Can I Sue a Bar or Restaurant if I was Raped by an Employee?
[Post updated January 2021] Rape and sexual violence have no borders. They can occur anywhere. A Houston lawyer has stepped forward and accused a Brennan’s restaurant bartender of spiking her drink and then raping her in her own apartment. The case has widespread implications because the restaurant may be on the hook for her pain, suffering and loss of work.
There are very few civil lawsuits filed over sexual assault. Although the victims are certainly entitled to damages, the prospects of collecting money from someone in prison are not very promising. And that means lawyers don’t want to take the cases.
In the civil sense, “winning” isn’t getting a jury to award $20 million, it means collecting that money. Inmates in Texas prisons earn between 60¢ and $1.75 per hour. To collect $20,000,000.00 isn’t physically possible for someone making just pennies per hour.
If rape victims filing civil lawsuits are rare, trying to hold an employer of the accused rapist responsible for the victims substantial damages is very rare.
The victim [we will use the name Jane Doe] says she went to the Brennan’s restaurant in Houston after work with a colleague. Her friend left but jane stayed and had dinner at the bar.
According to her complaint, the bartender (Sean Kerrigan) “accidently” spilled her drink and then replaced it. When he did so, he spiked it with an unknown drug. She doesn’t remember much after that.
Security camera footage from the restaurant shows Jane being escorted from the bar at closing time by Kerrigan and a Brennan’s manager, Chris Lockhart. Another manager can be seen observing but taking no action. Prior to that night, Jane did not know Lockhart or Kerrigan.
She remembers lapsing in and out of consciousness during the night and knowing that she was being raped by Kerrigan. Because of the drugs, however, she was unable to physically stop the assault or seek help. In the morning Kerrigan and the manager pulled the covers off Jane and began laughing at her.
If this wasn’t already tragic enough, after forcing the men to leave Jane discovered that prescription medication and money were missing from her purse.
A hospital exam that night confirmed she had been raped.
Kerrigan and the manager were fired after the rape allegations surfaced. Kerrigan was indicted for aggravated sexual assault in 2018 and died a short time later. He was accused of rape by another victim as well.
Since the assault, Jane took a leave of absence from her law firm and apparently lost a partnership opportunity. She says she is suffering from post traumatic stress disorder and has not been able to return to work.
Is an Employer Liable for Sexual Assault by an Employee?
As noted above, Jane filed suit against Brennan’s of Houston and not Lockhart. (Kerrigan is dead and presumed to have no assets.)
Court records shed light on how the restaurant responded to Jane’s rape accusations.
After Jane first contacted the restaurant, she met with Alex Brennan-Martin, the son of the late Ella Brennan, a noted New Orleans restauranteur. [Media reports indicate that Brennan’s of Houston is affiliated with the same restaurant group that operates Commanders Palace and SoBou in New Orleans.] Brennan-Martin allegedly first wouldn’t tell her the names of the employees seen in the surveillance tape. He also claimed that Lockhart was a waiter when he actually was a manager. Finally, her complaint says he lied and said the tape only showed Lockhart carrying Jane out of the restaurant.
Her complaint also says the restaurant failed to conduct a background check on Kerrigan before hiring him as a bartender.
In seeking to hold the restaurant liable, Jane makes several legal claims.
First, she says that Kerrigan was acting in the scope of his employment when he drugged her and over served her with alcohol.
Next, she says that Lockhart as manager was acting in the scope of his employment when he took Jane to her home where she was raped by Kerrigan.
She also makes a “premises liability” claim against the bar saying that the bar owed patron such as Jane a duty of care and violated that duty by failing to supervise Lockhart and Kerrigan and allowing her to be drugged and later raped.
Next, she says the bar was both negligent and grossly negligent for hiring and failing to properly train Kerrigan and Lockhart.
Finally, she says the bar is responsible for the actions of its agents.
Although the complaint was just filed, Brennan-Martin is appears to trying the case in the media. According to a prepared statement published by the New Orleans Times Picayune, he said,
“While we condemn what she states happened to her in the strongest terms, we strenuously dispute any allegation that Brennan’s or Mr. Brennan-Martin (proprietor) is somehow responsible for the actions of individuals off work and off premises.
