can I sue not so good samaritan

[troubles]

What is the name of your state?
INDIANA
My wife,18 month old son and 4yr old daughter was shopping at walmart, since my daughter turned 4 she has had violent temper tantrums, I am not one for corporal punishment, but certain times it is necessary. this was one of those days, as we were shopping our daughter started misbehaving, my wife and I decided I would deal with it at the car, we were in the back of the store and parked in the back of the parking lot. all the way to the car my daughter was SCREAMING, KICKING PUNCHING, AND TRYING TO BITE. one I got to the care I put her in the seat, tried to calm her, to no avail, so I turned her over and swatted her butt, 4 times, then turned her over and told her she was bad and needed to calm down that mommy would be here soon, she got worse, and wanted to go back into the store. she was still flailing about, I told her again to calm down, or she would be spanked, Unfortunately she did not listen again I gave her 4 swats, finally I picked her up she calmed down. I had noticed a woman a few cars away she had called the police, and embellished what had happened, and basically down right lied. in fact she basically said I was beating my daughter uncontrolibly.
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because of the lies of this woman even though my wife tried to tell the police that I am not even the disciplinarian, I try to do everything I can to not spank the police officer took me to jail, I am charged with a class D felony assault and battery on a minor. My attorney is confidant this will be dropped, yet the charges will stay on my record, it has cost our family financially, and has a huge mental strain on both of us, we have the full support of both sides of the family, and our child's doctor. all this because this person who could not see because of tented windows on our car, and only herd the screaming of my daughter.
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it is also sad because the other day she was with her grandma and started to run away when she called for her she ran to her quick and said I am sorry grandma I don't want you to go to jail like daddy I will stay with you, she thinks it is her fault, she is 4 she should not be worried about such things. this person has caused us so much, I am a great dad but now I have nightmares, and continue to think of that day and it is effecting my work.
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Our child's Doctor is the one who suggested we seek legal advice and sue this woman so she does not destroy someo0ne else's life, and maybe she will think before doing what she did.
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my current Lawyer is not a civil lawyer and said I need to consult one, so do I have a case? can I sue, for the money I lost because of bail, loss of work attorney fees, extreme mental anguish on myself and family, plus the humiliation, and the fact that I now have a record . even when the case is dropped?

 

[Zigner]

Sue the woman for what reason? Because she reported a 4 year old being assaulted by an adult?

What if she wasn't your child - wouldn't you WANT someone to report that?



Of course, the standard answer is that you can sue anybody for anything...that doesn't mean you'll win though

 

[quincy]

Geez, I think I probably would have called the police, too, had I witnessed a man fighting to get a screaming, kicking, biting and punching little girl into his car. If this woman HADN'T reported this to the police, just driven merrily away and ignored the whole thing, and it turned out that this little girl was, indeed, your daughter but the man was instead some creepy guy cruising the mall for little girls, you would have felt a lot worse about it than you do now, I can guarantee it.
Can you sue her? Yes. You can sue anyone at anytime for any reason whatsoever.
Would you win such a suit? I doubt it.

 

[kdhohio]

I am not a lawyer. Keep that in mind while reading my post. Yes you can sue her. Anyone can sue for anything. But I doubt you will win anything. The lady has a right to report to the police/or CPS any actions she feels is child abuse. The complaint was heard by the police and they decided it was enough to place you under arrest. Then it was up to the prosecutor. Now the laywers will hash it out and it will be decided by a judge. Don't be surprised if you get a visit from CPS. Police, prosecutors and CPS take their job very seriously in protecting those without a voice. Personally I feel 8 smacks on a 4 year old is excessive. Maybe you can use this experience as a way to learn other options to control your child. Maybe you should apologize for your behavior and explain to your daughter..that you behaved badly and that is why you must go to court to be punished for your behavior...not hers.

 

[Fl_renter]

Coporal punishment is LEGAL in Indiana. Next time, take your daughter to the bathroom to spank her or since you claim you are not the disciplinarian, let your wife handle it!

