CIVIL TORT CLAIMS FOR PHYSICAL ASSAULT, SEXUAL ASSAULT & INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
There is a movement across the United States to seek redress for assaults and sexual assaults in civil courts. Although we are all too familiar with the criminal justice system as a system of redress for victims of sexual assaults, many victims remain unaware that they may have a viable cause of action for monetary (money) damages against sexual predators in the civil justice court system. These civil actions are becoming more common in courts throughout the U.S. I was the first attorney in Travis County to file a civil lawsuit against a rapist and obtained a judgment of 1.5 million dollars around 1987. My experience and training as a police officer, police chief, and prosecutor helped shaped my destiny as an advocate for victim rights in the civil justice system.
Why file a civil lawsuit against the perpetrator of a sexual assault or the owner of the premises where a sexual assault took place? There are several answers to this question. I think, foremost, that by initiating civil litigation against a perpetrator, a crime victim can help regain her or his feelings or balance and control over their environment. Sexual and physical assaults can cause emotional scars that leave a victim feeling as if they have lost control of their lives. If a crime victim can get out of the “role” of “victim” they may be able to regain a feeling of independence and control over their own life again. This redemption or catharsis may be the most important of all reasons for pursuing civil litigation against a perpetrator.
Other reasons for pursuing civil litigation against predators include, but are not limited to:
(1) Exposing individuals who commit these crimes to the public through media coverage and press releases;
(2) Seeking money damages to assist the victim in obtaining medical and psychological counseling;
(3) Obtaining information about the predator or dangerous premises that may help law enforcement or criminal prosecutors prevent future attacks.
Before one considers going down the path of civil litigation, a conference with an attorney who is well-versed in crime victim law and inadequate security litigation should occur. Beware of attorneys who advertise in the yellow pages or television who claim to be “experts” in personal injury and intentional injury (tort) law. Most attorneys who advertise on TV or in telephone directories have little or no network of former clients for referrals and practice a high-volume “mill” law practice.
Crime victim cases and inadequate security cases are much different than automobile collision personal injury cases. Most lawyers are wholly unequipped to properly investigate these cases and do not understand how to prosecute these civil cases. They do not understand the nature of these cases, the elements of proving these cases, or how to utilize litigation “tactics” to win these cases. There are only a handful of lawyers in the United States who understand these cases. My background as a security supervisor of a 28 story co-ed college dormitory shopping mall complex (Dobie Center in Austin), 4 years street experience as a police officer, experience as a prosecutor, coupled with 25 years litigation experience and 18 years judicial experience give me a unique advantage over other attorneys in this area of law. I am also a licensed EMT-I and have served as a Firefighter/EMS First Responder for 5 years with Austin EMS. I understand the emotional and physical trauma that criminal predators inflict on their victims.
What kind of cases might a crime victim be able to pursue?
- DATE RAPE
- SEXUAL ASSAULT BY KNOWN PERPETRATOR
- SEXUAL EXPLOITATION AND SEXUAL ABUSE BY DOCTOR, THERAPIST, OR CLERGY
- SEXUAL ASSAULT BY UNKNOWN PERPETRATOR ON PRIVATE PROPERTY (PARKING GARAGE, SHOPPING MALL, NIGHTCLUB, APARTMENT COMPLEX)
- SEXUAL HARASSMENT WHICH INCLUDES UNWANTED TOUCHING
An experienced attorney should be able to discuss statutes of limitations which bar civil lawsuits from being pursued if a plaintiff delays too long after the cause of action accrues. For example, a victim of a simple assault by touching has two years to bring her lawsuit against the perpetrator. More serious assaults even ones that cause death are limited to the two-year limitation period (See Texas Civil Practice & Remedies Code, Sec. 16.003). The same limitation applies to a civil cause of action for “Intention Infliction of Emotional Distress” against a perpetrator. I use Intentional Infliction of Emotional Distress claims when I am dealing with non-violent assaults like the office supervisor who is groping on his subordinate female employees and making lewd statements to them. I sued an Austin doctor using simple assault and intentional infliction of emotional distress for a young UT student who was being groped and harassed by this doctor, who employed her. The jury came back with a verdict of $15,000 actual mental anguish damages and a punitive damages award of $30,000 against the doctor.
For Sexual Assaults and Aggravated Sexual Assaults the limitation period is extended to five (5) years (See Texas Civil Practice & Remedies Code, Sec. 16.0045). These include sexual assaults of children and elderly, and sexual assaults where a deadly weapon is utilized or threatened. It is important to note that in all cases involving children that the limitation periods do not begin running until the child turns 18 years of age and becomes a legal adult.
