copyright ©2008 Donna C. Peavler
| Criminal Liability When a Nonsubscribing Employer Can Be Held Liable for Criminal Acts Committed Against an Employee |
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A nonsubscribing employer is not automatically responsible for crimes committed
against employees, even if the employee is attacked or injured in the course and
scope of the employee's work.
In a 1998 case named Timberwalk Apartments v. Cain, the Texas Supreme Court
set forth five factors a court must consider when deciding whether a defendant owes
the plaintiff a duty to protect him from crime: proximity, recency, frequency,
similarity, and publicity. These factors determine whether the crime was foreseeable,
since a defendant can only be held responsible "when the risk of criminal conduct is
so great that it is both unreasonable and foreseeable."
Although an employer cannot stick its head in the sand and ignore obvious signs of
criminal activity, there is no duty to regularly inspect criminal records to determine the
extent of crime in the area. When criminal actions are widely publicized, on the other
hand, businesses in the area are expected to have knowledge of such crimes. And if
the employer knows of crime in area--especially violent crime--it should take
reasonable measures to protect its employees from criminal harm.
Depending on the facts of the case, several defenses may be available, such as the
comparative negligence of the criminal and the "superseding-cause" or "intervening-
cause" defense. For an example of how these doctrines are applied, see one of our
firm's victories in: Barker v. Kroger Texas L.P., 2004 WL 2793268 (Tex. App.—Fort Worth
Dec. 2, 2004, no pet.) (wrongful death claim by family of employee who was killed by former
co-employee on her way to work).
against employees, even if the employee is attacked or injured in the course and
scope of the employee's work.
In a 1998 case named Timberwalk Apartments v. Cain, the Texas Supreme Court
set forth five factors a court must consider when deciding whether a defendant owes
the plaintiff a duty to protect him from crime: proximity, recency, frequency,
similarity, and publicity. These factors determine whether the crime was foreseeable,
since a defendant can only be held responsible "when the risk of criminal conduct is
so great that it is both unreasonable and foreseeable."
Although an employer cannot stick its head in the sand and ignore obvious signs of
criminal activity, there is no duty to regularly inspect criminal records to determine the
extent of crime in the area. When criminal actions are widely publicized, on the other
hand, businesses in the area are expected to have knowledge of such crimes. And if
the employer knows of crime in area--especially violent crime--it should take
reasonable measures to protect its employees from criminal harm.
Depending on the facts of the case, several defenses may be available, such as the
comparative negligence of the criminal and the "superseding-cause" or "intervening-
cause" defense. For an example of how these doctrines are applied, see one of our
firm's victories in: Barker v. Kroger Texas L.P., 2004 WL 2793268 (Tex. App.—Fort Worth
Dec. 2, 2004, no pet.) (wrongful death claim by family of employee who was killed by former
co-employee on her way to work).
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Texas Nonsubscription. Answering your legal questions...