The woman was right in calling the police, even if she was wrong in the details of what happened.

 

[BoredAtty]

I agree that you have no case.

To win a suit for malicious prosecution, generally you must prove that the bystander (1) intentionally and maliciously caused a legal action to be instituted or pursued that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution.

It doesn't sound like you can prove the first two elements even if you ultimately beat the rap.

 

[Just Blue]

And perhaps you and your wife could go to a child behaviorist to find other ways of discipling your child...and have ab eval done on the child to make sure there isn't a problem with her.

 

[troubles]

Geez, I think I probably would have called the police, too, had I witnessed a man fighting to get a screaming, kicking, biting and punching little girl into his car. If this woman HADN'T reported this to the police, just driven merrily away and ignored the whole thing, and it turned out that this little girl was, indeed, your daughter but the man was instead some creepy guy cruising the mall for little girls, you would have felt a lot worse about it than you do now, I can guarantee it.
Can you sue her? Yes. You can sue anyone at anytime for any reason whatsoever.
Would you win such a suit? I doubt it.

The point is not that she called the police, it is that she lied about what she saw, she only heard my daughter screaming, and assumed the rest. my wife is a criminal justice major, we have talked to or daughters doctor, who knows us very well, the fact that I spanked her is something I do not ever need to do in-fact that was only the second time, I did not use any real force in fact because I can usually get her to behave by simply raising my voice it is just that she has been testing the limits since she turned 4. the spanking was not used to hurt, but to be more mental, not physical, I was in complete control of my actions, to give a example of how hard I spanked her there was no sound, in other words I can guarantee not even a red mark was left. but I needed to get my point across to my daughter that throwing temper tantrums is not going to get her what she wants.
it seems many of you misunderstand the situation, I may have came across wrong.
we are very good parents, this charge even though it will be dropped will haunt us, because we have planed after our children are grown to become foster parents, because we enjoy raising children.
the reason I want to sue is partly because of that it is a form of defamation of character. we have just gotten the surveillance tapes of the incident. and it clearly shows the woman lied through her teeth, she only heard my daughter scream, then told the police I through her in the car, the tape shows I did not, she said I WAS SHAKING HER IN A VIOLENT WAY the tape shows that I WAS HOLDING HER AND SHE WAS JERKING ABOUT. she said I was spanking with out letting up, for a long period of time, in Indiana you are allowed to spank up to 20 times as long as no bruises are left, I spanked her lightly 2 times 4 swats each. UNFORTUNATALY AT THE TIME THE TAPE WAS NOT AVALIBALE, so the officers went on the words of a obviously attention seeking , or at the least a person who never saw a child through a temper tantrum. what ever the case she went on what she heard and what she thought happened now with the tape as evidence it clearly showed the woman flat out lied. and we have very clear proof, the tape added with the fact that she wrote a statement under oath that what she saw was the truth, and it clearly is all lies.
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I hope that I have made it more clear as to the situation, and the evidence that showed what this person claimed is so utterly crazy, and because of it caused my family financial, mental, and physical hardships.

 

[The Occultist]

the reason I want to sue is partly because of that it is a form of defamation of character.

Please do some very minimal searching of the forum to see what the general consensus is on going through a defamation suit.

 

[quincy]

troubles -
I have children, and I know what a challenge they can be at times. And you did the right thing by removing your child from the store when she started to throw a tantrum. I know it is embarrassing to have other people look at you like you're a bad parent when a child starts to act up - especially since almost every one who witnesses a child's tantrum always thinks they could handle the situation better.
I have little doubt that you are a good parent who loves his child.
That said, if you were to ask 5 different people who saw, say, a robbery, what happened, you would get 5 different responses. People see things differently. That is why witness testimony is difficult. A videotape may show what actually happened, but what is important is what the woman was thinking when she called the police.
I think, just from hearing your story, that I would have reacted the way the woman who called the police did. Even if I only heard the screams of a child, I probably would have called the police. There are too many news stories we've all heard now that play out in our heads when we see or hear children screaming in a store parking lot.
It is unfortunate that you were arrested. But I cannot see anyone believing that this woman acted maliciously. If you were to sue her for defamation of character, you would spend far more money than you have already, and you would expend a lot of time, and your chances of winning any suit like this are slim to none.
The positive thing about this experience is that I bet you have a beautifully behaved 4 year old when you go shopping now, huh?!