There are specific statutes that address Sexual Exploitation of a Patient by a Health Care Provider. Chapter 81 of the Texas Civil Practice & Remedies Code (TCPRC) addresses these crimes and provides some special damages, such as recovery of all attorneys’ fees for these victims, but it is important to note that the limitation period for these offenses is only three (3) years! These cases include sexual assault and consensual sexual relations between therapist/doctor and patient and may include exploitation of former patients. TCPRC, Chapter 81 defines Mental Health Service “Providers” as including: Licensed Social Workers, Chemical Dependency Counselors, Licensed Professional Counselors, Licensed Marriage and Family Therapists, Clergy, Physicians, and Psychologists. These Providers are Liable to Patients and Former patients for damages for sexual exploitation if the patient or former patient suffers a physical, mental, or emotional injury caused by, resulting from, or arising out of:(a) Sexual Contact Between patient and Provider; (b) Sexual Exploitation of patient by Provider; or (c) Therapeutic Deception of patient by Provider. TCPRC, Section 81.005(a) states that: It is NOT a defense that the sexual exploitation of the patient or former patient occurred: (1) with the consent of the patient; (2) outside the therapy or treatment sessions; or (3) off the premises regularly used by the mental health services provider for therapy or treatment.
A civil judgment against a sexual or physical predator who intentionally (willfully and maliciously) assaults another cannot be discharged by a bankruptcy court. Title 11 of United States Code, Section 523(a)(6) states that a discharge normally allowed under the federal bankruptcy code (for civil judgments) does not discharge an individual debtor from any debt for a willful and malicious injury caused by the debtor.
Unfortunately, the most important factor for an attorney when deciding whether to accept a crime victim case may hinge on whether the perpetrator has any significant assets. Without assets to seize, there is little point to justify the expense and time to pursue civil litigation against the perpetrator. When meeting with potential clients I discuss this matter fully with the client. Every case is different. There is never a charge to discuss a case at my law firm. All cases that are accepted are solely on a percentage fee of the total amount we are able to recover for our clients plus expenses. However, if we are unable to obtain a positive benefit for our clients, the client does not owe us a penny, not even our costs. We have a female Registered Nurse for our women clients who are more comfortable discussing their case with another woman.
Yours very truly,
Attorney Kevin R. Madison
This is a huge victory for women who are assaulted or sexually assaulted by an employer! Under the previous law (Waffle House case) women who were victims of sexual assaults or physical assaults at work were forced to pursue their claims through EEOC administrative channels and had to get permission from the Texas Workforce Commission or EEOC to sue their employers (“Right To Sue” letter). Not anymore. This is an amazing victory for men and women in the workplace who are victims of sexual assaults by their supervisors.
The background to his win in B.C. v. Steak N Shake is as follows, according to the high court’s decision:
B.C., formerly an associate at the Frisco, Texas, Steak ‘n Shake restaurant, alleged she was sexually assaulted by her supervisor on company property in 2011.
B.C. alleged her supervisor pushed her against a sink, grabbed her by the back of the head and pulled her toward him and tried to kiss her. She repeatedly told him to “no” and tried to push him away but was unable to escape. During a struggle, the supervisor unbuckled his pants, exposing his genitals to B.C. and later lost his balance allowing her to escape.
Later that same day, B.C. and her mother reported the incident to Steak’n Shake and the police. After completing an internal investigation, Steak ‘n Shake was unable to confirm B.C.’s allegations and as a result, B.C.’s supervisor was not terminated, nor was he transferred to another location. The company offered for B.C. to return to work at any other Steak N Shake location, but she terminated her employment instead.
B.C. later sued Steak’n Shake and her supervisor asserting assault, sexual assault, battery and negligence among other claims. Steak’n Shake moved to dismiss B.C.’s claims by arguing that the Texas Commission on Human Rights Act (TCHRA), which governs sexual harassment claims controlled B.C.’s common law assault claims. Under that law’s statutory framework, a plaintiff must first receive permission from the state before filing an employment discrimination lawsuit.
The TEXAS COMMISSION ON HUMAN RIGHTS was established by the state legislature when the Texas Commission on Human Rights Act passed on June 26, 1983, authorizing the agency to enforce the law and handle complaints filed under the commission or under United States Equal Employment Opportunity Commission (EEOC) when an employee alleges sexual discrimination by an employer.
