John MacOn, Leslie MacOn and MacKenzie MacOn v. Braum's, Inc., Demetria Ann Behan and Emmanuel Davis ( 2023 )

NO. 12-23-00083-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JOHN MACON, LESLIE MACON AND § APPEAL FROM THE 3RD
MACKENZIE MACON,
APPELLANTS
V. § JUDICIAL DISTRICT COURT
BRAUM’S, INC., DEMETRIA ANN
BEHAN AND EMMANUEL DAVIS,
APPELLEES § HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Appellants, John Macon, Leslie Macon, and Mackenzie Macon, appeal the trial court’s
granting of summary judgment in favor of Appellees, Braum’s, Inc. (Braum’s), Demetria Ann
Behan, and Emmanuel Davis. 1 We affirm the trial court’s judgment.
BACKGROUND
Braum’s is a restaurant and fresh market chain that operates stores in five states and has
approximately 12,000 employees, roughly 9,000 of whom work part time. Braum’s stores have
an open layout and are equipped with security cameras, and the internal doors do not have locks.
An adult supervisor or manager is always present during shifts worked by part-time employees.
According to Braum’s corporate representative, Braum’s only conducts background checks of
applicants for full-time positions or existing employees who are being considered for promotion
because part-time employees do not supervise other employees and are not in the position to
exercise control or authority over other employees.
1
Because Appellants have the same surname, when referring to them individually, we will use their first
names for clarity and brevity, and we will refer to them collectively as “the Macons.” We will refer to Behan and
Davis individually by their surnames, and we will refer to Braum’s, Behan, and Davis collectively as “Appellees.”
Mackenzie Macon and Ryan Harvey Beaulieu worked as salesclerks at the Braum’s store
in Athens, Texas, in 2019, when Mackenzie was sixteen years old and Beaulieu, a registered sex
offender, was twenty years old. 2 Mackenzie and Beaulieu met during their employment at
Braum’s, and they began exchanging messages and photographs via Instagram. Salesclerks at
Braum’s prepare menu items, take customers’ orders, perform cashier duties, serve prepared
orders, and carry out various cleaning and stocking duties. Behan was the general manager of the
Athens store, and Davis was an assistant manager. On March 26, 2019, Beaulieu was arrested
during his shift at Braum’s for failure to comply with sex offender registration requirements. 3
Mackenzie and Beaulieu engaged in sexual activity on three occasions during April 2019:
at her home after she gave Beaulieu the address, at her church, and at Beaulieu’s apartment after
she surreptitiously left her home. Mackenzie was aware of Beaulieu’s age but was unaware that
he is a registered sex offender. According to Mackenzie, Beaulieu did not force her to engage in
sexual activity with him; however, because Mackenzie was a minor, she could not legally consent
to sexual activity. One of Mackenzie’s parents learned that Beaulieu is a registered sex offender
and informed the Athens Braum’s store by phone. Braum’s terminated Beaulieu’s employment
on April 27, 2019. After the police received a Crime Stoppers tip from a Braum’s employee, an
investigation began, and Beaulieu was ultimately convicted of sexual assault of a child and online
solicitation of a minor for his offenses against Mackenzie.
Mackenzie and her parents, John and Leslie, filed suit against Braum’s, Behan, and Davis, 4
asserting causes of action for assisting and participating; negligent hiring, supervision, training,
and retention; negligent failure to warn; intentional infliction of emotional distress; and exemplary
damages for alleged malice and gross negligence. According to the Macons, Braum’s job
application form and store operations manual both require job applicants to complete a criminal
history authorization form authorizing Braum’s to conduct a background check. The Macons also
2
Beaulieu was convicted of indecency with a child in 2018.
3
The arresting officer testified by deposition that when he arrested Beaulieu, he told him the reason for the
arrest while a female manager stood two or three feet away. At his deposition, Davis testified that he was the highest-
ranking manager present during the arrest, and he called Behan to inform her and told her the officer did not state the
reason for the arrest. Behan testified by deposition that when she later asked Beaulieu why he was arrested, Beaulieu
told her that he was arrested for “brass knuckles.” Both Behan and Davis averred in declarations that they were
unaware of Beaulieu’s status as a registered sex offender until Mackenzie’s parents subsequently contacted Braum’s.