 

[fairisfair]

The point is not that she called the police, it is that she lied about what she saw, she only heard my daughter screaming, and assumed the rest. my wife is a criminal justice major, we have talked to or daughters doctor, who knows us very well, the fact that I spanked her is something I do not ever need to do in-fact that was only the second time, I did not use any real force in fact because I can usually get her to behave by simply raising my voice it is just that she has been testing the limits since she turned 4. the spanking was not used to hurt, but to be more mental, not physical, I was in complete control of my actions, to give a example of how hard I spanked her there was no sound, in other words I can guarantee not even a red mark was left. but I needed to get my point across to my daughter that throwing temper tantrums is not going to get her what she wants.
it seems many of you misunderstand the situation, I may have came across wrong.
we are very good parents, this charge even though it will be dropped will haunt us, because we have planed after our children are grown to become foster parents, because we enjoy raising children.
the reason I want to sue is partly because of that it is a form of defamation of character. we have just gotten the surveillance tapes of the incident. and it clearly shows the woman lied through her teeth, she only heard my daughter scream, then told the police I through her in the car, the tape shows I did not, she said I WAS SHAKING HER IN A VIOLENT WAY the tape shows that I WAS HOLDING HER AND SHE WAS JERKING ABOUT. she said I was spanking with out letting up, for a long period of time, in Indiana you are allowed to spank up to 20 times as long as no bruises are left, I spanked her lightly 2 times 4 swats each. UNFORTUNATALY AT THE TIME THE TAPE WAS NOT AVALIBALE, so the officers went on the words of a obviously attention seeking , or at the least a person who never saw a child through a temper tantrum. what ever the case she went on what she heard and what she thought happened now with the tape as evidence it clearly showed the woman flat out lied. and we have very clear proof, the tape added with the fact that she wrote a statement under oath that what she saw was the truth, and it clearly is all lies.
:
I hope that I have made it more clear as to the situation, and the evidence that showed what this person claimed is so utterly crazy, and because of it caused my family financial, mental, and physical hardships.

I personally am quite curious. You could not control this kicking biting, swatting screaming child, and yet, you were able to apply 4 designed gentle swats to the bottom or this writihing little wild person??? How exactly does that happen???

Besides which, according to you the charges have NOT yet been dropped. I think I would certainly be waiting to see if I was going to be charged and/or convicted of a crime, BEFORE I considered filing suit against the person who reported me. A conviction just might make your case a little dicey.

 

[troubles]

I personally am quite curious. You could not control this kicking biting, swatting screaming child, and yet, you were able to apply 4 designed gentle swats to the bottom or this writihing little wild person??? How exactly does that happen???

Besides which, according to you the charges have NOT yet been dropped. I think I would certainly be waiting to see if I was going to be charged and/or convicted of a crime, BEFORE I considered filing suit against the person who reported me. A conviction just might make your case a little dicey.