“In 2017, Ms. Doe informed Brennan’s management via email that she would be pressing charges against one of the employees and asked Brennan’s to cooperate with the Houston Police Department and the Harris County District Attorney, both of which we did fully. In the same email correspondence, she thanked Mr. Brennan-Martin for his ‘swift action’ and expressly stated that Brennan’s was ‘not at fault.’
“Unfortunately, one of the employees passed away in November 2018 before Ms. Doe’s charges against him could be tried in a court of law. And today, sadly, she contradicted her previous statements with the filing of this lawsuit against Brennan’s.”
Shockingly, the statement almost defends Kerrigan and blames the victim for her physical and emotional injuries. If the quote is accurate and heard by the jury, the restaurant might have to do some real damages control
Again, assuming the complaint is accurate, a case against Kerrigan and Lockhart would be clear cut. Such a lawsuit also wouldn’t likely net any compensation for Jane, either. So let’s dig deeper and analyze the liability of the bar.
Many courts hold that employers are not responsible for the actions of their employees if the employee was acting outside the scope of his or employment. And one can argue that assaulting customers is never within the scope of employment.
There have been some recent carve out where courts have ruled that someone who has a position of authority over another may be acting within the scope of their authority merely because they are charged with custody of the victim. The common example is a police officer or corrections officer.
Did Kerrigan’s duties as a bartender include drugging a patron’s drink or taking her home and committing a heinous assault? Of course not. But what about Lockhart? His duties as a manager may well include helping over served or impaired patrons get home safely.
What about the duty to supervise? As managers, Lockhart and the unidentified other manager who stood by and failed to act as Jane was carried out the restaurant and put into an employee’s car may have had a duty to act and a duty to supervise.
In many states, bars and restaurants can also be responsible for injuries sustained by overserved patrons.
Some courts have found hotels and spas responsible for sexual assaults committed by employees and that took place on the premises. A frequent example occurs when a massage therapist is accused of sexual misconduct with a guest / client.
This case is unique in that the lawsuit says the restaurant is responsible for the actions of an employee off premises. Normally, we would agree that such a case was not viable. This case has unique facts, however. The assault started when Jane’s drink was spiked, continued as she was overserved and hours later was still ongoing when manager Lockhart carried her out. And all these activities took place on premises.
The case also involves a licensed premise. In most states, bars have heightened responsibilities to prevent customers from being overserved.
Finally, the assault involved two managers, one directly (Lockhart) and the other indirectly (unidentified manager watching an employee carry out a drunk patron and presumably put her in the employee’s car.
Update: In October 2020, Brennans settled the case in a confidential agreement. It is common for employers to settle for an undisclosed sum of money. They don't want other victims to feel empowered and step forward with their own claims. While we can't share any details of the settlement - we don't know them - we are hopeful that the victim will see some justice. She lost the opportunity to see her attacker face a jury on the criminal charges but at least she is presumably receiving fair compensation from the restaurant.
Often victims appreciate the confidential nature of settlements as well in order to maintain their privacy. In this case, the victim stepped forward voluntarily and identified herself prior to the settlement. She did so hoping that other victims of sexual violence might feel empowered to also step forward and take action. Only about 23% of victims report what happened to the police. That number falls even more when the victim is male.
Of survivors who do call police, only a small fraction file civil claims. We think the number is small because most don't understand their rights.
Sexual Assaults of Restaurant Workers
The Brennans of Houston story is somewhat unusual in that the victim was a patron assaulted by a restaurant employee (bartender). Typically, service industry workers stand a much higher risk of being sexually assaulted or abused by co-workers. There an entire host of reasons why the prevalence of sexual harassment and sexual abuse is so high in the service industry. If you are a restaurant worker on the receiving end of abuse, assault or a hostile work environment, make sure you read our special report on sexual misconduct in the service industry.
Were you sexually assaulted? We can’t guarantee that we can successfully sue the person committing the assault. The best justice for the rapist is often the criminal justice system. We may be able to sue the premises where the assault took place or the person who employed the rapist if there is a tie to the criminal behavior.
Ready to see if you have a case? Contact us online or by phone at 877.858.8018. All inquiries are protected by the attorney-client privilege and kept CONFIDENTIAL. (There is never a fee for a consultation.)
*Note this story is based on the complaint filed in court. Brennan's of Houston settled with no findings of guilt or other responsibility.