defense does you can counter this. The burden of proof is different for civil cases. It's only a "preponderance" of evidence that is needed not proof beyond all reasonable doubt (think OJ).

There's no reason not to disclose (and other reasons why you should) your witnesses. There's really no 'surprises' in a civil proceeding. If you bring one, then the defendant can quite reasonably ask for a continuance to come up with a response.

But what do I say when the person who assaulted brings up the fact that he wasn't prosecuted criminally? He also has other bad legal things to say about me that have nothing to do with the day he attacked me.

 

[ih8idiots]

The criminal case is entirely separate from the civil case. The ruling or lack there of in a criminal case is irrelevant to a civil case. Consider the O.J. Simpson case for example, he was cleared of criminal charges, yet in the civil case he was "found liable for the deaths of the 2 victims" and was ordered to pay restitution to the families in the amount of 33.5 million. He was found innocent in the criminal case yet was found guilty in the civil. This is the best example I can find to explain the difference in the 2 types of lawsuits.

If the defendant has "other bad legal things" to say about you, as long as they don't pertain to the case before the judge they should have no effect on the outcome.

 

[davidmcbeth3]

answer to Q? regarding criminal case

Simply say "sorry, I cannot answer that question because I dont work the the district attorney's office so I don't know what the status of the criminal case is" and thats true ... they may still arrest him & you just dont know.