P.F. and Wife, J.F., as Next Friends of Their Daughter I.F. v. S.S., S.S, and S.S. ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-18-00122-CV
P.F. AND WIFE, J.F., AS NEXT APPELLANTS
FRIENDS OF THEIR DAUGHTER
I.F.
V.
S.S., S.S., AND S.S. APPELLEES
----------
FROM THE 442ND DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 16-03909-442
----------
MEMORANDUM OPINION1
----------
In this appeal, we are asked to determine if the trial court erred in entering a
final summary judgment denying P.F. and his wife, J.F, as next friends of their
daughter, I.F., recovery against the defendants S.S., S.S., and S.S. We affirm in
part and reverse in part.
1
See Tex. R. App. P. 47.4.
Background
Given the repetitiveness of the defendants’ initials, we will call the three
defendants by the following pseudonyms, Dad, Junior, and Debbie. In turn, P.F.,
J.F., and I.F., collectively will be referred to as Irsia, the pseudonym we assign to
the daughter. The suit arose from sexual assaults committed by A.V. (pseudonym
Alvin), I.G. (pseudonym Ivan), and J.A. (pseudonym Joe). Irsia was the victim of
the assault, and it occurred at a party hosted by Junior and supervised by Debbie.
As evidenced by the record before us, Irsia and Junior were 9th graders while
Debbie was an 11th grader.
Junior and Debbie were the children of Dad, who had left for the weekend
to attend Family Day at the college attended by his eldest daughter. No evidence
of record indicates that Dad either knew of or consented to the party before it
transpired. However, the record contains evidence indicating that Dad forbade his
children from having guests over while he was gone. Ignoring this directive, Junior
decided to host a small gathering of his fellow freshmen with the anticipation that
they bring alcoholic beverages. Among those invited were Alvin, Irsia, a female
friend of Irsia we will call Annette, and several boys. Ivan and Joe also attended.
Like her father, Debbie knew not of the party either but learned about it when
her brother’s friends appeared at her doorstep. Rather than stop the gathering
and heed her father’s earlier directive, she opted to supervise the event.
As expected, various of Junior’s friends brought alcoholic beverages with
them. Others brought marijuana. Junior and the other freshmen, including Irsia,
2
began to partake of those substances. The number of attendees grew and soon
encompassed twenty to thirty males and four females. The females consisted of
Irsia, Annette, Debbie, and a friend of Debbie’s (i.e., May) who came to help at the
behest of Debbie.
In time, Irsia became extremely intoxicated, as did other of the 9th graders.
Debbie knew this and began taking some of the children home while May remained
behind to oversee the others. While Debbie was gone, Irsia exited the house,
stumbling as she did. Alvin followed. Whether he too was drunk is unclear.
Nevertheless, the pair were in the front or side yard of the abode when Alvin began
kissing Irsia. Soon thereafter, Irsia found herself on the ground with Alvin grasping
her head and attempting to engage her in oral sex. Ivan appeared at the scene
and briefly conversed with Alvin. Unsure of what happened, Irsia felt her pants
being removed. At that point, Alvin had intercourse with the intoxicated Irsia while
Ivan may have engaged in either intercourse or oral sex with her.2 After Alvin and
Ivan finished, Joe encountered Irsia on the ground and admitted to having her
perform oral sex on him.
Apparently, May knew of what was occurring outside while Debbie was
gone. This led her to phone Debbie and inform her that Irsia and Joe were having
2
Evidence of record indicates that Alvin later bragged at school about his
activity with Irsia.
3
intercourse in the front yard. Rather than intercede, May simply locked the front
door of the house.
Alvin’s conduct with Irsia on the lawn was not his first sexual encounter at
the party. Earlier that evening, he was the recipient of oral sex performed upon
him by Annette in a bathroom. The record indicates that Junior and Irsia stumbled
upon the two in the bathroom. Yet, they were not the only ones who knew of this
episode. Most, if not all, of the other attendees had knowledge of it. Indeed, many
stood outside the bathroom door and laughed at what was happening. So too did
Debbie discover the activity. Not only did she deem it “disgusting” but also told
Alvin and Annette to exit the bathroom. When the couple failed to comply, Debbie
simply walked away. Annette and others in attendance later joked about her
actions.
