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Crimes of Sexual Assault or Rape: Texas Injury Claims Based Upon Premises Liability Law

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According to the latest crime statistics compiled by the Texas Department of Public Safety (DPS), sexual assaults are on the rise in our state, with an almost 10% annual increase in reported sexual assaults.  The DPS data confirms that targets of sexual assault in Texas are more likely to be female than male and that  almost half of Texas’ reported sexual assaults involve someone who is a family member or relation (45.6%).

The National Center on Domestic and Sexual Violence (NCDSV) reports that:

  • 1 in 5 Texas women and 1 in 20 Texas men has been the victims of sexual assault.
  • Only 18% of victims report their assault to law enforcement.
  • Almost one quarter of all sexual assaults involve some other kind of violence.
  • Most female victims are assaulted by a man they know. Usually this man is a relative other than the victim’s spouse.

Is Rape Different Than Sexual Assault?  No.

Most people recognize and use the word “rape” in these cases and not the phrase “sexual assault.”  Watch an episode of “Law & Order: Special Victims Unit,” for example, and the word “rape” will be used.  However, in Texas, “rape” and “sexual assault” mean the same thing.

Legally, the word “rape” does not define a criminal act in the State of Texas.  This is because the Texas Legislature decided not to use that word.  Instead, the Texas Legislature has defined two specific crimes in the Texas Penal Code that correspond to the general understanding of the act of rape.  These are the crimes of “Sexual Assault” and “Aggravated Sexual Assault.”

Texas Penal Code: Sexual Assault

In Texas, the definition of “sexual assault” is found in Article 22.011 of the Texas Penal Code, which states that a person commits the offense of “sexual assault” if:

(1)  the person intentionally or knowingly:

(A)  causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(B)  causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

(C)  causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or

(2)  regardless of whether the person knows the age of the child at the time of the offense, the person intentionally or knowingly:

(A)  causes the penetration of the anus or sexual organ of a child by any means;

(B)  causes the penetration of the mouth of a child by the sexual organ of the actor;

(C)  causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

(D)  causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or

(E)  causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.

Texas Penal Code: Aggravated Sexual Assault

The crime becomes an “aggravated sexual assault” and a separate criminal act under Texas Penal Code Article 22.021 if the person:

(A)  intentionally or knowingly:

(i)  causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(ii)  causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

(iii)  causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or

(B)  regardless of whether the person knows the age of the child at the time of the offense, intentionally or knowingly:

(i)  causes the penetration of the anus or sexual organ of a child by any means;

(ii)  causes the penetration of the mouth of a child by the sexual organ of the actor;

(iii)  causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

(iv)  causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or

(v)  causes the mouth of a child to contact the anus or sexual organ of another person, including the actor; and

(2)  if:

(A)  the person:

(i)  causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the same criminal episode;

(ii)  by acts or words places the victim in fear that any person will become the victim of an offense under Section 20A.02(a)(3), (4), (7), or (8) or that death, serious bodily injury, or kidnapping will be imminently inflicted on any person;

(iii)  by acts or words occurring in the presence of the victim threatens to cause any person to become the victim of an offense under Section 20A.02(a)(3), (4), (7), or (8) or to cause the death, serious bodily injury, or kidnapping of any person;

(iv)  uses or exhibits a deadly weapon in the course of the same criminal episode;

(v)  acts in concert with another who engages in conduct described by Subdivision (1) directed toward the same victim and occurring during the course of the same criminal episode; or

(vi)  with the intent of facilitating the commission of the offense, administers or provides to the victim of the offense any substance capable of impairing the victim’s ability to appraise the nature of the act or to resist the act;

(B)  the victim is younger than 14 years of age, regardless of whether the person knows the age of the victim at the time of the offense; or

(C)  the victim is an elderly individual or a disabled individual.

Texas Civil Personal Injury Claims Available for Some Sexual Assault Victims

When a sexual assault or an aggravated sexual assault happens at a business location or commercial premises, another example of the overlap between Texas criminal law and Texas civil injury law occurs.

In these cases, while there may be arrests, charges, and prosecutions by law enforcement in the criminal justice system, there are also legal causes of action available under Texas personal injury precedent allowing for civil monetary damages to be awarded to the sexual assault victim.

Texas’  “premises liability law” may establish legal financial liability for the business owner or operator of the place where the rape (sexual assault) happened.  Damages may be owed by that business to the person who was sexually assaulted.

Liability of Both Criminal Perpetrator and Business Owner

Of course, the person who has been sexually assaulted can sue the person who committed the criminal act.  This case can be based upon intentional civil torts like assault and the intentional infliction of emotional distress.

However, Texas’ civil law also provides for these plaintiffs to sue the business owner or operator of the place (premise) where the assault took place.   Texas is not unique here:  other state courts have also found that the right thing to do in these situations is to establish liability for business owners who fail to provide reasonable safety precautions for customers, clients, residents, etc. and thereby contribute to the criminal act taking place.

In other words, in Texas a business owner can be financially accountable to someone who was raped (sexually assaulted) on their property.

The Legal Duty of a Texas Business to Protect Against Rape on Its Property

In 1998, the Texas Supreme Court published its opinion in the case of Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998).  Almost a decade later, it rendered its decision in Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010).

Together, these two precedents from the highest civil court in the state jurisdiction explain when a business can be held financially responsible for criminal conduct on its property under a civil premises liability claim.  Under Timberwalk, the duty of the premises owner based upon past events is explained and under Del Lago, the duty of the business insofar as present day, or contemporary events, is delineated.

