Samuel Patrick Brennan v. Matthew Kaufman ( 2021 )

Reversed and Remanded and Memorandum Opinion filed August 24, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00513-CV
SAMUEL PATRICK BRENNAN, Appellant
V.
MATTHEW KAUFMAN, Appellee
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2017-73209
MEMORANDUM OPINION
Appellant Samuel Patrick Brennan appeals the trial court’s summary
judgment in favor of appellee Matthew Kaufman. Appellant raises two issues on
appeal. First, he contends that the trial court erred in concluding that he released
intentional torts committed against him when he signed a release form. Second, he
contends that the trial court erred in rendering summary judgment in favor of
appellee. We reverse and remand.
I. BACKGROUND
On September 7, 2016, the parties were playing in a soccer match on
opposing teams. Appellant alleges that appellee attacked him deliberately during
the game. Appellant suffered a “severe concussion, facial fractures that required
surgery and . . . ongoing loss of sensation and nerve damages as a consequence of
the violent act.” Appellee argues that appellant was injured when the two parties
were involved in a “header” in which they banged their heads together.
Appellant filed suit against appellee for assault. Appellee filed a no-
evidence motion for summary judgment arguing that appellant had “no evidence
(or less than a scintilla) to support his claim under Element (1) – that [appellee]
acted intentionally, knowingly or recklessly.” Appellee also filed a traditional
motion for summary judgment arguing that appellant released his claims in the
form release appellant signed prior to participating in any games at a local soccer
club. Appellee argued that appellant’s injuries were the result of an “inherent risk”
of the game. Appellee argued that the summary judgment evidence showed that
both players were attempting to win the ball during play with a header move; thus,
the injury was accidental in nature and an inherent risk. Appellee further argued
that the “business records” produced by the league show that the referee and league
official both determined that appellee was going for the ball at the time of the
collision and “that there was no reason to believe that the collision was intentional
or purposeful in nature.” Appellee argued that the district attorney declined to
bring any criminal charges against appellee for his conduct. Appellee attached
excerpts from appellant’s and appellee’s depositions, the business records of the
soccer club, the district attorney’s file on the case, and the release form.
Appellant filed his response to appellee’s no-evidence motion for summary
judgment attaching two witness statements in which the witnesses recalled the
2
incident and averred that appellee acted intentionally and that the move was not an
accident stating “[appellee] did not appear to be trying to use his head to intercept
the soccer ball, but instead appeared to intentionally hit [appellant’s] face with the
back of his head. . . . [appellee’s] act was intentional and not an accident.”
Appellant argued that the eyewitness testimony created a fact issue on appellant’s
claim for assault.1
In his response to appellee’s motion for summary judgment, appellant
argued that his claims for intentional torts were not released by the release signed
with the soccer club as a matter of public policy. Appellant also argued that the
lack of prosecution of the alleged assault by the district attorney and the “no fault”
finding by the soccer league was not conclusive of whether appellee had
committed an assault.
The trial court conducted a hearing on appellee’s motions for summary
judgment and granted appellee’s “motion for summary judgment” without
specifying the reason the motion was granted.
II. WAIVER
Appellee argues that appellant has waived any argument regarding the no-
evidence motion for summary judgment. We address appellee’s argument first
because if meritorious, it is dispositive of the entire appeal.
Rule 38.9 of the Texas Appellate Rules of Procedure requires the court to
construe briefs liberally. See Tex. R. App. P. 38.9. Appellate briefs should be
construed reasonably, yet liberally, so that the right to review is not lost by waiver.
Id. “An appellant can preserve error ‘in the body of their appellate brief,’ even if it
is not separately listed in the notice of appeal or presented as an issue in the brief.”
1
Appellee moved to strike the affidavits filed by appellant but the trial court did not rule
on appellee’s motion.
3
Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 162 (Tex. 2012) (quoting Perry v.
Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam)).