The events of the night resulted in Irsia (via her parents) suing Dad, Debbie,
and Junior for negligence and negligence per se.3 Dad, Debbie, and Junior filed
both a traditional and no-evidence motion for summary judgment after answering
the petition. Both the traditional and no-evidence aspects of their motion were
founded upon similar grounds. Through those grounds, Dad, Debbie, and Junior
focused on the existence of a duty to act with care and on causation. Regarding
the former, they urged that they had no legal duty to act for two reasons. First,
3
Other causes of action were alleged, but they are not the subject of this
appeal; that is, Irsia did not appeal their rejection by the trial court.
4
they were social hosts who, under Texas law, could not be held liable for the
conduct of those to whom they provided alcohol or made it accessible, including
minors. Second, they lacked any special relationship with Alvin, Ivan, and Joe,
and absent such a relationship, they had no duty to control Alvin, Ivan, and Joe.
Regarding the topic of causation, they focused their argument on the alleged
presence of a superseding cause, the latter being the criminal conduct of Alvin,
Ivan, and Joe. Because they could prove the existence of such superseding
conduct, Irsia allegedly had no evidence establishing a causal link between their
purported negligence and her injuries.
In granting the motion for summary judgment, the trial court did not specify
any particular ground it thought determinative. It simply denied Irsia recovery
against her opponents. The decision spawned this appeal and its issues
concerning whether the trial court erred in granting summary judgment on any of
the grounds alleged.
Discussion
Given that this is an appeal from a final summary judgment, we apply the
standards of review recently described by the supreme court in Dallas Morning
News, Inc. v. Tatum, No. 16-0098, 2018 WL 2182625, at *4 (Tex. May 11, 2018)
and this court in Nationwide Property & Casualty Insurance Co. v. Revive Mfg.,
LLC, No. 02-17-00148-CV, 2018 WL 2248667, at *2 (Tex. App.—Fort Worth May
17, 2018, no pet.) (mem. op.). The parties are referred to those cases for a
discussion of the standards.
5
Social Host and Right to Control
As previously mentioned, summary judgment was sought on the grounds of
no duty and superseding cause. Regarding the former, Dad, Debbie, and Junior
posited that the duty was nonexistent because “Texas Courts have repeatedly held
that there is no duty for social hosts absent a special relationship, and there are
no exceptions to the insulation from liability of social hosts when they do not fall
into the special relationship category.” So too was it argued that “absent a special
relationship, the defendants did not owe the plaintiffs a legal duty to control or
prevent the tortious acts of another.”
Whether a legal duty exists is a question of law for the court to decide from
the facts surrounding the occurrence at issue. Haji v. Valentine Enters., Inc.,
No. 02-13-00066-CV, 2014 WL 1257275, at *4 (Tex. App.—Fort Worth Mar. 27,
2014, no pet.) (mem. op.). Being a question of law, a reviewing court need not
defer to the trial court’s decision on the matter.
The supreme court has refused to impose liability upon social hosts who
provide alcohol to others resulting in injury to the person who consumed the
alcohol or to third parties. Graff v. Beard, 858 S.W.2d 918, 921–22 (Tex. 1993);
see Hernandez v. Gonzalez-Flores, 530 S.W.3d 253, 259 (Tex. App.—Houston
[14th Dist.] 2017, pet. denied) (holding that “[t]o the extent Hernandez is arguing
that the ongoing activity was Gonzalez-Flores’s hosting of a party at which he
permitted guests to drink and use a gun, Gonzalez-Flores had no duty to
Hernandez as a social host to prevent a guest from injuring her”); Gatten v.
