Written by attorney W. Thomas Smith

Sexual Assault and Abuse – Can a company be liable for negligence in failing to prevent it?

There are two basic fact patterns that lead to a finding of negligence on the part of a company for failing to prevent a sexual assault. In the first, the assault is committed by an employee of the company. The injured victim can prove that the company failed to take reasonable steps to check the perpetrator's background before hiring or during the employment. An example of this might be failing to check the criminal record of a camp counsellor who had a record of a previous sexual assault or other sex-related offense. An alternative is to prove that the company failed to properly train, supervise and monitor its employees and thus failed to recognize warning signs that sexual assault was occurring or about to occur. As an example, again a sexual assault by a counsellor, but one with a clean record; however, the camp supervisor or director fails to monitor the counselor's activities and so fails to observe the warning signs of on-going assaults. The second basic fact pattern is where the sexual assault is committed by a non-employee of the company against which a claim is made. Examples of this scenario are the rape of an apartment tenant in the hallway or the teenage concert-goer. In these situations, the assault victim will have to prove that the defendant-company had a duty to provide security and was negligent in failing to provide appropriate security. Success in these cases depends on detailed developing of the facts: Did the management company allow the building's doorway to be left unlocked or blocked open by tenants? Were the security cameras working? Was the guard making the required periodic rounds? Were the concert grounds maintained so as to provide a secluded location allowing the rape of the teenager? In addition, often this type of sexual abuse case involves proof of the frequency of sex and other crimes in the area using police reports and other crime data. This proof shows that the company charged with negligence should have 'foreseen' the likelihood of a sex crime occurring and taken additional, effective measures to protect the victim from this occurring.

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