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Sexual assault - Contributory negligence alleged against minor 17-year-old plaintiff.

Fulton County, Georgia

The female 17-year-old minor plaintiff contended that she was sexually assaulted by a maintenance man employed by the defendants owners and operators of an apartment complex where she resided. The plaintiff contended that the defendants were negligent in hiring the worker, since they knew or should have known that he had a prior record of 13 separate criminal violations at the time that he was hired, ranging from aggravated assault to forgery and theft. Furthermore, the plaintiff contended that the defendants knew or should have known that this worker had a current charge for aggravated assault pending at the time he was arrested for assaulting the plaintiff. The plaintiff contended that the defendants were also negligent in retaining the individual since criminal charges were pending against him.

The evidence revealed that the plaintiff resided with her mother and siblings in the defendants’ apartment complex. On February 14, ________, the head of the defendant’s maintenance department and one of his workers, the assailant, came to the plaintiff’s apartment to repair damage to the kitchen ceiling. After repairing the ceiling, the two men advised that they would have to return to repaint the ceiling after the repairs had dried sufficiently. The next day, while the minor plaintiff was alone in the apartment, the assailant returned to the door of the apartment. Although the plaintiff had been warned by her mother not to let anyone into the apartment while she was alone, she allowed the maintenance worker to enter the apartment since she recognized him from the previous day and knew that he was supposed to be returning at some point to paint the kitchen ceiling. The assailant had shown up at the door with a ladder and his tools.

When the assailant maintenance worker, who was 46 years old, gained access to the apartment and saw that the minor plaintiff was alone, he proceeded to sexually assault her and then left. He warned her not to tell anyone about what had happened. When the plaintiff’s mother returned to the apartment, she noticed that her daughter was upset and withdrawn and eventually learned what had occurred, whereupon she called the police. The next day, the maintenance worker was arrested when he reported to work.

The plaintiff maintained that subsequent to the assault, she became very withdrawn. The plaintiff obtained some psychiatric counseling, but discontinued the sessions due to transportation difficulties in getting to and from the therapist’s office.

The defendants contended that all of the charges against the employee assailant were minor in nature with the exception of a DUI charge.

The defendants further contended that the worker had no prior history of any sexual offenses. Furthermore, the defendants contended that the worker admittedly made numerous suggestive comments to the minor plaintiff prior to the actual sexual assault and although she had the opportunity, the plaintiff made no effort to call her mother or ask the man to leave her apartment. The defendants additionally argued that the plaintiff was sexually active prior to this incident and may well have consented.

The defendants also asserted that they had a policy in place to review prospective employee’s prior criminal records which was done on a case-by-case basis and that certain offenses would automatically disqualify an individual from employment, none of which were present in the case of the assailant worker.

The plaintiff had demanded in excess of $________ and the case was mediated. Following mediation the matter was settled for a confidential amount.

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