Tennessee has joined the vast majority of jurisdictions holding that a defendant convicted of a crime cannot re-litigate that issue in a subsequent civil suit involving the same conduct. This decision makes it critical that defendants likely to face both criminal and civil charges arising out of the same incident obtain competent criminal and civil representation because a criminal conviction will bar them from challenging that finding in the civil suit seeking money damages out of the incident.
Before last week’s decision by the Supreme Court of Tennessee in Bowen ex. rel. Doe v. William E. Arnold, Jr., a criminal in Tennessee could deny liability for criminal conduct which also constituted tortious conduct for which civil damages could be awarded, forcing a civil trial regarding whether the criminal acts were tortious. (You can read the opinion here.)
In Bowen, the defendant in the civil case, Mr. Arnold, had been convicted in his criminal jury trial of sexually assaulting a minor while mentoring him in a program offered by the Boys and Girls Clubs of Middle Tennessee. The victim’s parents, on behalf of the minor, sued Mr. Arnold, the Boys and Girls Clubs of Middle Tennessee, and other entities involved in administration of the mentorship program. They challenged Mr. Arnold’s right to re-litigate his guilt in the civil suit. He opposed the motion, arguing he had been falsely accused and wrongfully convicted and that the victim was not a party to the criminal case and therefore could not rely on the conviction to establish liability.
The trial court granted the victim’s motion , holding that although the plaintiff was not a party to the criminal case, he was “in privity with the state of Tennessee.” Arnold requested an interlocutory appeal, which was denied by the Tennessee Court of Appeals, but accepted by the Supreme Court of Tennessee.
Collateral estoppel generally prevents parties from re-litigating issues already litigated and determined in other proceedings. At common law, it required mutuality: the parties to the second action were required to be identical to, or in privity with, the parties to the first action. But that requirement was always suspect because it had the effect of permitting parties to re-litigate against other opponents factual issues they had already litigated and lost:
In fact, the mutuality requirement was so much disfavored that, in the same year it was included in the Restatement (First) of Judgments, the California Supreme Court unanimously rejected it, finding “no compelling reason” for requiring a party asserting collateral estoppel to “have been a party, or in privity with a party, to the earlier litigation. Bowen, case no. M2015-00762-SC-R11-CV, p. 6 (2016). (quoting Bernhard v. Bank of Am. Nat. Trust & Sav. Assn., 122 P.2d 892, 894 (Cal. 1942).
The overwhelming majority of jurisdictions have abandoned the mutuality requirement. With the decision in Bowen, Tennessee has now joined that majority. Litigants who had a “full and fair opportunity to litigate” an issue in a previous lawsuit, whether civil or criminal, will be precluded from re-litigating the same in a subsequent lawsuit, regardless of mutuality of the parties. In reaching this decision, the Court soundly rejected Arnold’s arguments against preclusion:
Treating this issue as conclusively determined in the criminal action is not “incompatible with an applicable scheme of administering the remedies in the actions involved.” To the contrary, allowing a civil jury functioning under a much lower standard of proof to relitigate and potentially contradict a unanimous finding of a criminal jury would be “a general indictment of the whole American jury system.” Mr. Arnold’s guilt or innocence of rape and aggravated sexual battery was the central focus of the criminal trial, and his fundamental liberty interest was at stake, giving him plenty of incentive to mount a vigorous defense against the charges.
While this case involved sexual assault, the principle is just as applicable when a defendant is facing lesser charges such as reckless driving. It is more important than ever that companies anticipating potential civil liability ensure that their employees have resources available to mount a strong defense to any work-related criminal charges.