Who Is Responsible for a Sexual Assault on Property

Who can actually be held responsible, and who carries the insurance?

The assailant is rarely the recovery

A civil claim against the person who committed an assault is real. It is also, in most cases, a judgment against someone with no assets and no insurance that responds. Liability policies exclude intentional acts. Individuals rarely carry anything that would cover this.

That is not a reason to skip the claim. It is a reason not to stop there.

The defendants who carry insurance

Where the assault happened on someone’s property or in the course of someone’s business, there is usually a second set of defendants, and they are insured.

The property owner. The entity that owns the apartment complex, the hotel, the parking garage, the shopping center.

The management company. Frequently a different company from the owner, with its own policy, responsible day to day for security decisions, maintenance and staffing.

The security contractor. Where a property hired a guard service or a courtesy officer, that company had its own duties and its own coverage.

The franchisor. With hotels especially, the brand on the sign, the company that owns the building and the company that operates it are frequently three separate entities. Each will point at the other two.

The employer. Where the assailant was an employee, claims for negligent hiring, supervision and retention run against the employer directly, and they are not claims that the employer committed the assault. They are claims about what the employer knew and did.

The reason this matters is simple and unsentimental. These defendants carry commercial general liability coverage, often with excess layers above it. A claim that a business was negligent in how it protected people is the kind of claim that coverage is written for.

What has to be proven

Texas does not make a property owner an insurer of everyone’s safety. Two things must be shown, and they are separate.

Foreseeability. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998), directs courts to weigh whether criminal conduct previously occurred on or near the property, how recently, how often, how similar it was, and what publicity it received such that the owner knew or should have known.

There is a second route. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010), holds that those factors “are not the only reasons that a criminal act might be deemed foreseeable.” Where the business had actual knowledge of a specific, building risk, that alone can establish it. A complex that had prior complaints about the same man is in that territory regardless of what the crime statistics say.

Unreasonableness. UDR Texas Properties, L.P. v. Petrie, 517 S.W.3d 98 (Tex. 2017), holds that foreseeability is not enough: “Foreseeability is the beginning, not the end, of the analysis in determining the extent of the duty to protect against criminal acts of third parties.” The plaintiff must put on evidence weighing the risk against the burden of preventing it, and the plaintiff in UDR lost on exactly that.

In practice that means a case has to identify a specific, achievable measure that was missing, and prove what it would have cost and what it would have stopped. A working gate. A camera that recorded. A light. A lock that had been reported. A guard during the hours the incidents happen.

Where trafficking is involved, the statute reaches further

If the facts involve trafficking, Chapter 98 of the Civil Practice and Remedies Code is stronger than ordinary negligence law.

Section 98.002(a) makes liable not only the person who traffics but a defendant who “intentionally or knowingly benefits from participating in a venture that traffics” another person, for damages arising from the trafficking by the defendant or the venture. That is written as an independent basis of primary liability, not a secondary theory, and it is how a hotel that knowingly profited from an operation running out of its rooms comes within the statute.

Section 98.003 makes actual damages including mental anguish, court costs and reasonable attorney’s fees mandatory for a prevailing claimant, with exemplary damages additionally available. Section 98.005 makes such a defendant jointly liable for the entire amount. Section 98.002(b) provides that acquittal, non-prosecution or conviction of a different offense is not a defense.

Primary sources

• Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998)
• Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010)
• UDR Texas Properties, L.P. v. Petrie, 517 S.W.3d 98 (Tex. 2017)
• Tex. Civ. Prac. & Rem. Code ch. 98 (trafficking)

Every statute and case linked above was read at its primary source. Texas statutes change every legislative session and case law is constantly changing.

This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney-client relationship.