In restorative justice, we respond to a criminal wrongdoing by finding out can be done to make right the wrongs. Conventional civil litigation shares a similar restorative focus: What can the courts do to “make the plaintiff whole?”
The horrendous chemical spill affecting over hundreds of thousands citizens has resulted in the filing of many civil actions by lawyers in the Charleston area. One of the questions that will be addressed, as in any situation involving damages or injuries is this: “What can an injured party expect to recover?”
Before an injured party can recover any of their loses, that party, or the plaintiff, must demonstrate that there was a duty owed to the plaintiff; a breach of that duty and because of that breach, the plaintiff suffered damages. The party must also be able to show that the defendant could have foreseen the injury and acted to prevent the damages. Damages usually include:
- Physical injuries. With this chemical leak, as with any negligent or intentional injury, many people incur medical expenses. The defendants, or responsible parties, will have to pay those bills, as well future medical costs. In situations involving exposure to a chemical with unknown consequences, the defendants also may also pay for “medical monitoring” or the costs that the plaintiffs incur to monitor their health for future damages.
- Damage to property. In a typical car accident, the plaintiff has their car repaired or replaced. In cases involving the chemical leaks to the water supply, the damage to property could include damage to pipes or to structures.
- Lost income or wages. When a plaintiff is injured and misses work or loses business opportunities and can demonstrate that the loss is caused by the actions of the defendant, they can usually recover their lost revenue. Lost revenue is one of the significant losses sustained by the Charleston area since many businesses were closed for nearly a week while they were entirely without water.
- Punitive damages. In most civil cases, punitive damages are not awarded. Those are damages that go beyond making the plaintiff whole and are included to “punish” the defendant for wrongdoing. Punitive damages may be appropriate in this situation involving the chemical storage facility, if aggravated circumstances surround the wrongdoing are demonstrated. Many of the attorneys who have filed suit in Kanawha County are focusing on these types of damages since those damages can be high.
While restorative justice seeks to make right the wrongs, at the same time, we recognize that after many wrongdoings, there is no way to make the wrongs right, only to work in that direction. The same is true with cases involving civil wrongdoing. While seeking damages from those responsible for injuries, such as the water poisoning in Charleston can never give them the last week back or restore confidence that their children and family members have not been irreversibly damaged by the wrongdoing, paying for the damages is one way to work towards making the victims whole.