6
McCarley, 391 S.W.3d 669, 675 (Tex. App.—Dallas 2013, no pet.) (stating that
“Appellant does not cite any authority establishing a legal duty by social hosts to
control their guests and prevent them from inflicting injury on other guests,” and
that “Texas courts have declined to impose such a duty on social hosts”). This
rule against holding social hosts responsible includes the provision of alcohol to
those under eighteen years of age. Reeder v. Daniel, 61 S.W.3d 359, 364–65
(Tex. 2001).
The supreme court has also held that there is no general duty to control
others, though a special relationship may sometimes create a duty to aid or protect
others. Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 504 (Tex. 2017); see
Mendoza v. La. Stone, LLC, No. 07-15-00133-CV, 2015 WL 9473932, at *2 (Tex.
App.—Amarillo Dec. 22, 2015, pet. denied) (mem. op.) (holding the same); Gatten,
391 S.W.3d at 674 (holding the same). Examples of such relationships include
employer/employee, parent/child, and independent contractor/contractee.
Mendoza, 2015 WL 9473932, at *2; Gatten, 391 S.W.3d at 674. It is through the
special relationships that one may gain or have foisted upon him the right or duty
to control another. Gatten, 391 S.W.3d at 674; see Carter v. Abbyad, 299 S.W.3d
892, 901 (Tex. App.—Austin 2009, no pet.) (observing that the relationships that
form an exception to the general rule of no duty “all involve situations where the
defendant either had a recognized legal obligation to control the other person’s
conduct or the right to do so”). If such a relationship exists, then the party in control
of another may owe a duty of care to persons foreseeably exposed to danger
7
arising from the defendant’s failure to reasonably exercise that control. Gatten,
391 S.W.3d at 674.
Yet, special relationships are not the sole means of creating a right of or duty
to control. It also may arise from the actual exercise of control over another. Shell
Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex. 2004); Bell v. VPSI, Inc., 205 S.W.3d
706, 719–20 (Tex. App.—Fort Worth 2006, no pet.). Indeed, one voluntarily
entering an affirmative course of action affecting the interests of another is
regarded as assuming a duty to act and must do so with reasonable care. Otis
Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983); accord Newsom v. B.B.,
306 S.W.3d 910, 914 (Tex. App.—Beaumont 2010, pet. denied) (stating the same).
For instance, though an employer owes no duty to protect the public from the bad
acts of an off-duty employee committed off the worksite, such a duty does arise
when the employer actually exercises control over the employee’s off-duty
activities that cause harm. Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593,
594 (Tex. 2006). In other words, exercising control creates a duty of care, and the
duty is commensurate with the control retained. Lee Lewis Constr. Co. v. Harrison,
70 S.W.3d 778, 783 (Tex. 2001); Mendoza, 2015 WL 9473932, at *3.4
4
To the extent that Dad, Debbie, and Junior suggest that Irsia failed to plead
a cause of action involving the assumption of control, we say the following. Dad,
Debbie, and Junior interjected the issue into the fray when attempting to disprove
that they had either a duty or right to control the conduct of third parties.
Furthermore, in her reply to the motion for summary judgment, Irsia often
mentioned Debbie’s decision to supervise the party, that is, assume control over
those in attendance. So too did she 1) assert that “[a]lthough one does not
generally have the duty to control another person or to aid a person in distress,
8
Assuming arguendo that Dad, Debbie, or Junior made alcohol accessible,
they would have no duty to control the kids who consumed the substance or protect
them or third parties from injury caused by such consumption, per the holdings in
Graff, Reeder, and their progeny. Furthermore, no evidence of record indicates
that Dad and his children had an employment, family, contractor, or similar
relationship with Alvin, Ivan, Joe, or Irsia; so, it cannot be said that the former had
the common type of special relationship with the latter that would create a duty of
care.
Yet, evidence of record reveals that Debbie agreed to remain home the night
of the party to supervise the activities of those present. She admitted as much and
eschewed contacting Dad about the gathering because she considered herself
mature enough to watch over those present. Having assumed the role of
supervisor or chaperone, she “was kind of just like monitoring” things. As she
would later explain, though, “when it started getting crazy, that’s when I was like
okay, I need to call [May] and – ‘cause I can’t watch all these people by myself.
