As the end of another school year approaches, thousands of Texas students are looking forward to graduation, summer, and going off to college. As they leave the nest, parents are inevitably faced with questions about their safety and security. This leads people to ask the question, what are the school’s obligations when it comes to preventing violent crimes against students such as sexual assault? If the school in question is a state school, the answer may shock you.
Sovereign Immunity Extends to State Schools
Under Texas law, the State government and all lower branches of government are immune from being sued or held liable unless they grant express permission by way of the Texas Tort Claims Act. This includes government-owned or operated schools, institutions, and buildings. Permission is granted only when the state is negligent in its operation of a motor vehicle or the operation and/or use of real or tangible personal property.
Third-Party Liability for Sexual Assault
When a sexual assault occurs on a business property, the business owner may be liable for a sexual assault under a premises liability theory or a negligent hiring theory under certain circumstances. Liability under premises liability law occurs when there is a history of sexual assaults occurring in or around the area and the business owner fails to warn patrons. Liability under negligent hiring occurs when the person committing the assault has a history of assault and the business owner was negligent in hiring the individual. Now, in many circumstances the business own is not liable for a sexual assault even though it occurred on his property. When there is no similar activity in the area or an employee has no criminal history to suggest inappropriate conduct, sometimes the sole proximate cause of the sexual assault is truly the assailant. Thus, the assault survivor needs to consult a sexual assault lawyer to investigate whether either of these legal theories applies.
The Government and Premises Liability
When you sue the Texas government under a premises liability theory, the Texas Tort Claims Act sets different rules for an ordinal premises liability defect case. First off the government owes only the duty owed to a licensee where as a business owner owes guests the duty of an invitee. In other words, when it comes to a dangerous or defective condition on the property, a private business is responsible if they knew or should have known of a dangerous condition that they failed to remedy or warn about whereas the government is only responsible if they have actual knowledge.
Additionally, the courts have allowed civil liability on the part of businesses and private persons when the negligence of a property owner is a contributing cause to the incident such as security lights out or the failure to warn of potential danger due to incidents in the area. In the case of government liability, the courts have found the actions alleged on the part of the government to not be a proximate cause due to the assailant’s actions. Dimas v. Texas State University System, 201 S.W.3d 260 (Tex.App.—Houston[14th Dist], 2006); Trevathan v. State, 740 S.W.2d (Tex.App.—Houston[1st. Dist.] 1987, writ denied).
Sexual Assault and Negligent Hiring By a State School
Unless it falls under statutory rape due to the students age, Texas laws governing student-teacher sexual relationships do not prohibit consensual relationships between teacher and student. Many Universities have their own rules against it, however. Non-consensual relations ships such as a teacher or staff member raping a student are obviously a crime under Texas law. In order to show that a school was liable for an employee raping a student, you would likely have to prove that they were negligent in hiring and/or continuing waive immunity for a negligent hiring cause of action. However, several Texas courts have held that the TTCA does not waive immunity for a negligent hiring cause of action. The basis for this is that such an allegation does not involve the use of real property or tangible personal property. City of Dayton v. Gates, 126 S.W.3d 288, 290–91 (Tex. App.—Beaumont 2004, no pet.); Eastland County Co-op. Dispatch v. Poyner, 64 S.W.3d 182, 190–91, 198 (Tex. App.—Eastland 2001, pet. denied); Davis v. Educational Services Center, 62 S.W.3d 890, 895–96 (Tex. App.—Texarkana 2001, no pet.); McCord v. Memorial Medical. Center Hospital, 750 S.W.2d 362, 363 (Tex. App.—Corpus Christi–Edinburg 1988, no writ). Obviously, it does not involve the use of an automobile either, thus it falls under none of the three exceptions created by the TTCA and is not a recognized cause of action under the TTCA.
Conclusion
Do not think that the State University or College has the same civil responsibility to protect people on their property as you can expect from a private business. When planning your courses, it is wise to consider the time and location of where your classes are so that you are not caught on campus late with no one else around. You cannot expect the school to go that extra step to ensure your safety when they basically have no civil legal responsibility to do so. I would also recommend checking your campus rules and regulations on carrying pepper spray if you know you will be on campus late.
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