4
Appellants initially sued Beaulieu, but later nonsuited him, and he is not a party to this appeal.
2
pleaded that the cost of performing a criminal background check on job applicants is minimal, and
the Sex Offender Registry on the Texas Department of Public Safety’s website is both publicly
accessible and free of charge. In addition, the Macons contended that Braum’s failed to establish
and reinforce policies, procedures, and training regarding safely employing minors and screening
prospective employees, and they asserted that Beaulieu’s application for employment “included
apparent false information, multiple red flags, and factual inconsistencies that should have notified
and alerted Braum’s, Davis, and Behan, at minimum, of issues to be investigated[.]” The Macons
further alleged that Braum’s gave Beaulieu the opportunity to “identify, groom, and victimize
minor females[,]” failed to inform them of Beaulieu’s status as a registered sex offender, and failed
to follow and enforce its own policies.
Appellees jointly filed a hybrid motion for summary judgment as to John’s claims and
Leslie’s claims, asserting, among other things, that employers do not owe a duty to parents to
protect a minor employee from “off-duty, off-property” conduct. Appellees also argued that they
did not owe John and Leslie a duty to conduct a background check of Beaulieu and contended that
an employer need only investigate an employee to determine if the employee is fit to perform the
job duties he is hired to perform. In response, John and Leslie contended, among other things, that
Appellees owed them a duty “to protect or warn them that their daughter was working alongside a
convicted child predator” because the hiring of an employee with a history of sexually assaulting
minors was not “a hazard that could be easily observed by the . . . underaged co-workers and their
parents.” According to John and Leslie, the duty to protect children extends to their parents and
does not require a special relationship. Additionally, John and Leslie contended that because
hiring minors is part of Braum’s business plan, Braum’s owed them a duty “to exercise reasonable
care in selecting employees to work alongside children to prevent an unreasonable risk of harm to
its minor employees and their parents, such as on-site exposure to sexual predators of children,
even when the harm caused by such exposure occurs off-duty and off-premises.”
Behan and Davis filed another hybrid motion for summary judgment as to the Macons’
claims, in which they asserted that because they acted within the course and scope of their
employment with Braum’s, they could not be held individually liable as to any of the Macons’
claims. 5 Specifically, Behan and Davis contended that, as agents of Braum’s, they are not
5
Behan and Davis averred in their declarations that during all of the events alleged in the Macons’ petition,
they acted within the course and scope of their employment.
3
personally liable for negligence committed during the course and scope of their employment unless
they owe an independent duty of reasonable care apart from the duty Braum’s owed. In response,
the Macons argued that Behan and Davis owed legal duties to them independent of the duties owed
by Braum’s. According to the Macons, Behan and Davis owed Mackenzie “a duty to act
reasonably” when hiring, training, supervising, and retaining employees to avoid an unreasonable
risk of harm, “which would include a duty to warn their minor employees that a convicted child
predator had been hired to work alongside them.” The Macons also argued that Texas’s strong
public policy of protecting children supports the imposition of a duty on Behan and Davis.
Appellees jointly filed another hybrid motion for summary judgment as to each of
Mackenzie’s claims, in which they contended, among other things, that they did not owe a legal
duty to Mackenzie. In response, Mackenzie argued that Braum’s owed her a duty “to protect or
warn her against working alongside a convicted child predator[.]” Specifically, Mackenzie
asserted that Appellees owed her a duty because she was a minor, minors constitute a significant
portion of the workforce of Braum’s, and public policy favors protecting minors.
The trial judge signed an order granting each of the motions for summary judgment, in
which he rendered judgment in favor of Appellees on all of the Macons’ causes of action and
ordered that the Macons take nothing. This appeal followed.
SUMMARY JUDGMENT
In their sole appellate issue, the Macons contend the trial court erred by granting Appellees’
motions for summary judgment. The Macons state in their brief that they do not challenge the trial
court’s granting of summary judgment as to their claims for assisting and participating, intentional
infliction of emotional distress, and exemplary damages based on malice. Thus, the Macons’ only
complaints on appeal concern the granting of summary judgment as to their claims for negligent
failure to warn; negligent hiring, training, and supervision; and gross negligence.