It’s getting out of control.” So she contacted May and asked for her help. May
soon arrived with her boyfriend to assist Debbie. Eventually, Debbie sought to
control the growing swell of attendees by locking the front door and having
one who chooses to exercise that control or provide the aid must do so responsibly
and not make the circumstances worse,” and 2) attempt to illustrate how Dad,
Debbie, and Junior assumed control over those present. So, the assumption of
control over the affair and those in attendance and the consequence of same were
not foreign topics.
9
whomever appeared contact her and ask for permission to enter. She also
regulated the boisterousness of the attendees and their use of marijuana. They
were told by her that they needed to smoke the substance “outside and make sure
they cleaned up from [sic] themselves” so her father would not discover evidence
of the activity.
The sexual conduct of those present was another area in which Debbie
interceded. She apparently knew that attendees would engage in same as evinced
by a statement in her subsequent affidavit to the police. In it, she “explained” that
“at parties people hook up.” The attendees at Junior’s party apparently did just
that, and it involved more than promiscuity. Again, the ratio of males to females
was anywhere from five or ten to one, depending upon whether the two
chaperones (Debbie and May) were excluded. Of the two freshman girls present,
one (Irsia) was discovered on a couch with a boy, and they were “getting kind of
inappropriate,” as characterized by Debbie. This led her to tell the 9th graders to
“break it up.” Other evidence of record could lead one to reasonably deduce that
Irsia was drunk by the time she joined the boy on the couch.
The remaining freshman female (Annette) also was found engaging in
inappropriate activities. They involved her performing oral sex in a bathroom on
one of the boys (Alvin) who would eventually accost Irsia in the front yard. Debbie
found the action “disgusting” and told the couple to leave the bathroom. They did
not comply, and Debbie simply walked away.
10
Authority obligates us to construe the summary judgment record in a light
most favorable to the nonmovant. Nationwide, 2018 WL 2248667, at *2. Upon
our doing so, it can be said that a rational fact-finder could reasonably interpret the
foregoing evidence as both intent and effort on the part of Debbie to exercise
control over those at the party. Such a fact-finder could also reasonably infer that
the activities being subjected to control included not only the attendees’ conduct in
general but also their engagement in matters of sex. So, while it may be that Dad,
Debbie, or Junior had neither the right nor duty to control the minors at the party
under the social host doctrine, a question of fact exists as to whether the
chaperone of the event voluntarily entered into an affirmative course of action
affecting the interests of another thereby creating a duty for her to act with
reasonable care. In other words, a fact question exists as to whether Debbie
exercised actual control over the attendees and their conduct (both general and
sexual in nature) so as to impose on her a duty to protect the attendees and others
from the foreseeable consequences of their actions, which included sexual activity.
Another matter touching upon the presence of duty bears attention. Irsia
has repeatedly urged that “[t]his is not a social host case, but rather a dangerous
environment case.” [Emphasis added.] That is, Dad, Debbie, and Junior
“together acted to create a dangerous environment populated by unsupervised
teenagers, drugs, alcohol, and known predators.” [Emphasis added.] “[T]he
environment created by [them] . . . breached the Appellees’ common law duty to
take affirmative actions to make safe or avoid further increasing this danger of
11
their own creation.” [Emphasis added.] Their “concerted negligent actions
created a dangerous condition that ultimately was the proximate cause of the
injuries to” Irsia. [Emphasis added.] Furthermore, these assertions echo
allegations expressed in the original petition. For instance, we encounter
averments about Dad, Debbie, and Junior 1) having “a duty to provide a safe
environment for guests attending the party,” and 2) “collectively breach[ing] the
duty owed to [Irsia] . . . as a guest attending the party, to provide a safe
environment.” [Emphasis added.] This thread of argument was continued within
her response to the summary judgment motion. There too did she posit that Dad,
Debbie, and Junior “created a dangerous condition in their home” and “owed
[her] a duty to prevent injury to her and others that it [sic] reasonably appeared or
should have reasonably appeared in the exercise of their lawful rights others . . .
may be injured by the dangerous condition that was created.” [Emphasis
added.]
