Rape and sexual assault are among the most devastating violent crimes. Unfortunately, criminal convictions may be hard to win, as prosecutors must meet the strict “beyond a reasonable doubt” standard, and many defendants muddy the waters by arguing consent.
This is why victims of rape and sexual abuse are increasingly seeking justice, vindication and improved safety through civil lawsuits.
At Associates and Bruce L. Scheiner, Attorneys for the Injured, we know rape victims may recover damages and concessions in civil court, even if the accused was acquitted or never prosecuted criminally. Civil sexual assault cases require the lesser “preponderance of the evidence” proof standard.
Sexual assault is a major problem in the U.S., where the National Crime Victimization Survey estimates approximately 250,000 people are raped or sexually assaulted every year. What’s more, only about 55 percent of those cases are reported to police.
Put another way: A sexual assault occurs every two minutes in this country.
In addition to civil action filed directly against the perpetrator, there are often valid third-party claims that may be effectively brought on the basis of negligence. Generally, these involve the failure to exercise reasonable care in maintaining property, inadequate security and negligent hiring, retention or supervision of employees.
Potential third-party defendants in sexual assault litigation may include:
- Government entities
- Nursing homes
- Innkeepers (hotels, casinos, etc.)
- Bars and nightclubs
- Religious institutions
- Apartment and condo complexes
- Cruise ships
- Treatment centers
While lawsuits directly against assailants can be beneficial to victims, third-party litigation remains common in sexual assault cases.Third-Party Litigation
In any negligence case, key questions are going to be whether the defendant owed a duty of care to the plaintiff, and whether that duty was breached.
Generally, courts are reticent to impose liability on a third party for one person’s wrongful actions. However, if that third party owed a duty of care to protect the plaintiff or others similarly situated and failed to do so by exercising reasonable caution, that entity may be liable.
For example, nursing home administrators may not have known an aide was sexually abusing a patient. But if the facility failed in its duty to adequately supervise patients and staffers, providing opportunity for the abuse to occur or continue, that could be grounds for litigation.
Some organizations and entities specifically carry “Sexual Misconduct” insurance coverage, often as a stand-alone package. This type of coverage is often secured by organizations that routinely oversee contact between minors and adults or vulnerable adults and caregivers. Some of these policies do limit the scope of coverage and exclude coverage of punitive damages.
Usually, insurance coverage is not recoverable in sexual assault cases directly from the assailant, as most policies exclude intended harm. However, many third-party policies will offer coverage in these instances for claims of general negligence.
Employers of defendants (nursing homes, prisons, treatment centers etc.) will most likely find themselves facing litigation based on theories of negligence that pertain to the hiring, retention and supervision of a dangerous person placed in a position of trust or authority.
Some cases may involve employees or individuals who had a known history of abuse but were nonetheless placed in a position of authority or trust, while others may center on a third party’s failure to utilize adequate screening and/or background checks. Still others may involve an organization’s failure to respond once abuse became known or was knowable.
Most other cases of third-party sexual assault liability focus on negligent or inadequate security.Negligent Security and Sexual Assault in SWFL
Negligent security is a form of premises liability. Essentially, it holds the owner or manager of a property responsible for third-party crimes that likely could have been prevented had the defendant acted with reasonable care in ensuring the property was safe.
In these instances, a finding of negligent security often rests on the issues of “duty” and “foreseeability.”
The nature and extent of duty will depend on the nature of the premises. Foreseeability of the criminal activity at or near the premises will be taken into account, as well as the relationship of those involved. A property owner or manager may breach the duty of reasonable care by failing to make timely, diligent inspections for potentially dangerous conditions on site.
Courts will likely analyze whether security measures would have prevented a similar crime.
For example, if the owner of a gated apartment complex fails to hire adequate security at the gate or working locks to common areas, these oversights could be exploited by potential rapists to access a target.
Other potential issues that may contribute to a finding of negligent security:
- Insufficient lighting
- Lack of working video surveillance
- Failure to maintain gates, fences or other barriers
- Improperly trained security guards
In determining whether a landlord or property owner knew of the risks, our legal team may analyze:
- Crime grids, police reports and security surveys
- Witness information (including employee statements)
- Tenant repair requests
- Prior insurance claims and incident reports
- Community association minutes
- Notices to tenants and/or the public regarding prior crimes
- Personnel files
- Documentation regarding specific security measures, such as premises inspections, guard monitoring, trespass monitoring, etc.
All of this may be relevant to determining duty and foreseeability, and thus liability, in a third-party sexual assault claim.
If you or a loved one has been a victim of child sexual abuse or sexual assault in Southwest Florida, contact Associates and Bruce L. Scheiner, Attorneys for the Injured, for a free and confidential consultation to discuss your rights. There are no fees or costs unless we win. Offices in Fort Myers, Cape Coral, Naples and Port Charlotte.
Call 800-646-1210 for a Free Consultation