Rape and sexual assault in Georgia are alarmingly pervasive, their impact profound. Victims’ advocacy and assistance non-profit RAINN reports 1 in 6 women and 1 in 33 men in the U.S. have been sexually assaulted – a new victim every 98 seconds. Data from the Georgia Bureau of Investigations shows in a single recent year, law enforcement agencies statewide documented more than 2,600 reports of rape and sexual assault. Atlanta attorneys for rape and sexual assault victims know these are low estimates. Even when offenses are reported, taken seriously, and investigated, conviction is rare – about 5 out of every 1,000 arrests, according to RAINN.
Criminal courts are not a victim’s only legal recourse. Businesses, managers and owners of property where assaults occur can also be held accountable if evidence shows there was an unreasonable risk of danger to the victim about which defendant was aware (or should have been) and failed to address.
Defendants in these Georgia premises liability or negligent security lawsuits can include those who own or are responsible for managing/ securing:
- Apartment complexes/condos
- Hotels and resorts
- Parking lots
- Malls/shopping complexes
- Schools/daycares
- Barriers, both natural and constructed
- Universities/colleges
- Bars/nightclubs
- Amusement parks
Primarily, the value in pursuing claims for negligent security after rape is financial compensation for actual physical losses and intangible emotional trauma – medical bills, ongoing treatment, therapy expenses, damage to personal relationships, etc. One can recover lost wages if the trauma spurs severe bouts of anxiety, depression and post-traumatic stress, rendering one unable to return to work for an extended period.
The other value in claims for negligent security sexual assault is that it holds property owners and others accountable for security lapses and it incentivizes safety for these companies, ultimately making such assaults less likely to reoccur.
Civil Litigation Compensation for Rape Victims in Georgia
Holding a third party responsible for harm resulting from a criminal act they didn’t commit may seem an odd concept, but it’s not a new one.
Property owners aren’t expected to guarantee anyone’s safety. But as the Georgia Court of Appeals ruled in the 1975 case of Smith v. General Apartment Co, if a property owner knows of a crime problem or other condition that could foreseeably invite it, they have a duty to install more security. Further, the intervening cause of third-party violence doesn’t void the property owner’s negligence in creating the opportunity.
O.C.G.A. 51-3-1 imposes a duty on property owners/occupiers to do their best to limit lawful guests’ exposure to dangerous conditions. In situations where property owners can’t mitigate a threat, it becomes their duty to warn potential victims. If a person is raped in part because an attacker seized an opportunity resulting from a property owner’s failure to implement a reasonable amount of security, victims can seek compensation for this lapse.
But just how much security is adequate? That is subject to interpretation and often the subject of intense disagreement in these cases, but commonly-cited crime prevention measures include:
- Additional lighting
- Functional locks on living/ sleeping quarters
- Secure windows, especially on ground-level units
- Monitored security cameras
- Paid security patrols (especially at night or peak business hours)
Georgia courts weighing whether security was negligent consider several factors, including:
- Type of property (A tiered garage would inherently require different safety features than a swim center).
- Plaintiff’s relationship with the property owner (Duty owed to a guest at a hotel or a patron at a nightclub may differ from a tenant in an apartment complex, depending on the situation.)
- Property owner’s express or implied promise of security (by way of advertisements, lease agreement, verbal assurance, etc.).
- History of violent crimes either at that location or nearby. (Criteria for analysis of prior crimes in negligent security assault cases was outlined in the 1997 Georgia Supreme Court decision in Sturbridge v. Walker. The court held in a negligent security sexual assault case that for purposes of foreseeability, it wasn’t necessary for plaintiff to prove a history of the exact same crimes. Numerous unrelated break-ins at an apartment complex in months prior to a home invasion/rape were collectively enough to put the landlord on notice the units required better security. Justices rejected defendant’s argument that the rape was not foreseeable because the past crimes weren’t the same because this “suggests landlords could lawfully safeguard its tenants from burglars who commit only thefts differently from those burglars who commit crimes against the person.”
In terms of causation, courts may also consider the attacker’s relationship to the property owner. For example, a business could install extensive security measures, but they may be ineffective against certain attacks if the offender is a tenant or otherwise lawfully on site.
Georgia Civil Liability Claims for Negligent Security Rape Distinct from Criminal Case
As our experienced Atlanta injury lawyers can explain, negligent security claims after sexual assault proceed entirely apart from any criminal prosecution for the same act. Some rape survivors have even prevailed in these premises liability case when attackers were never identified, let alone arrested or convicted.
When an attacker in a sexual assault is known, victims may have two avenues to pursue direct compensation. The first is court-ordered restitution, outlined in O.C.G.A. 17-14-1. This is directed by the criminal court following conviction, and usually covers medical expenses and possibly court fines and fees. The second is with a civil claim for intentional tort, which can include battery, intentional infliction of emotional distress, economic losses, and even punitive damages. Civil claims often cover much of what restitution (and the Georgia Victims’ Compensation Fund, a separate means of state-funded recovery) do not. A person can collect from all three, though there are checks and balances to avoid double recovery.
Direct claims for intentional tort aren’t as common as premises liability lawsuits against property owners because with limited exception, insurers exclude coverage for criminal acts. That means unless the accused is independently wealthy, direct torts against offenders often aren’t worth the time, expense and emotional upheaval, but should nonetheless be explored.
Conversely, third-party claims against property owners usually are covered by general and commercial liability insurance policies because they involve torts for negligence rather than intentional crimes.
If you are a victim of sexual assault in Georgia, contact our experienced Atlanta attorneys for rape and sexual assault victims to discuss your legal options.
The foregoing answers are not legal advice and are merely a general overview. You are advised to consult a lawyer to address your specific situation regarding your situation. For more information or to inquire about a free consultation, contact Stephen D. Apolinsky, an experienced Atlanta sexual assault victim attorney, at Apolinsky & Associates at (404) 377-9191 or email him at steve@aa-legal.com.