Simply put, one can reasonably interpret Irsia’s contentions as implicating a
cause of action that actually does impose a duty to act. A duty arises when one
creates a dangerous situation; should he or she do that, the person then has the
duty to attempt to prevent injury to others “if it reasonably appears or should appear
that others in the exercise of their lawful rights may be injured thereby.” Gatten,
391 S.W.3d at 675–76; see Buchanan v. Rose, 159 S.W.2d 109, 110 (Tex. 1942)
(stating that when a party negligently creates a dangerous situation it then
becomes his duty to do something about it to prevent injury to others if it reasonably
12
appears or should appear to him that others in the exercise of their lawful rights
may be injured by the situation); see also SmithKline Beecham Corp. v. Doe,
903 S.W.2d 347, 360 (Tex. 1995) (stating that “[o]nly where the party created the
dangerous situation or where the party enjoys a special relationship with the other
party giving rise to a duty will this general rule not apply,” the general rule being
that a mere bystander who did not create the dangerous situation had no duty to
prevent injury to others). So, irrespective of the contention that social hosts owe
no duty to others or that her opponents had no duty or right to control others, Irsia
alleged a cause of action recognized in Texas as imposing a duty to act. More
importantly, Dad, Debbie, and Junior did not request summary judgment on that
particular cause of action via the traditional aspect of their summary judgment
motion. To the extent that the no evidence aspect of their motion may have
touched upon the claim, it merely concerns whether the superseding criminal
conduct of Alvin, Ivan, and Joe broke the requisite causative link. We deal with
the latter below.
In sum, Dad, Debbie, and Junior did not establish, as a matter of law, that
their purported status as social hosts or the lack of any duty to control third parties
entitled them to summary judgment. Thus, the trial court could not have
legitimately granted them relief on those grounds.
Proximate and Superseding Cause
We now turn to the remaining basis for summary judgment relief mentioned
in the motion. As previously mentioned, it involves causation and whether
13
superseding criminal conduct broke the requisite causative link. Dad, Debbie, and
Junior alleged in their motion that Irsia’s purported “damages were the result of the
criminal, intentional, negligent, unforeseeable acts of Defendants [Alvin, Ivan, and
Joe] and were not proximately caused by Defendants [Dad, Debbie, and Junior].”
That is, their “third party criminal conduct [was] a superseding cause and negate[d]
proximate cause.”
Normally, a third party’s criminal conduct is a superseding cause of injury
arising from a defendant’s negligence. Pichardo v. Big Diamond, Inc., 215 S.W.3d
497, 501 (Tex. App.—Fort Worth 2007, no pet.). The same is true even though a
defendant’s conduct created a situation which afforded an opportunity to the third
party to commit the tort or crime. Phan Son Van v. Pena, 990 S.W.2d 751, 753–
54 (Tex. 1999). Yet, this is not so if, at the time, the defendant realized or should
have realized the likelihood that a situation affording a third party the opportunity
to commit a tort or crime “might be created” and a third person might avail himself
of the opportunity to commit the tort or crime. Id.; Pichardo, 215 S.W.3d at 501
(stating that a third party’s criminal conduct is a superseding cause unless the
criminal conduct was a foreseeable result of the defendant’s negligence).
Furthermore, a defendant seeking summary judgment on the ground that he
negated foreseeability as an element of proximate cause must prove more than
simply that the intervening third party criminal conduct occurred. Pichardo,
215 S.W.3d at 501. The movant must establish that the third party criminal
conduct rose to the level of a superseding cause based on various non-exclusive
14
indicia. Id. Those indicia include: 1) whether the intervening force brought about
harm different in kind from that which would otherwise have resulted from the
actor’s negligence; 2) whether the intervening force’s operation or the
consequences of it appeared extraordinary rather than normal in view of the
circumstances existing at the time; 3) whether the intervening force operated
independently of any situation created by the actor’s negligence or was a normal
result of such a situation; 4) whether the operation of the intervening force was due
to a third person’s act or failure to act; 5) whether the intervening force was due to
an act of a third person which is wrongful toward the other and, as such, subjects
the third person to liability; and 6) the degree of culpability of a wrongful act of a
third person which sets the intervening force in motion. Id. Should the movant
satisfy his burden, then the obligation falls upon the plaintiff to create a material
issue of fact by presenting evidence that, “despite the extraordinary and abnormal
nature of the intervening force, there was some indication at the time that such a
crime would be committed.” Id. at 501–02.