The trial court granted Steak ‘n Shake’s motion to dismiss, but did not explain its ruling. B.C. nonsuited her claims against the supervisor and only appealed the trial court’s ruling on her assault claim against Steak ‘n Shake.
Dallas’ Fifth Court of Appeals later upheld the trial court’s ruling on the grounds that the TCHRA preempted B.C.’s assault claim. The Fifth Court held that under a 2010 Texas Supreme Court decision in Waffle House v. Williams that the TCHRA is the exclusive remedy for “workplace sexual harassment” and that to let her pursue the assault claim would circumvent the anti-harassment regime created by the state law.
B.C. appealed the ruling to the Supreme Court arguing that the Fifth Court misapplied the Waffle House ruling to her case. But Steak N Shake argued that high court should apply their holding from Waffle House to B.C.’s assault claim because it could give rise to sexual harassment claim which is subject to the TCHRA’s authority.
In a unanimous Feb. 24 decision, the Supreme Court held that B.C.’s claims were not preempted by the TCHRA and to rule otherwise would “muddle and obscure” the purpose of TCHRA which is designed to protect Texans who suffer from workplace harassment.
There were significant differences between the Waffle House case, which involved repeated sexual harassment claims, and B.C.’s case which involved “a single violent assault,” wrote Justice Paul Green in a decision that reverses and remands the case back to the Fifth Court for rulings on other issues.
“Moreover, were we to apply Waffle House here, we would effectively rule that any action by an employer, no matter how egregious or severe, is subject to the TCHRA’s administrative scheme so long as the conduct can be characterized as sexual harassment,” Green wrote. “Neither the TCHRA’s text nor its purpose, nor our prior holdings interpreting the statute, requires such an extreme result.”
The U.S. Court of Appeals for the Fifth Circuit has reprimanded U.S. District Judge Walter Smith of Waco for making “inappropriate, unwanted physical and non-physical sexual advances” toward a court employee in 1998 and stopped his new case assignments for one year as punishment.
The Dec. 4 order of reprimand from the Fifth Circuit’s Judicial Council, concludes that Judge Smith “does not understand the gravity of such inappropriate behavior and the serious effect that it has on the operations of the courts.” The order also concludes that Smith “allowed false factual allegations to be made in response to the complaint” that was filed against him September 2014.
However, the disciplinary body ultimately concluded that Smith’s actions do not warrant a recommendation for impeachment. Instead the judicial council imposed the most severe sanction otherwise available to him by suspending his new case assignments, according to the order. “It is imperative that Judge Smith not allow such events to recur and he is so directed,” wrote Carl Stewart, chief judge of the Fifth Circuit, in the order. The order requires Smith to complete sensitivity training to the satisfaction of the Judicial Council before he can resume new case assignments. Smith did not immediately return a call for comment. Neither did Stewart.
Austin Lawyer Arrested in Murder-for-Hire Plot
Angela Morris, Texas Lawyer
September 21, 2015
A recent arrest warrant alleges that an Austin solo was selling heroin to a man and tried recruiting the man to commit a murder-for-hire, alleged an arrest warrant affidavit.
The lawyer, James N. Walker, was arrested and charged on Sept. 18 with solicitation of capital murder. He is being held in the Travis County Jail on a $100,000 bond, according to Travis County Sheriff’s Department inmate records. If Walker were convicted of solicitation of capital murder, a first-degree felony, he could face five to 99 years in prison, or life in prison, and up to a $10,000 fine.
The Austin Police Department received a call on Sept. 11 from a tipster, “Joshua,” who reported that he was solicited to kill someone, said the Sept. 21 affidavit for warrant of arrest and detention in Texas v. Walker, filed in Travis County District Court.
“Joshua stated … that he is a heroin user and that the person he buys heroin from is an attorney and the attorney was trying to get ‘Joshua’ to kill someone for him,” said the affidavit. Detectives met with Joshua, who said he buys heroin twice per day from “Skip.” He described Skip’s appearance and said he lived at a car dealership in North Austin. Joshua drew a map to Skip’s residence, and detectives deduced the address. Based on all of the information, the detectives identified the suspect as Walker, an attorney who is licensed to practice law in Texas, the affidavit said.
On Sept. 14, the APD Major Crimes Task Force started helping with the case. A detective met with Joshua on Sept. 15 and showed him a booking photo of Walker. Joshua positively identified the person as “Skip.” “‘Joshua’ stated that approximately two weeks ago, ‘Joshua’ was buying heroin from Walker and Walker asked ‘Joshua’ to kill someone for him. Walker asked ‘Joshua’ if he had a long rifle and told ‘Joshua’ that he wanted the intended victim dead because of a dispute. ‘Joshua’ was not able to positively identify the intended victim and only knew the intended victim was a white male that frequents a known bar in the Austin area,” the affidavit said.