Here, appellant argues in a footnote that “[i]f the Court were to determine
that the trial court also granted a no-evidence motion for summary judgment,
which Appellant disputes, the subject statements also defeat the no-evidence
motion for summary judgment.” Appellee argues that appellant has “admitted”
that he “does not contest the trial court’s granting of Appellee’s no evidence
motion for summary judgment” citing to a statement made in appellant’s brief
where he argued that “the only issue before this Court is the trial court’s granting
of the traditional motion for summary judgment.” This ignores that appellant was
arguing that the only motion granted was the traditional motion, a contention he
maintained in the footnote referenced above.
Construing appellant’s brief reasonably, yet liberally, we conclude the issue
is not waived.
III. ASSAULT
Appellant argues that the trial court erred in determining that (1) appellant
failed to bring forth evidence of appellee’s intent; and (2) appellee established as a
matter of law that appellee lacked the requisite intent to commit assault. Appellee
contends that the injury at issue was an inherent risk of the game and, therefore, no
negligence duty is owed to appellant. Appellee then argues that there was “no
evidence” that appellee’s actions were intentional, knowing, or reckless.
A. General Legal Principles
We review the trial court’s grant of a motion for summary judgment de
novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009). In reviewing either a no-evidence or traditional summary
4
judgment motion, we must take as true all evidence favorable to the non-movant
and draw every reasonable inference and resolve all doubts in favor of the non-
movant. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23–24
(Tex. 2000) (per curiam); Haven Chapel United Methodist Church v. Leebron, 496
S.W.3d 893, 899 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
A no-evidence motion for summary judgment is essentially a motion for a
pretrial directed verdict. Tex. R. Civ. P. 166a(i); Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2009). After an adequate time for discovery, a party
without the burden of proof may, without presenting evidence, seek summary
judgment on the ground that there is no evidence to support one or more essential
elements of the non-movant’s claim or defense. Tex. R. Civ. P. 166a(i). The non-
movant is required to present evidence raising a genuine issue of material fact
supporting each element contested in the motion. Id.; Timpte Indus., 286 S.W.3d
at 310. Generally, we first review the no-evidence summary judgment motion.
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
The party moving for a traditional summary judgment has the burden to
show that no genuine issue of material fact exists and that the movant is entitled to
summary judgment as a matter of law. Tex. R. Civ. P. 166a(c); Willrich, 28
S.W.3d at 23. To be entitled to traditional summary judgment, a defendant must
conclusively negate at least one essential element of each of the plaintiff’s causes
of action or conclusively establish each element of an affirmative defense. Am.
Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). Evidence is
conclusive only if reasonable people could not differ in their conclusions. City of
Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). Once the defendant produces
sufficient evidence to establish the right to summary judgment, the burden shifts to
the plaintiff to come forward with competent controverting evidence raising a
5
genuine issue of material fact. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197
(Tex. 1995). When, as in this case, the trial court does not specify the grounds on
which it rendered summary judgment, we must affirm that summary judgment if
any of the independent grounds for summary judgment grounds are meritorious.
Chrismon v. Brown, 246 S.W.3d 102, 106 (Tex. App.—Houston [14th Dist.] 2007,
no pet.).
The elements of civil assault mirror those of a criminal assault. Loaisiga v.
Cerda, 379 S.W.3d 248, 256 (Tex. 2012). As relevant in this case, an assault
occurs if a person intentionally, knowingly, or recklessly causes bodily injury to
another. See id. Liability in the context of sports injuries has not yet been
addressed by the Texas Supreme Court. See Sw. Key Program, Inc. v. Gil-Perez,
81 S.W.3d 269, 271–72 (Tex. 2002) (discussing validity of three different
approaches and declining to adopt any in the case at hand). However, this court
has previously held that “[r]egardless or whether the risk that resulted in plaintiff’s
injury is inherent in the nature of the sport in question, a participant-defendant
owes a duty not to engage in gross negligence or intentional conduct causing injury
to the plaintiff.” Chrismon, 246 S.W.3d at 112; see also Dunagan v. Coleman, 427
S.W.3d 552, 427 S.W.3d 552, 558 (Tex. App.—Dallas 2014, no pet.) (noting that
“participants are not immunized from all liability for their conduct” including
intentional conduct); Connell v. Payne, 814 S.W.2d 486, 489 (Tex. App.—Dallas
1991, writ denied).