That Alvin, Ivan, and Joe engaged in oral or vaginal sex with Irsia without
her consent are the purported superseding criminal events. They occurred several
hours into the party. Yet, by that time, Debbie, the chaperone: 1) knew the ratio of
boys to girls had grown anywhere from 5-to-1 to 10-to-1; 2) knew the attendees
were 9th graders approximately fourteen to fifteen years old; 3) knew Irsia was
highly intoxicated; 4) knew many other attendees were quite intoxicated; 5) knew
Irsia had been “on the couch with one of the boys, and [she] had to like -- it was
15
getting kind of inappropriate, so [she] was like, okay, y’all need to break it up”;
6) knew “at parties people hook up”; 7) knew that things “started getting crazy”;
8) knew (as did Junior) one of the few females at the party had engaged in oral
sex in a bathroom with Alvin; 9) knew everyone at the party was laughing at what
occurred in the bathroom between Annette and Alvin; 10) knew that the attendees
viewed the engagement in such sexual activity with minimal seriousness or
nonchalance; and 11) knew that by 9:30 p.m. everyone was becoming too drunk
to control themselves. When becoming too drunk to control themselves, several
of the kids were taken home by Debbie, and it was then that Alvin, Ivan, and Joe
struck.
There is evidence of record also disclosing that Junior 1) believed Irsia was
drunk soon after arriving at the party, if not when she arrived; 2) witnessed Irsia’s
intoxication progress to the point where she was stumbling; 3) considered the
event as getting out of control; 4) knew of the oral sex occurring in the bathroom;
5) knew the attendees were laughing about it; 6) thought everyone was just having
fun; 7) would have “kicked everybody out” if he was not himself drunk; 8) witnessed
Irsia becoming “flirtatious”; 9) saw her becoming “really touchy, just as girls are
when they’re drunk”; 10) saw Irsia and Annette sitting on boys’ laps and hugging
them; and 11) believed Irsia became so drunk that she would not have been able
to consent to sex.
The crime of sexual assault occurs in numerous ways. Though consent, or
the lack thereof, is often an element of the offense, it need not be if the victim is a
16
child. See, e.g., Tex. Penal Code Ann. § 22.011(a)(2)(A) (West Supp. 2017)
(making it a crime to intentionally or knowingly cause the penetration of a sexual
organ of a child by any means); Smallwood v. State, 471 S.W.3d 601, 607 (Tex.
App.—Fort Worth 2015, pet. ref’d) (op. on reh’g) (stating that a child cannot
consent to sexual contact or intercourse and that compulsion is not an element
required to be proved in the aggravated sexual assault or sexual assault of a child).
And, a “child” is anyone younger than seventeen. Tex. Penal Code Ann.
§ 22.011(c)(1).
Moreover, penetrating a child’s sexual organ, id. § 22.011(a)(2)(A), or
penetrating a child’s mouth with a sexual organ, id. § 22.011(a)(2)(B), fall within
the scope of sexual assault. Given this, the factual nature of the conduct
transpiring at the party, in the bathroom, and involving a fourteen- or fifteen-year-
old female child likened to factual conduct deemed criminal under state law. Again,
being a child, Annette could not have consented to the activity. Smallwood,
471 S.W.3d at 607. And, most importantly, Debbie, the chaperone, knew of its
occurrence before leaving the house to take home several drunk children. She
also knew of the general attitude of the attendees towards the sexual act and the
inappropriate behavior between Irsia and a boy on the couch.
