Atlanta Injury Law Blog

Jennifer Wilbanks went for a run a few evenings before the big wedding she had planned, and kept running. She took a cab to the bus station and turned up in Albequerque several days later with a false report that she had been abducted. A media feeding frenzy ensued, helping to boost cable news ratings as the Michael Jackson trial becomes old news. Now the Gwinnett County District Attorney is talking about criminal prosecution and the City of Duluth wants her to pay for the extensive police search.

Who cares, and why? (Frankly, I preferred the "Runaway Bride" movie starring Smyrna native Julia Roberts.) Perhaps most disturbing question is the similarity to the fable of the little boy who cried wolf. What will be the implications when another young woman goes missing, and really is kidnapped? Will authorites then falsely assume they have just another case of a someone with a screw loose ducking out on a challenging situation?

What do you think of the legal issues involved? Can or should she be prosecuted on a criminal charge? Why or why not? What grounds, if any, are there for a civil action to require restitution for the costs of the search?

Below are links to just a few of the many news stories this case has generated. Please post your comments on the legal implications only.

The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).

I am a resident of South Florida & alhough this scenario doesn't arise that often, our two states share the distinction of having two of the most infamous cases in recent history.

Criminal charges may well be in order, but my concern is with the government's attempt to initiate a separate civil suit against her for the cost of their search efforts.

I can see social or public policy reasons for wanting to make her repay the cost of the state's search efforts, but there are some significant constitutional roadblocks to do doing much at all.

The Wilbanks incident in Georgia is similar to the Florida story of James Cuddy back in 2001. In that case, however, Cuddy did not deliberately lie to authorities about his situation. He simply drove-off across the country and never told anyone he was leaving or where he was going. The Boca Raton Chief of Police threatened a lawsuit against Cuddy to recover their expenditures on his case, but it was eventually settled after family members and his employer donated $5,000 to the department.

Robert Jarvis, a law professor at Nova Southeastern University, commented that if authorities decided to sue Cuddy for damages, their chances would not be that good. Government lawyers would have to prove he somehow had a civic duty to tell people where he was going. "I think it's very difficult to prove," Jarvis said. "If I want to disappear, I have the right to do so."

Although the Wilbanks case in Georgia is somewhat different in that she eventually lied to police about being abducted, it appears the outcome would still be the same should the government consider filing a civil lawsuit against her to recover their investigative costs.

If the person is convicted in a criminal trial the court can impose restitution for the amount of investigative costs. Section 938.27, Fla. Stat. (2004); See also Kimberly J. Winbush, Annotation, Persons Or Entities Entitled To Restitution As "Victim" Under State Criminal Restitution Statute, 92 A.L.R. 5th 35 (2001-04), §§19-21(b) (Westlaw: 92A.L.R.5th35) (collecting cases for and against government & law enforcement agency recovery of costs).

Also, under the Firefighter's Rule, individual public safety officers (i.e. - police, firemen) cannot recover damages for injuries caused by a party whose negligence created the need for the officer's presence or response. While most states have either abolished or relaxed this rule (e.g., Section 112.182, Fla. Stat. (2004)), it never barred recovery for willful or deliberate injurious acts. Martin v. Gaither, 477 S.E.2d 621 (Ga. App. 1995); Trammel v. Bradberry, 568 S.E.2d 715 (Ga. App. 2002) (recovery for intentional tort of assault not barred; officer shot by mentally ill arrestee) ; See also, H. Lee Treadaway, Recent Developments in Civil Procedure, 26 Am. J. Trial Advoc. 449, 483-88 (Fall 2002) (Westlaw: 26AMJTA449) (history & modern status of firefighter's rule in both state & federal courts).

Under the Free Public Services Doctrine or Municipal Cost Recovery Rule, however, a government entity cannot recover from a tortfeasor the costs of public services caused by the tortfeasor's wrongdoing. Only when there is a specific enabling statute permitting such action can the government recover against citizens for the expense of providing public and emergency services. See Anne Giddings Kimball & Sarah L. Olson, Municipal Firearm Litigation: Ill Conceived From Any Angle, 32 Conn. Law Review 1277, 1296-1301 (Summer 2000) (Westlaw: 32CTLR1277) (collecting cases); Timothy D. Lytton, Should Government Be Allowed To Recover The Costs Of Public Services From Tortfeasors?: Tort Subsidies, The Limits Of Loss Spreading, And The Free Public Services Doctrine, 76 Tulane Law Review 727 (February 2002) (Westlaw: 76TLNLR727) (collecting state & federal cases and arguing for the elimination of the free public services doctrine).

An interesting example of such statutory authorization is found in Article 42.12 of the Texas Code of Criminal Procedure at Section 19(g) which allows law enforcement agencies to recover the costs of providing public notice of a sex offender by attaching the bill for the notice to the registrant's municipal utility bill.

