Several spas across the country have come under investigation after women reported being inappropriately touched during massages. Unfortunately, this appears to be happening all too regularly. Recently, our firm resolved a number of cases involving sexual assaults. In one such case, a young woman was sexually assaulted during a massage at the spa of an international hotel chain. In another case, our firm represented a woman who became intoxicated at a hotel bar and was later driven to a secluded portion of the resort’s property where she was raped by a hotel employee.
The Legal Question at the Heart of Hotel Sexual Assault Cases
Can a hotel or spa be held accountable for the actions of an employee that sexual assaults a guest?
That is the one of the difficult legal questions presented by these types of cases. Under Florida law, “the general rule is that an employer cannot be held liable for the tortious or criminal acts of an employee, unless they were committed during the course of the employment and to further a purpose or interest, however excessive or misguided, of the employer.”1
Generally, sexual assaults and batteries by employees are held to be outside the scope of an employee's employment. However, there are limited exceptions—which we have been successful in arguing to recover on behalf of our clients. For example, if “the employee purported to act on behalf of the employer or when the employee was aided by the agency relationship,” the employer may be held liable for the actions of its employee.2 Likewise, conduct may be considered “within the scope of employment if it occurs substantially within authorized time and space limits, and it is activated at least in part by a purpose to serve the [employer].”3
In cases where a victim is sexually assaulted during a massage, the spa may be held liable because the masseuse was assisted in accomplishing the assault by virtue of his relationship with the spa and because the assault occurs within the time and space of the work being authorized by the spa, (i.e. the massage).
What Hotel Sexual Assault Survivors Should Do Next
Depending on the facts of your case, the spa or hotel may be held liable for negligent hiring, negligent retention, and/or negligent supervision. If an employer knew or should have known that an employee was not fit for the job, but hired him anyway, the employer may be held liable for negligent hiring.4 This makes it all the more important for hotels and spas to do proper background checks on their employees and to make sure they are properly vetting their applicants.
Likewise, if an employer becomes aware—or should have become aware—that a particular employee was not fit for his job but fails to fire, train, supervise, or otherwise fix the issue, the employer may be held liable for the sexual assault of the victim. Stewart Tilghman Fox Bianchi & Cain has successfully prosecuted sexual assault cases against various businesses including hotels, cruise lines, and spas.
Although sexual assault cases are among the most difficult and emotional cases that we handle, we take great pride in helping these victims achieve justice for what they have endured.
1 Nazareth v. Herndon Ambulance Serv., Inc., 467 So. 2d 1076, 1078 (Fla. 5th DCA 1985).
2 Goss v. Human Servs. Assocs., Inc., 79 So. 3d 127, 132 (Fla. 5th DCA 2012).
3 Hennagan v. Dep't of Highway Safety & Motor Vehicles, 467 So. 2d 748, 751 (Fla. 1st DCA 1985)
4 Davies v. Commercial Metals Co., 46 So.3d 71, 73–74 (Fla. 5th DCA 2010).