On Sept. 17, an APD detective had Joshua do a “controlled narcotics buy” from Walker, under surveillance and recorded with audio and video. Joshua bought heroin from Walker. Later, an analysis of the substance tested positive for heroin with a weight of 0.85 grams. “Walker agreed to pay ‘Joshua’ $1,000 … to kill the intended victim. Walker told ‘Joshua’ that he would provide a photo and the address of the intended victim to ‘Joshua.’ Walker told ‘Joshua’ that he (Walker) would look for a gun to give to ‘Joshua’ to commit the murder of the intended victim. Walker told ‘Joshua’ … the first and last name of the intended victim, and spelled it,” said the affidavit.
The detective researched the intended victim’s name, and found his Texas driver license and social security number. The detective confirmed that the intended victim did frequent the Austin-area bar. Walker’s State Bar of Texas profile lists an address that matches the address in the warrant and affidavit. The profile said he was licensed in 1981 after he received his law degree in 1979 from St. Mary’s University School of Law. He has no public disciplinary history. The profile said that Walker practices in the areas of: business, technology, creditor-debtor, criminal, intellectual property, commercial litigation, personal injury litigation and more. Walker did not answer a phone call, and an automated message said that the mailbox would not accept new messages.
Read more: http://www.texaslawyer.com/id=1202737740507/Austin-Lawyer-Arrested-in-MurderforHire-Plot#ixzz3mOO3jFjY
As most of you may already know, motor vehicle crashes kill more teenagers than any other trauma or disease. As we think back when we were teen drivers, many of us wonder how we survived. Distractions were present back then, as was substances that impaired one’s driving, as they are today. The only real new distractions today are CELL PHONES.
ARE YOU AWARE THAT AT&T AND VERIZON have applications that can impede any texting or cell phone use while your teenager’s car is moving. Verizon has an application that cost about $20 a month for fleet vehicle monitoring, which you can buy. You pay about $150 and plug in an electronic module that connects with your car’s computer system and this connects to your Verizon account and you can actually monitor your teen driver’s hours of driving, speeds, and location. You can even set parameters to notify you by text message if your teen driver’s vehicle exceeds a certain speed, is operated past your set curfew hours, or leaves geographic boundaries that you can set! Check these applications out…they could help save a life!!
Teen Drivers Distracted Big Time by Cellphones
A study, by the AAA Foundation for Traffic Safety, analyzed about 1,700 videos taken from inside crash vehicles. The videos are used as part of a private program designed to coach drivers to improve performance. According to the group’s analysis, all forms of distraction were a factor in 58% of the studied crashes, including in 89% of the crashes where the vehicle left the road and in 76% of the accidents involving rear-end collisions. The top distraction, found in about 15% of the crashes, involved the driver interacting with at least one passenger in the vehicle. Next, at 12%, was the driver using a cellphone to talk, text or review the screen for messages and such.
MICHAEL MUSKAL, LA Times 03/26/2015
Read Article: LA Times
The dating app start-up Tinder has resolved a sexual harassment lawsuit lodged by one of its early employees without admitting wrongdoing, and one of the executives targeted by the lawsuit has left the company. Whitney Wolfe, who describes herself as Tinder co-founder, had alleged in a lawsuit filed in June that two male superiors at the West Hollywood start-up pressured her to resign and directed threatening and disparaging comments at her. Among others, the suit targeted Sean Rad, the chief executive, and Justin Mateen, the chief marketing officer. Wolfe sought damages, including lost wages and stock options.
Mateen resigned from Tinder in the wake of the lawsuit, a source unauthorized to speak publicly about the situation said Monday. Tinder declined to comment, and a call to a number listed for Mateen wasn’t answered. Mateen and Wolfe had been in a relationship for some time. Wolfe said in a court filing that it devolved into Mateen making “sexist, racist, and otherwise inappropriate comments, emails and text messages.”