Another example would be the Environmental Protection Agency's (EPA) ability to recover investigation and cleanup costs from private companies or individuals under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as the "Superfund" law. See also Kodiak Island Borough v. Exxon Corp., 991 P.2d 757 (Alaska 1999) (free public services doctrine abrogated by state statutes imposing strict liability on vessel owners for clean-up costs caused by oil spills).

If the state prosecutes her in criminal court and gets a conviction they have a better procedural opportunity to recover at least some of their investigative costs from her by way of restitution. Absent specific enabling statutes, however, a civil lawsuit won't allow for such recovery by the government against it's citizenry no matter how irresponsible or outrageous their conduct.

Georgia's restitution statutes (OCGA 17-14 et seq.) were strengthened this year by the 2005 Georgia Laws Act 20 (H.B. 172) in ways which make them more sympathetic to crime victims.

In Jones v. State, 542 S.E.2d 584 (Ga. App. 2000) the court outlined the three main considerations when imposing restitution: (1) a restitution hearing; (2) consideration of the factors outlined in OCGA § 17-14-10; and (3) findings of fact . . . Under OCGA § 17-14-9, "the amount of restitution ordered may be equal to or less than, but not more than, the victim's damages," which are further defined in OCGA § 17-14-2(2) as "all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced." Citing Anderson v. State, 226 Ga.App. 286, 486 S.E.2d 410 (1997).

Proximate causation is certainly a necessary consideration. Dorsey v. State, 426 S.E.2d 224 (Ga. App.1992) (in determining restitution, proximate cause is a question of fact for the factfinder and there can be more than one proximate cause of an injury supporting a claim of restitution).

Georgia includes government entities in its definition of victims for restitution purposes (OCGA 17-14-2(9)) while Florida does not (Section 775.089(1)(c), Fla. Stat. (2004)). As such, it's conceivable that law enforcement might be able to recover damages or costs in an appropriate case.

As noted above in Jones (Ga. App. 2000), Georgia, however, has an interesting provision which presumes the underlying ability of the victim to file a civil cause of action against the defendant. "The statutory scheme requires the court to determine what type of civil action could be maintained by the victim, and to determine what the proper measure of damages would be in such a civil action." Lomax v. State, 200 Ga.App. 233, 234, 407 S.E.2d 462 (1991).

In Garrett v. State, 1985, 175 Ga.App. 400, 333 S.E.2d 432 the court said that:

"While an order of restitution in a criminal case "shall not bar any civil action against the offender," OCGA § 17-14-11, the restitution mechanism is an attempt to avoid the necessity of a separate civil action and to determine the amount of loss caused by the criminal act in the usually earlier criminal proceedings rather than in a second and more protracted civil suit. It appears then, that the objective is to resolve and conclude the whole matter in a single court proceeding, in the context of the criminal action, in a manner acceptable to the parties and taking into account their relative positions. Consequently the maximum amount of damages must be those recoverable in a civil action, as the Code provides."

This appears to eliminate any effort by the government to recover damages against a defendant through criminal restitution if such recovery would otherwise be barred under the free public services doctrine.

Of course, prosecution and investigative costs can nonetheless be imposed on the defendant. OCGA 44-5-210 (lien on defendant's property); OCGA 17-11 et seq. (costs assessed against defendant). Martin v. State, 376 S.E.2d 888 (Ga. App.1988) (expenses incurred in county solicitor's office during investigation and prosecution properly chargeable as restitution against convicted defendants).

In the Wilbanks case, however, the facts may defeat any effort to recover the costs of their investigation. Up until the point she spoke to her fiancé on the phone, she never lied to anyone about being abducted. She simply chose to run away. Although she lied to Georgia law enforcement during that conversation (after the chief of police joined in on the phone), she recanted her story within a few hours after being questioned by authorities in New Mexico. Any investigative or search expenses incurred during that interim would be minimal at best.

A prominent appellate attorney in Central Florida recently commented that, "There are also jurisdictional and due process questions of constitutional magnitude where someone leaves a state or country and is then punished for not knowing what was going on back home in the "home" state or, if they know, not taking steps to contact someone back in the home state and call of a search."

Although Georgia's criminal restitution law allows government entities to recover damages or losses in the same way as individual citizens, it operates on the presumption that an underlying civil cause of action exists. Such a claim would fail in this case because a civil lawsuit against the defendant is precluded by the free public services doctrine.

And while the government might be able to recover under separate laws authorizing the imposition of investigative and prosecution costs, those claims are greatly diminished because she never lied to authorities or anyone else when she initially left. It's not a crime for an adult to run away. When she did finally lie about being abducted, Georgia officials at that point ceased their search efforts because they learned she was safe in Albuquerque. Within a few hours she then recanted her story & told the truth. As such, all the massive expenditures prior to her phone call are not recoverable as part of any criminal act & any search or investigative expenditures after her phone call, if any, are extremely minimal.

Very useful comments - good to read

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