By Richard L. Weber, Esq.
‘During a one-time window of opportunity, victims of child sexual abuse who are now well into adulthood are able to pursue lawsuits over events that occurred decades ago. This dramatic change in the law has resulted in a wave of new litigation across New York state.’
The Child Victims Act has set aside the statute of limitations that previously governed child sexual abuse claims in New York, and in the process has “revived” thousands of potential claims.
During a one-time window of opportunity, victims of child sexual abuse who are now well into adulthood are able to pursue lawsuits over events that occurred decades ago.
This dramatic change in the law has resulted in a wave of new litigation across the state — in fact, the New York state court system has implemented new rules to handle the flood of revived cases that have hit the courts since the revival window opened in August 2019.
The vast majority of the “revived” lawsuits seek to recover financial damages not only from the individual alleged abuser, but from the businesses and entities that employed or supervised that individual.
Claims against businesses are made under legal theories such as negligent hiring, negligent supervision and negligent retention. Because the Child Victims Act concerns childhood sexual abuse incidents, the “revival” window is particularly impactful to business that regularly employ or serve young adults.
Traditional “first job” employers such as restaurants, retail shops and grocery stores often employ workers under 18 years of age, and decades ago they may not have utilized the more thorough employee training and conduct protocols that are commonplace today. Similarly, businesses such as medical practices and sports facilities provide services for young adults that in the past may have included direct, one-on-one interaction.
Because the alleged incident(s) may have occurred decades ago, current business owners and managers may have no personal knowledge of the alleged events, the accuser or the accused. They may have no staff or records left at the business that could shed light on the parties or the allegations.
It is important to remember that a plaintiff who alleges that a business was responsible for the unsanctioned conduct of a former employee has the burden of proving that claim: The Child Victims Act does not impose automatic liability on employers for the unsanctioned acts of former employees. Nevertheless, businesses that employed or provided services to children should take steps to prepare for potential revived childhood sexual abuse claims.
Prudent steps include:
• Review and update current policies designed to prevent childhood sexual abuse, including employee conduct policies.
• Investigate and review historical insurance coverage. As the revival window allows for lawsuits on events that occurred decades in the past, it is important to ascertain the specific insurance coverage that was in place for the business in prior years. Long-time insurance brokers and agents may be able to assist with documenting historical insurance coverages.
• If your company receives notice of a “revived” child sexual abuse claim — or if you are personally aware of events that may lead to a claim — make prompt effort to locate and safeguard records concerning the alleged events, abuser and victim, and identify current or former staff that may have knowledge of the alleged events. The passage of time may make this task difficult, but it is important. A large number of the revived cases identify the alleged victim by a “Jane Doe” pseudonym — this means that the initial litigation court filing may not provide the name of the alleged victim, which can complicate efforts to promptly identify internal records related to the victim or the alleged events.
• Consult with an attorney and your insurance carriers (both current and former) promptly about any revived childhood sexual abuse claim as soon as you are made aware of the claim.
• Develop an appropriate public relations response. Allegations that a business is at fault for the independent and unsanctioned actions of a former employee that occurred decades ago could impact customer relations today. Present management should discuss what (if any) public statement should be made in the event of a claim, and designate specific individuals to handle media inquiries.
Richard L. Weber is an attorney with Bond, Schoeneck & King, PLLC in Syracuse. He specializes in business litigation, trust and estate litigation, and property disputes. To contact him, send an email to firstname.lastname@example.org.