B. No-Evidence Summary Judgment
In his no-evidence motion for summary judgment, appellee argued there was
no evidence “that [appellee] acted intentionally, knowingly or recklessly.” To
defeat appellee’s no-evidence motion, appellant was required to present evidence
raising a genuine issue of material fact showing appellee acted intentionally,
6
knowingly, or recklessly. Tex. R. Civ. P. 166a(i); Timpte Indus., 286 S.W.3d at
310.
Appellant attached the affidavits of two witnesses to his response to
appellee’s no-evidence motion for summary judgment. The second witness
testified that while participating in the soccer game he witnessed the incident from
close range:
As the soccer ball drew near [appellant] and [appellee] I witnessed
[appellee] throw his head backwards into the face of [appellant] while
they were both still in the air. [Appellee] did not appear to have been
trying to use his head to intercept the soccer ball, but instead appeared
to intentionally hit [appellant’s] face with the back of his head.
The testimony of appellant’s witness is not that appellee attempted to use his
head to hit the ball and, as a result, caused the injury to appellant. Instead,
appellant’s witness testified that appellee was not targeting the ball with his head
but was targeting appellant with his head. Evidence favorable to the non-movant is
taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985).
The testimony of the witnesses is sufficient to raise a fact issue regarding
appellee’s intent. See Greer v. Davis, 921 S.W.2d 325, 328 (Tex. App.—Corpus
Christi 1996), writ denied, 940 S.W.2d 582 (Tex. 1996) (affidavits regarding intent
in context of sport-related injury sufficient to raise fact issue ); see also Spoljaric v.
Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986) (“Intent is a fact question
uniquely within the realm of the trier of fact because it depends upon the
credibility of the witnesses and weight to be given to their testimony.”).
Appellee argues that the affidavits fail to create a fact issue because they are
conclusory. “Conclusory statements in an affidavit unsupported by facts are
insufficient to support or defeat summary judgment.” 1001 McKinney Ltd. v.
Credit Suisse First Boston Mortg. Capital, 195 S.W.3d 20, 27 (Tex. App.—
7
Houston [14th Dist.] 2005, pet. denied). “A conclusory statement is one that does
not provide the underlying facts to support the conclusion.” Id. The second
witness’s affidavit related the facts as personally observed by him during the
soccer match. The relation of the facts show how and why the witness concluded
or believed that appellee was acting with intent, thus showing the underlying facts
upon which his conclusion was supported. Therefore, the affidavit is not
conclusory.
Appellee argues that Chrismon mandates affirming the summary judgment
in this case because of the inherent risks involved in the game of soccer. 246
S.W.3d at 112. However, under Chrismon, when a party is alleging an intentional
assault that caused injury, inherent risk is not considered. Id. at 112 (“Regardless
of whether the risk that resulted in the plaintiff's injury is inherent in the nature of
the sport in question, a participant-defendant owes a duty not to engage in gross
negligence or intentional conduct causing injury to the plaintiff.”). A participant
owes a duty to not engage in intentional conduct causing injury. Id. Thus,
appellee was not required to provide any proof regarding whether the “risk in
question” was inherent or not.
We conclude appellant presented evidence raising a genuine issue of
material fact.
C. Traditional Summary Judgment
In appellee’s traditional motion for summary judgment, he argued that the
“summary judgment evidence shows that there was no malicious intent” and that
appellant’s injuries were the result of an accidental collision. Appellee attached
8
two emails from two different people involved in the soccer club.2 The first stated
that:
There was no reason to believe the collision in [the] soccer game . . .
was intentional. . . . [appellee] jumped into [appellant] at a full sprint.
It happened quickly and I did not see it as well as [another person],
but I think [appellant] was elbowed in the face by [appellee].