Standards of Review and Applicable Law
We review both no-evidence and traditional motions for summary judgment de novo, and
we “examine the entire record in the light most favorable to the nonmovant, indulging every
reasonable inference and resolving any doubts against the motion”. City of Keller v. Wilson, 168
S.W.3d 802, 823 (Tex.2005); see Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289
S.W.3d 844, 848 (Tex. 2009). We are not required to ascertain the credibility of affiants or to
4
determine the weight of evidence in the affidavits, depositions, exhibits, and other summary
judgment proof. See Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952); Palestine Herald-
Press Co. v. Zimmer, 257 S.W.3d 504, 508 (Tex. App.—Tyler 2008, pet. denied). The movant for
traditional summary judgment has the burden of demonstrating that there is no genuine issue of
material fact and that he is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). If the
movant establishes a right to summary judgment, the nonmovant has the burden to respond to the
motion and present any issues that would preclude summary judgment. Rhone-Poulenc, Inc. v.
Steel, 997 S.W.2d 217, 222-23 (Tex. 1999); City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678-79 (Tex. 1979). A defendant who conclusively negates at least one essential
element of the nonmovant’s cause of action is entitled to summary judgment as to that cause of
action. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); White v. Smith, 591
S.W.3d 198, 200 (Tex. App.—Tyler 2019, no pet.). When, as here, the trial court does not specify
the grounds on which it granted summary judgment, we will affirm if any of the theories advanced
have merit. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Carr v. Brasher, 776
S.W.2d 567, 569 (Tex. 1989).
Generally, when a party moves for both a traditional and a no-evidence summary judgment,
we first review the trial court’s summary judgment under the no-evidence standard of Rule 166a(i),
and if a no-evidence summary judgment was properly granted, we do not reach arguments
regarding the traditional motion for summary judgment. See Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 600 (Tex. 2004). “However, this rule is not absolute.” Neurodiagnostic Tex., L.L.C.
v. Pierce, 506 S.W.3d 153, 163 (Tex. App.—Tyler 2016, no pet.) (citing Dunn v. Clairmont Tyler,
LP, 271 S.W.3d 867, 870 (Tex. App.—Tyler 2008, no pet.)). In the instant case, because the issue
of legal duty is dispositive, and said issue fits more appropriately within the framework of a
traditional summary judgment analysis, we will review the propriety of granting the motions for
summary judgment on traditional grounds first. See id.Legal Duty
A plaintiff asserting a cause of action for negligence must establish three elements: (1) the
defendant owed a legal duty to the plaintiff, (2) the defendant breached that duty, and (3) the
defendant’s breach of duty proximately caused the plaintiff’s damages. Elephant Ins. Co. v.
Kenyon, 644 S.W.3d 137, 144 (Tex. 2022); Urena, 162 S.W.3d at 550; Greater Houston Transp.
Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). The existence of a legal duty of care is also an
5
element of a claim for gross negligence. AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289, 298-
99 (Tex. 2020); City of Waco v. Kirwan, 298 S.W.3d 618, 623 (Tex. 2009).
A duty is a legal obligation that requires the defendant to conform to a certain standard of
conduct to protect others against foreseeable risks. Midwest Employers Cas. Co. v. Harpole, 293
S.W.3d 770, 776 (Tex. App.—San Antonio 2009, no pet.). Whether a duty exists is a threshold
inquiry, and a party who has no legal duty cannot be held liable for negligence. Kroger Co. v.
Elwood, 197 S.W.3d 793, 794 (Tex. 2006). When the facts giving rise to a duty are undisputed,
the determination of whether a duty exists is a question of law, which is determined based on the
facts surrounding the occurrence. Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 504 (Tex.
2017); Tri v. J.T.T., 162 S.W.3d 552, 563 (Tex. 2005); Walker v. Harris, 924 S.W.2d 375, 377
(Tex. 1996).
Texas law currently does not impose a general duty to control others; however, a special
relationship, such as that between employer and employee, may give rise to certain duties. Centeq
v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Phillips, 801 S.W.2d at 525; Otis Eng’g Corp. v.