The major part of the tantrum was from the back of the store all the way to the car witch was parked in the back of the lot. my daughter wanted to go back into the store and was trying to get loose to do so. I told her that if she did not settle down and quit screaming I would spank her, I seriously never need to spank, this was only the second time, and the reason I did not have to use force is because I feel it is a mental discipline, because if she acted up bad enough for dad to spank her then it is a serious situation, because dad does not spank , it is the act alone that is the punishment.
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as far as being able to apply as you said she is 4 yrs old I was holding her in please in the front of the car, using a firm voice to let her know that if she did not quit down 1 she would most definitely not go back in the store and two that I would follow through on my statement of spanking her, she continued screaming, the kicking part was over but instead she was trying to get out of the seat and the car so I turned her over the front seat and swatted her.
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I understand with the way the world is today children are being abused, or kidnapped, I can look at it from that point, but this is my first Born, my daughter, she is my Baby, There is nothing I would not do to keep her from harm. and being accused of hurting a person you love that much is something that is indescribable, never in a million years would I have thought that this type of accusation would be put upon me, because I always felt like I was a super good dad, now I am seriously depressed and I want to be super dad again.
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the charges will be dropped as I said we just got a hold of the video tape, but it is a process, it clearly shows that the lady went on what she heard instead of what she saw, and then she embellished upon it, and the reason I feel I have a case is because she put a written statement of the incident, and in it she swore that it was the truth, yet now we have proof that she over reacted to the point of causing my arrest,
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I appreciate the responses yet most of them hurt because they seem to be just like tat woman judging me without knowing me, every person who knows us including our child's doctor knows how much pride I have in my children, and that I could never hurt them . you see no mater what I realise that kids are kids they are young and still learning, so they might embarrass me like the temper tantrum in the store witch was the reason for going outside, but they can't make me angry to the point of loosing control and harming them, ..

 

[Fl_renter]

I agree the woman was definitely wrong to make things up. Is that what you are looking for, validation of your hurt feelings? Suing her is not going to erase what she did. Why not let it go and chalk it up to lesson learned.

As for your child being your first, etc... and you would never harm her, that's BS. Parents abuse their own children everyday and no one ever does a thing about it. I am sure other foster parents would agree with me that the majority of children we see in our homes have been abused by their OWN parents than by someone else.

 

[BoredAtty]

the reason I want to sue is partly because of that it is a form of defamation of character. we have just gotten the surveillance tapes of the incident. and it clearly shows the woman lied through her teeth, she only heard my daughter scream, then told the police I through her in the car, the tape shows I did not, she said I WAS SHAKING HER IN A VIOLENT WAY the tape shows that I WAS HOLDING HER AND SHE WAS JERKING ABOUT. she said I was spanking with out letting up, for a long period of time, in Indiana you are allowed to spank up to 20 times as long as no bruises are left, I spanked her lightly 2 times 4 swats each. UNFORTUNATALY AT THE TIME THE TAPE WAS NOT AVALIBALE, so the officers went on the words of a obviously attention seeking , or at the least a person who never saw a child through a temper tantrum. what ever the case she went on what she heard and what she thought happened now with the tape as evidence it clearly showed the woman flat out lied. and we have very clear proof, the tape added with the fact that she wrote a statement under oath that what she saw was the truth, and it clearly is all lies.

I don't think you have a case for defamation either.

Statements made to police are generally protected by "qualified privilege." That is, statements that may otherwise be defamatory will be protected when made to police. To overcome this privilege in a defamation suit, you must prove that the bystander acted with malice. The policy behind this rule is to prevent a chilling effect where people are afraid to report possible crimes for fear of being found liable for defamation in subsequent lawsuits.

You claim that the bystander "went on what she heard and what she thought happened." If the woman thought that you had done the things that she accused you of doing, clearly she did not act with malice even if she was ultimately wrong.

 

[lizjimbo]

Sorry for your past, present, and future

I went to grade school in the fifties, in El Paso, Texas. Corporal punishment was quite common in the school. I must admit, I deserved to get my ass whupped by the Principal every once in a while. Ya see, in the fifties and sixties, this country wasn't experienceing the insanity of random violence that is so prevalent in our society today, especially amongst the youth. Now a days kids are taught at the public schools on how to dial 911 if they think their parents are mistreating them. So people say that if certain rules are not enforced then that puts all children in jeopardy. So we must not spank even one child, lest you do, then pay the piper. Nah, better yet, let our misguided goodness lead us in to anarchy. Hey, then we can start over.