The second witness stated that the collision did not look purposeful but that the
impact was “very hard.” Appellee argued that the parties were merely both trying
to play the ball and accidentally collided. Lastly, appellee argued that because no
criminal charges were brought against him, there was no assault in this case.
Appellant responded and relied again on the affidavits of the same witnesses
that testified in support of his response to the no-evidence summary judgment
motion. Appellant also argued that the lack of criminal proceedings was not
dispositive with regard to his civil claim for assault.
For summary judgment to be proper on appellant’s claim for assault,
appellee had to negate at least one element of appellant’s claim. Appellee focused
on negating the element of intent. Appellant’s witnesses stated that they did not
believe that the collision was purposeful or intentional. However, even if this were
sufficient to negate that the assault was intentional, it says nothing of whether
appellee acted recklessly.3 See Greer, 921 S.W.2d at 328. That the district
attorney decided not to press charges does not conclusively establish that appellee
was entitled to summary judgment on the element of intent. See Kroger Tex. Ltd.
2
Both statements were in the form of emails and were not objected to.
3
Appellee argues that appellant is only proceeding under a theory that appellee
“intentionally” assaulted appellant, and not that appellee knowingly or recklessly assaulted
appellant. Appellant denies this in his brief and also pleaded “knowingly or recklessly” in his
original petition. We disagree that appellant has limited his claim to “intentional” assault as
opposed to reckless or knowing assault.
9
P’ship v. Suberu, 216 S.W.3d 788, 794 (Tex. 2006) (“[A]cquittal . . . shows only
that the government did not prove . . . guilt beyond a reasonable doubt.”); Jackson
v. Train, 495 S.W.2d 36, 39 (Tex. App.—Beaumont 1972, no writ) (“The no-bill is
not evidence that plaintiff was innocent . . . .”). As a result, appellee failed to
establish his right to traditional summary judgment on appellant’s claim for
assault.
Because we conclude that appellant presented evidence raising a genuine
issue of material fact with regard to the no evidence summary judgment and that
appellee failed to negate any element of appellant’s claim for assault, we sustain
appellant’s second issue.
IV. RELEASE
In appellant’s first issue, appellant argues that the trial court erred in
rendering summary judgment based on the release agreement between appellant
and the soccer club. Appellant argues that the release does not mention any
intentional torts and that a release of an intentional tort cannot be enforced as a
matter of public policy.
“Generally, a contractual provision ‘exempting a party from tort liability for
harm caused intentionally or recklessly is unenforceable on grounds of public
policy.’” Zachry Const. Corp. v. Port of Houston Auth. of Harris Cty., 449 S.W.3d
98, 116 (Tex. 2014) (citing RESTATEMENT (SECOND) OF CONTRACTS § 195(1)
(1981)); see also Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d
653, 687 (Tex. 2008) (Hecht, J., concurring); Crowell v. Hous. Auth. of Dallas, 495
S.W.2d 887, 889 (Tex. 1973); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 219–
22 (Tex. 2002) (suggesting that a tariff or contract provision including a pre-injury
waiver of liability for gross negligence or willful misconduct may be so
unreasonable as to violate public policy). In Zachry, the supreme court concluded
10
that a contract provision that purported to shield a party from liability for its own
deliberate and wrongful conduct was void as against public policy.4 See id.This court has previously held that “pre-accident waivers of gross
negligence are against public policy.” Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336
(Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing Mem’l Med. Ctr. Of E.
Tex. v. Keszler, 942 S.W.2d 433, 435 (Tex. 1997) (per curiam) (suggesting pre-
injury waiver of liability for gross negligence is against public policy)). Other
appellate courts have held that pre-injury waivers of gross negligence violate
public policy and are void. See Van Voris v. Team Chop Shop, LLC, 402 S.W.3d
915, 924 (Tex. App.—Dallas 2013, no pet.) (collecting cases). This is because
“gross negligence involves conduct that poses an extreme risk of harm to others
and an actor that proceeds with conscious indifference to the rights, safety, or
welfare of others.” Van Voris, 402 S.W.3d at 924. Turning to intentional conduct,
such as an assault, the considerations are the same as those with gross
negligence—an actor that poses an extreme risk of harm to others and proceeds to
intentionally, knowingly, or recklessly cause bodily injury to another.