Foreseeability – Past Criminal Acts Can Give Rise to Duty of Care

In Timberwalk, a man later convicted of eight sexual assaults in the Houston area entered the apartment of Tammy Cain before dawn on a Sunday morning and raped her.  She filed a civil injury claim against the owners of her apartment complex and their management company, alleging that they were negligent and caused her harm by failing to provide her with adequate security within her apartment.

Tammy Cain specifically alleged that the apartment complex owner and its management company:

  • failed to put “charley” bars or pin locks for sliding glass doors;
  • failed to have security alarm systems in the apartments;
  • failed to have restricted access gates to the complex;
  • did not provide proper lighting;
  • did not have routine surveillance; and
  • did not have security guards patrolling the property.

Tammy Cain asserted that the apartment owners (as well as their management company) failing to provide adequate security measures created an unreasonable risk of harm that they knew or should have known about, and yet they failed to correct. This is a premises liability claim under Texas law.

However, Ms. Cain failed to provide the necessary evidence that the sexual assault was foreseeable by the apartment owners and its management company to establish liability.  The Texas Supreme Court explained that there are five factors to be considered together before liability can be found with the business owner.

The criminal conduct has to be foreseeable based upon past events by the business owner and this is determined based upon five considerations:

  1. proximity
  2. recency
  3. frequency
  4. similarity
  5. publicity.

Weighing the evidence using all five of these factors (now known as the “Timberwalk Factors”), the Court pointed out that (emphasis added):

“The evidence in the present case is that no violent personal crime occurred at the Timberwalk Apartments for ten years preceding Cain’s sexual assault. The only crimes that had occurred in the complex were the tire-slashing by Cain’s roommate’s ex-boyfriend, and a car burglary and car theft at an earlier, unspecified time. In the year preceding Cain’s sexual assault, only one sexual assault had occurred within a one-mile radius of the Timberwalk Apartments. That same year, six assault-type crimes occurred in neighboring apartment complexes. There is no evidence that any of these crimes was ever reported in the media, or that Timberwalk knew or had any way of knowing about them

Applying the factors we have set out to the facts before us, we conclude that the risk that a tenant would be sexually assaulted was in no way foreseeable to Timberwalk. Therefore, as a matter of law, Timberwalk owed Cain no duty to provide additional security beyond that required by statute and by the lease.”

Foreseeability – Present Circumstances Giving Rise to Duty of Care

Del Lago explains a different basis for finding a business liable to a victim of assault based not upon past history, but upon the immediate events that  led up to the crime itself.  In this case, the business was found to have a legal responsibility to the person who was assaulted (not sexually) because it was aware of an unreasonable risk of harm to the victim the night that he was beaten.

In this case, Bradley Smith attended a fraternity party at the Grandstand Bar in the Del Lago Resort.  The fraternity members and members of a wedding party eventually clashed in what the Court described as an “all-out brawl, fueled by the bar staff continuing to serve alcohol, giving no notice to resort security, and herding the parties together while attempting to close the bar.”

In this case, the business owner and operator of the Del Lago Resort was found liable for the injuries sustained by Bradley Smith in the criminal acts on its property because it had “…sufficient knowledge of the immediate circumstances . . . to foresee that party’s misconduct.

Foreseeable for Crime to Happen Equals Premises Liability for the Business

If the victim of a sexual assault has been raped on commercial property, then there may be a civil injury claim for damages available to him or her under Texas’ premises liability law.

This business can be made to pay for damages that include medical expenses, lost wages, psychological therapy, lost future earnings, pain and suffering, and more to the rape victim if it can be shown the business knew or should have known there was a risk of sexual assault or criminal activity and then failed to take reasonable precautions to protect against it.

Examples of business owners or operators who may be found liable for sexual assault injury damages include:

  • Nursing Homes
  • Office Buildings
  • Grocery Stores
  • Shopping Malls
  • Shopping Outlets
  • Restaurants
  • Bars
  • Colleges and Universities
  • Apartment Complex Owners and Managers
  • Condominium Owners and Managers.

Business Premises Insurance Coverage

In instances where a sexual assault results in a civil injury case based upon premises liability law, the business’ insurance carrier (and insurance defense counsel) may become involved because commercial insurance coverage covers the incident.  While the assault itself is an intentional act, and intentional acts are not covered by insurance, the failure of the business to protect against crime on its premises will be based upon issues of negligence and a breach of a legal duty of care owed by the business to the person who was sexually assaulted.

The business owner or operator may be a third party to the crime, but nevertheless financially liable to the person who was harmed in the criminal act.  The business’ insurance policy may cover these claims.

 Sexual Assault Premises Liability Claims in Texas

When sexual assault occurs at a place of business, then the owner and operator of that business may be liable to the person who was sexually assaulted (raped) for significant injury damages.

The key here will be the foreseeability of the criminal assault by the business owner and operator.  The rape victim will have to prove with admissible evidence that (1) past events revealed a risk of harm on the premises that the owners ignored or that (2) the circumstances at the time of the assault were such that the business owner and operator reasonably should have known of a crime risk and taken immediate steps to protect against it.

Also see: Sexual Harassment: Sexual Assault Personal Injury Claims In Texas.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “Sex Crimes In Texas: Criminal Defense Overview.”

 

 

 


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