Viewing the events in reverse, a fact-finder reasonably could analogize them
to a snowball rolling down a hill. Things began with drinking and ingesting drugs,
grew to inappropriate sexual activity on a couch, soon became oral sex in a
bathroom, and culminated in rape outside. Though Debbie tried to intervene when
17
the snowball grew to oral sex in the bathroom with a child, she ultimately “walked
away” as everyone else laughed. Junior would have “kicked everyone out” if he
was not so drunk and, therefore, thought people were just having fun. And, if the
fact-finder so viewed the developing events, it also would have evidence before it
to support a reasonable inference that 1) the sexual assaults committed by Alvin,
Ivan, and Joe were not necessarily different in kind from that which would
otherwise have resulted from failing to stop earlier sexual conduct; 2) their sexual
assaults were not extraordinary given the circumstances existing at the time;
3) their sexual assaults were not necessarily independent of the relatively lax
attitude toward “hooking-up” between drunk children at the party; or 4) their sexual
assaults would not have occurred had the chaperone done more than simply walk
away from the kids engaging in oral sex in the bathroom.
The same evidence also presents a fact-finder with a question of fact
regarding whether the assaults would have occurred had Junior been sober and
Debbie not simply walked away from the events transpiring in the bathroom given
the escalating nature of the conduct. She had undertaken the role of chaperone
and undertaken the effort to control both conduct in general and conduct of a
sexual nature. Nothing was done to control the escalating events, though, when
her initial effort was met with noncompliance. Despite previously realizing that
circumstances were growing so crazy that she needed help to control the party,
the chaperone walked away, allowed the party to continue, let Alvin stay, and did
nothing else as everyone merely laughed at the fact of children engaging in sex.
18
In short, the summary judgment record contained some evidence creating a
material issue of fact concerning whether Debbie failed to exercise reasonable
care after assuming control of the kids and that her failure proximately caused
Irsia’s eventual injuries.
That the events began with inappropriate behavior between children on a
couch and turned into oral sex in a bathroom are also important bits of evidence
serving to distinguish the situation at bar from those in an opinion upon which Dad
and his children place much reliance, Doe v. Messina, 349 S.W.3d 797 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied). The Messina court had before it
circumstances involving teenagers having a party, drinking alcohol, and ingesting
drugs at a house. Id. at 799. Eventually, the party ended, and the attendees went
to sleep. Id. One of the female attendees (Doe) was later awakened by another
guest (Kervin) who proceeded to rape her, and the victim sued the homeowner for
negligence and premises liability. Id. Like Dad and the others here, the
homeowner in Messina attacked causation by interjecting Kervin’s criminal
conduct. Id. at 800. Summary judgment was entered against Doe and
subsequently affirmed on appeal. See id. at 799. In deciding to affirm, the
reviewing court conceded that teenagers consuming alcohol without adult
supervision could lead to foreseeable consequences such as “promiscuity.” Id. at
803. Yet, it concluded that the act of rape was “an extraordinary consequence.”
Id. The court’s decision, however, must be placed in context. Doe seemed to be
arguing that rape was a foreseeable consequence of the mere ingestion of drugs
19
and alcohol by a group of young people at a party. Id. at 802–03 (stating that “we
will determine whether Doe’s sexual assault was the foreseeable consequence of
appellees’ alleged failure to supervise a group of teenagers who were consuming
alcohol”). The appellate court disagreed because, among other things, there was
no evidence that the assault happened due to the victim’s drunken state. Id. at
804.
Here, Irsia testified, via deposition, about 1) being “very, very incoherent” at
the time of the assaults, 2) running outside and stumbling, 3) Alvin following her
outside, 4) Alvin “bugging” and “trying to kiss” her, 5) her “falling all over the place”
and eventually falling to the ground, 6) Alvin removing her pants, 7) Alvin “kind of
. . . pushing [her] head to give him oral sex” 8) “being drunk and [so] intoxicated”
that she did not exactly remember what Alvin and Ivan spoke about after Ivan
appeared at Alvin’s side, and 9) both Alvin and Ivan trying to force her to perform
oral sex as she tried to get up from the ground while incoherent. It must not be
forgotten that by the time she was on the ground outside, she and another boy had
already engaged in inappropriate behavior on a couch while drunk. This is some
evidence indicating that the victim’s drunken state played a role in the assaults,
unlike the circumstances in Messina.
