At both the national and state levels, databases of sexually-motivated criminals (particularly those who target children) are amassed and publicly distributed with the hope of reducing the chances of a predator striking again.

But what duty do individuals have to warn of the danger of a sexual attack posed by others in their household?

girl1According to a new ruling by the South Carolina Court of Appeals: Not much.

In general, a person doesn’t owe a duty to prevent or warn of danger posed by a third party except in limited circumstances. One of those involves the establishment of a special relationship between defendant and victim and another involves an ability to control the third party.

However, as our Fort Myers child injury lawyers understand, the appellate court in South Carolina did not believe either was the case for a neighbor whose husband was previously convicted of molesting their daughter, and two girls who years later lived next door and frequently visited with the couple’s granddaughter.

In Roe v. Bibby, the neighbor girls’ parents, after learning the couple’s granddaughter had been abused, learned their own daughters had been sexually assaulted too. They filed civil actions against both the husband and wife. Against husband, they alleged assault, battery and intentional infliction of emotional distress. Against wife,  they alleged negligence and wrongful infliction of emotional distress on a bystander.

A default judgment was entered against husband. However, the claim against wife was vigorously defended.

Plaintiffs alleged wife had a duty of care to their girls to warn the parents of the man’s violent past and sexual propensities toward children. Citing the 2007 case of Doe v. Marion, plaintiff asserted defendants have a common law duty to warn potential victims under the special relationship exception when defendant has ability to monitor, supervise or control an individual’s conduct and when individual has made a specific threat of harm directed at a specific individual.

However, trial court did not find defendant had the ability to monitor, supervise or control her husband, particularly given defendant was mostly at work when alleged abuse occurred. Additionally, the court found she had no knowledge of a specific threat to minor children. A divided appellate court affirmed on this issue.

So too did judges affirm the trial court in finding no liability through premises liability law. Plaintiffs were required to establish duty of care owed by defendant to plaintiff, breach of that duty by negligent act or omission and damage proximately resulting from that breach. Plaintiffs contend they were licensees on defendant property, and defendant had duty to warn of any concealed dangerous condition. Specifically, defendant knew of her husband’s past actions, knew he was watching child pornography again and knew there was a likelihood of danger to the children’s safety.

However, both the trial and (divided) appellate court disagreed. The court could find no prior cases recognizing a duty to warn a licensee about prior criminal acts committed by a third party living on the property. Further, the court noted as an untrained lay person, defendant had no understanding of the high recidivism rate of child sexual offenders, and believed he was “cured” after the counseling he received nearly two decades earlier for molesting his own daughter.

Disappointing as this ruling was, it’s noteworthy that victims of child sexual abuse do in some instances have other avenues of recompense. There is the possibility to seek damages from abuser directly (as as the case here).

Other cases have been brought against social services agencies that failed to protect vulnerable children living in abusive homes or subjected to abusive individuals.

Employers may be potential defendants as well if the abuse occurred in some capacity within defendant’s work, particularly if defendant was placed in a position of trust over victim (i.e., teacher, coach, priest, juvenile officer, health care worker, etc.).

An experienced plaintiff attorney has the ability to review a number of relevant legal theories that could potentially further your claim.

If you have been a victim of abuse, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Roe v. Bibby, Oct. 1, 2014, South Carolina Court of Appeals

More Blog Entries:

Vicarious Liability of Florida Hospitals for Medical Negligence, Oct. 20, 2014, Fort Myers Injury Lawyer Blog