PHOENIX (Legal Newsline) - The half-sister of a child abused and killed by his relatives can sue for the victim’s lost wages, the Arizona Supreme Court ruled, deciding for the first time whether future earnings count as restitution under the state’s victim’s compensation law.
Lillian Hester was convicted in 2018 of abusing and murdering her six-year-old nephew Jack. Jack’s grandmother, Linda Hester, and Lillian’s boyfriend Jason Conlee pled guilty to child abuse and endangerment.
Jack’s half-sister, identified only as Elise, sued all three for $3.3 million in lost wages over the death of her half-brother, citing the Victims’ Bill of Rights in the Arizona Constitution. As the “next closest relative who is not a criminal defendant in this case,” she said she was entitled to make a claim on behalf of Jack’s estate.
She supported her lost wages claim with an expert’s report projecting Jack’s future earnings. The defendants opposed the claim and submitted their own expert report estimating lost wages, minus consumption, of $153,712 to $919,598. Elise said she’d accept the higher estimate.
A trial court agreed Elise could sue on behalf of Jack’s estate but rejected the lost wages claim as “consequential damages” not recoverable under the victims’ act. An appeals court upheld the ruling, saying the “causal nexus” between the crimes and future lost wages was “simply too attenuated” to be considered a recoverable economic loss.
The Arizona Supreme Court reversed, in an April 30 opinion by Chief Justice Ann Timmer.
The law allows crime victims to recover full restitution from defendants, including “losses that would not have been incurred but for the offense,” including “lost earnings.” Because restitution isn’t a penalty, it must represent actual losses, as opposed to noneconomic damages like pain and suffering.
The Arizona Supreme Court hadn’t previously decided whether future earnings are recoverable, but it cited favorably an appeals court decision allowing a victim to recover future medical expenses.
“The key considerations in awarding future economic losses as restitution, as with already-incurred losses, are whether those losses would not have occurred but for the criminal conduct and whether that conduct directly caused the anticipated losses,” the court said.
The question is more complicated with a child’s future lost wages, since courts disallow consequential damages that are indirectly caused by the defendant’s criminal conduct. An appeals court reversed the award of $2,000 to a car dealer who sold a used Jeep to a defendant who paid with a bad check, for example. After the police returned the Jeep, the dealer was forced to sell it at a lower price, but that was because Kelly Blue Book had lowered the resale value in the meantime, not the previous buyer’s criminal conduct.
In Jack’s case, his murder caused the loss of future wages just as an assault victim incurs future medical expenses because of a criminal attack, the court concluded. Since the trial court dismissed the claim without considering either expert’s estimate, the case was remanded for further deliberations.
“The victim must provide a reasonable basis for estimating the incurred loss,” the court said. “Conjecture and speculation alone cannot form that basis.”
Colleen Clase argued for Arizona Voice for Crime Victims. Parents of Murdered Children and The Arizona Crime Victim Rights Law Group filed briefs in the case, as did Arizona Attorneys for Criminal Justice.