The company, which is majority-owned by Barry Diller’s IAC Corp., never responded to the allegations in court. Instead, Tinder extended its deadline to reply throughout the summer as negotiations took place. Wolfe’s attorneys filed Friday to have the Los Angeles County Superior Court case dropped. “Whitney is proud to be a co-founder of Tinder and of the role that she played in the app’s success,” the firm Rudy, Exelrod, Zieff & Lowe said in a statement. “She is now pleased to be able to focus her energy, talents, and ideas on exciting new opportunities.” Attorney David Lowe declined to comment on Wolfe’s case, but said that in general, “Jury trial is not the only way to get justice in court cases.” “This wasn’t the first case and this won’t be the last case with allegations of women being treated badly at technology companies,” he added.
Tinder’s free, ad-less app ranks among the nation’s 100 most-downloaded apps, according to data from AppAnnie. It lets two people who are nearby message each other if they secretly “heart” one another. Tinder produced 10 million such matches a day in June, though recent reports indicate it’s now up to 12 million.
Let me preface this posting with the fact that I am an EMT former First Responder, wife is RN, and father a physician and professor of medicine. WE all support doctors but do not support incompetent physicians who injure and kill innocent patients. Unfortunately in Texas the TEXAS STATE BOARD OF MEDICAL EXAMINERS has a less than stellar track record of suspending grossly incompetent physicians. This must change!
Anatomy of a Tragedy In late 2010, Dr. Christopher Duntsch came to Dallas to start a neurosurgery practice. By the time the Texas Medical Board revoked his license in June 2013, Duntsch had left two patients dead and four paralyzed in a series of botched surgeries. Physicians who complained about Duntsch to the Texas Medical Board and to the hospitals he worked at described his practice in superlative terms. They used phrases like “the worst surgeon I’ve ever seen.” One doctor I spoke with, brought in to repair one of Duntsch’s spinal fusion cases, remarked that it seemed Duntsch had learned everything perfectly just so he could do the opposite. Another doctor compared Duntsch to Hannibal Lecter three times in eight minutes.
Saul Elbein, Texas Observer 08/29/2013
Read Article: Texas Observer
A Baltimore Circuit Court judge ruled Monday that a lawsuit can go forward against Morgan State University that contends the school failed to protect Joshua Ceasar, who was brutally beaten last year by an electrical engineering student who previously showed signs of violence and mental instability. The student, Alexander Kinyua, 22, was later accused of murder and cannibalism in the death of a family friend. Judge Videtta A. Brown found that there was potential for “foreseeability” on the part of the school that “something bad was going to happen,” said Steven D. Silverman, Caesar’s attorney.
Medical Boards Discipline Physicians for Online Behavior
Medical licensing boards are beginning to see complaints about unprofessional online behavior by physicians, and many of these complaints resulted in serious disciplinary actions, including license revocation, according to a research letter published in the March 21 issue of JAMA. Dr. Ryan Greysen, MD, Division of Hospital Medicine at The University of California, San Francisco, and his colleagues report that 48 of the 68 executive directors of medical licensing boards responded to the study survey. Of those 48 Medical Ethics Boards who responded, 44 (98%) indicated receiving at least 1 complaint about an online professional breach. The most common complaints reported inappropriate communication with a patient, such as sexual misconduct, which was reported to 33 of the 48 boards who responded.
“We’ve just found a new way to violate our own standards,” Jason Jent, PhD, assistant professor of clinical pediatrics, Division of Clinical Psychology, Department of Pediatrics, University of Miami Miller School of Medicine, Florida, said to Medscape Medical News. Dr. Jent, who has published about physician online behavior, has no association with the JAMA letter. “Some of the violations we’ve seen in face-to-face communication, or over the phone, or by mail have now extended to online behavior. This is something we have to pay attention to,” he added. The study authors say much the same: “Furthermore, these violations also may be important online manifestations of serious and common violations offline, including substance abuse, sexual misconduct, and abuse of prescription privileges.” Dr. Jent said that these violations may actually be underreported. “People come across these, and it’s so new they’re not sure they should report it,” he said. “Or, on the flip side, are we seeing an increasing prevalence of online professional violations that may call for more specific training for online behaviors?”
DALLAS (AP) — Two women subjected to body cavity searches along a highway have settled their civil rights lawsuit against the Texas Department of Public Safety.The Dallas Morning News reports the $185,000 settlement was finalized Tuesday. A DPS statement Wednesday says an agreement was reached by all parties and the litigation has been settled.Last July’s search of 38-year-old Angel Dobbs and her 24-year-old niece, Ashley Dobbs, by a female trooper was captured by patrol car video. Trooper Kelly Helleson allegedly used the same glove for both body searches. No drugs were found.Helleson, who was later fired, faces two counts of sexual assault and two counts of official oppression.