“[E]nforcing a provision to allow one party to intentionally injure another with
impunity violates the law.” Zachry Const. Corp, 449 S.W.3d at 117. “[W]hen no
litigation is ripe or pending, we read releases more narrowly because releases and
4
We note that a general release in a contract is different from consent. See
RESTATEMENT (SECOND) OF TORTS § 892 (1979) (“One who effectively consents to conduct of
another intended to invade his interest cannot recover in an action of tort for the conduct or the
harm resulting from it.”); see also RESTATEMENT (SECOND) OF CONTRACTS § 195(1) (1981) (“A
term exempting a party from tort liability for harm caused intentionally or recklessly is
unenforceable on grounds of public policy.”); Smith v. Holley, 827 S.W.2d 433, 438 (Tex.
App.—San Antonio 1992, writ denied) (“This is true of defamation, surgical procedures, trespass
to land, sporting events that involve physical contact, and a host of other acts that would be
tortious in the absence of consent.”). Here, appellee argued that the broad form general release
signed by appellant released any and all intentional torts, including the alleged assault at issue in
this case. Appellee did not argue that appellant consented to the assault inflicted in this case.
11
indemnity agreements before an injury occurs involve different policy concerns.”
Sydlik, 195 S.W.3d at 336.
Appellee argued in the traditional summary judgment motion that appellant
waived his rights to bring a lawsuit “because [appellant’s] present claim for the
intentional tort of assault is subject to the Release document.” The release in this
case stated “[t]he term ‘claims’ includes all actions and causes of action, claims,
losses, costs, expenses and damages, including legal fees and related expenses.
THE RELEASING PARTIES HEREBY RELEASE, WAIVE, DISCHARGE,
AND COVENANT NOT TO SUE THE RELEASED PARTIES FROM ANY
AND ALL CLAIMS RELATED TO OR ARISING FROM THE CLUB OR THE
ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS
ARISING FROM OR RELATED TO PERSONAL INJURY, ACCIDENTS OR
ILLNESSES (INCLUDING DEATH), AND/OR PROPERTY LOSS.” “Activity”
is defined as “the programs of the Club.”
Here, the same policy considerations are involved as in Zachry, namely
whether a broad form release can insulate a party from “future, deliberate,
wrongful conduct.” The release in this case is a broad form release, purporting to
release “all actions and causes of action” related to or arising from the “club” or
“activity” including, appellee argues, any claim for assault. It is important to note
that in the context of the release argument, appellee has not argued that appellant
has specifically consented to the alleged assault in this case by virtue of
participation in the game of soccer. Instead, appellee argues that appellant has, by
virtue of the release agreement between appellant and the soccer club, released
appellee from any assault appellee may inflict upon appellant during any game
played while at the club. “The law of torts imposes standards of conduct for the
protection of others against unreasonable risk of harm. One cannot exempt himself
12
from such liability for harm that is caused either intentionally or recklessly.”
RESTATEMENT (SECOND) OF CONTRACTS § 195. Reading the release narrowly and
considering the supreme court’s holding in Zachry, to the extent that the trial court
concluded that the release in this case released the claim of assault between
appellant and appellee, the trial court erred. See Zachry Const. Corp., 449 S.W.3d
at 116; Sydlik, 195 S.W.3d at 336. Such a conclusion would insulate a party from
its future, deliberate, wrongful conduct and is against public policy. Zachry Const.
Corp., 449 S.W.3d at 116.
We sustain appellant’s second issue.
V. CONCLUSION
Having concluded there was no briefing waiver and having sustained both of
appellant’s issues, we reverse the judgment and remand this case to the trial court.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Bourliot, and Spain.
13