We also have evidence of an eventual assailant engaging in sexual activity
in a bathroom, activity which the chaperone knew of and considered disgusting.
Such was missing in Messina, as was evidence that the kids at the gathering
20
viewed sexual activity with nonchalance and laughter or that the person who opted
to supervise the drunk kids viewed parties as a place to “hook up.”
Simply put, the evidence underlying the decision in Messina differs greatly
from that here. And, the evidence present here but absent in Messina could
reasonably support a fact-finder’s conclusion that sexual assault at the gathering
was not necessarily an extraordinary consequence.
The same can be said of another opinion upon which Dad, Debbie, and
Junior relied, Spears v. Coffee, 153 S.W.3d 103 (Tex. App.—San Antonio 2004,
no pet.). It involved a physical altercation between minors at the Coffee home. Id.
at 105. Spears sued the Coffees for negligently supervising the group. In affirming
the summary judgment upon the claim of superseding cause, the reviewing court
noted 1) Spears’s admission that “prior to the incident, Michael and Billy had not
been involved in any physical confrontation”; 2) “Mrs. Coffee[’s] state[ment] that
nothing like this incident had ever before occurred in her home”; and 3) her
daughter’s statement that though Billy seemed aggravated upon arriving at the
house on the day of the incident, “he ‘got fine’ within a few minutes.” Id. at 107.
Here, there is evidence of sexual activity at the party progressing from displays of
inappropriate conduct on a couch to oral sex in a bathroom and, ultimately, to rape
in the front yard. Moreover, all knew, including the chaperone, that Alvin was a
participant in the bathroom episode. This evidence tends to render Spears quite
distinguishable.
21
Missing from the record at bar, though, is evidence that Dad knew or
approved of the party before leaving to visit his eldest daughter at college. Again,
Junior planned the gathering without anyone knowing until guests began to arrive.
He, not Dad or Debbie, determined who to invite and anticipated that they would
bring alcohol. And, while there is evidence that Dad eventually became aware of
the venture, that did not occur until hours after it had begun and participants were
leaving. Nothing of record suggests he approved of it after being contacted by an
attendee’s mother, knew the identities of those attending the event, or knew about
the sexual activities in which various attendees engaged. The absence of this
evidence leads us to find the observation and holding in Messina applicable as to
him. Belatedly discovering that his children hosted an event involving minors
wherein alcohol was present is, alone, not a basis upon which a rational fact-finder
could reasonably deduce that sexual assault was a foreseeable consequence of
the event from Dad’s viewpoint. From his perspective and vis-a-vis any potential
negligent act he may have committed, the criminal conduct of Alvin, Ivan, and Joe
was a superseding cause of Irsia’s injuries, and Irsia presented no evidence
creating a material fact on the issue.
In sum, the evidence of record creates material issues of fact regarding both
proximate and superseding cause. That is true only with regard to the negligence
claims asserted against Debbie and Junior. Thus, the trial court did not err in
granting Dad summary judgment.
22
We reverse the trial court’s summary judgment denying Irsia recovery upon
her claim of negligence asserted against Debbie and Junior and remand the cause
to the trial court for further proceedings as to Debbie and Junior. See Williams v.
Lavender, 797 S.W.2d 410, 412 (Tex. App.—Fort Worth 1990, writ. denied)
(recognizing the general rule that, in Texas, minors are severally liable for their
own torts). In all other things, the summary judgment is affirmed.
/s/ Brian Quinn
BRIAN QUINN
CHIEF JUSTICE
PANEL: SUDDERTH, C.J.; MEIER, J.; and QUINN, C.J. (Sitting by Assignment).
SUDDERTH, C.J., and MEIER, J., concur without opinion.
DELIVERED: July 19, 2018
23