Clark, 668 S.W.2d 307, 309 (Tex. 1983); Douglas v. Hardy, 600 S.W.3d 358, 367 (Tex. App.—
Tyler 2019, no pet.). Although an employer is not an insurer of its employees’ safety at work, an
employer has a duty to use ordinary care in providing a safe workplace. Leitch v. Hornsby, 935
S.W.2d 114, 117 (Tex. 1996). This duty is non-delegable, and it encompasses obligations to
provide rules and regulations for employees’ safety, to furnish safe machinery and
instrumentalities, and to select careful and competent fellow servants. Burk Royalty Co. v. Walls,
616 S.W.2d 911, 923-24 (Tex. 1981). “An employer owes a duty to its other employees and to
the general public to ascertain the qualifications and competence of the employees it hires,
especially when the employees are engaged in occupations that require skill or experience and that
could be hazardous to the safety of others.” Wise v. Complete Staffing Servs., Inc., 56 S.W.3d
900, 902 (Tex. App.—Texarkana 2001, no pet.); see also Dangerfield v. Ormsby, 264 S.W.3d
904, 912 (Tex. App.—Fort Worth 2008, no pet.). This rule against negligent hiring “is aimed, not
at avoiding a general propensity for bad acts, but to protect the public and fellow employees from
workers who are unsafe or dangerous on the job.” Wise, 56 S.W.2d at 903. The employee’s
alleged incompetency must be job related. Id. Employers generally have no duty to conduct a
criminal background check of an employee unless the employee’s criminal history is related to the
6
duties of his job. Id. (citing Guidry v. Nat’l Freight, Inc., 944 S.W.2d 807, 811 (Tex. App.—
Austin 1997, no writ)).
“[T]he Texas Supreme Court has ‘never expressly set out what duty an employer has in
hiring employees[.]’” Douglas, 600 S.W.3d at 367 (quoting Wansey v. Hole, 379 S.W.3d 246,
247 (Tex. 2012)). “An employer may be liable to a third party if it hires, retains, or supervises an
employee whom it either knows or should have known is not competent or fit for the job and whose
incompetence or unfitness creates an unreasonable risk of harm to others because of the
employee’s job-related duties.” Dole v. YUM! Brands, Inc., 639 S.W.3d 214, 226 (Tex. App.—
Houston [1st Dist.] 2021, no pet.); see also Mindi M. v. Flagship Hotel, Ltd., 439 S.W.3d 551,
561 (Tex. App.—Houston [14th Dist.] 2014, pet. granted, judgm’t vacated w.r.m.) (holding that
the scope of an employer’s inquiry in screening employees “will turn on the risks associated with
the employee’s job-related duties”). Employers generally do not owe a duty to third parties for
off-duty employees’ tortious activities that occur away from the work site, but an employer may
be liable for torts that an off-duty employee commits on the employer’s premises or with its
chattels. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 403, 404-05 (Tex. 2009).
However, employers have a duty to prevent injuries to others if an employee’s job duties will allow
him special access to a particularly vulnerable group. YUM! Brands, 639 S.W.3d at 227; NCED
Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 33 (Tex. App.—El Paso 2006, no pet.); Wise, 56
S.W.3d at 904-05; Guidry, 944 S.W.2d at 810; see also Massage Heights Franchising, LLC v.
Hagman, __ S.W.3d __, No.14-22-00160-CV, 2023 WL 7029384, at *5 (Tex. App.—Houston
[14th Dist.] Oct. 26, 2023, no pet. h.) (not yet released for publication).
When determining whether a particular defendant owes a legal duty, courts weigh the risk
involved, the foreseeability of the risk, and the likelihood of injury against the social utility of the
actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences
of placing the burden on the defendant. Pagayon, 536 S.W.3d at 503-04; Golden Spread Council,
Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 290-91 (Tex. 1996); Phillips, 801
S.W.2d at 525; Douglas, 600 S.W.3d at 368. These factors are often referred to as the Phillips
factors. Houston Area Safety Council, Inc. v. Mendez, 671 S.W.3d 580, 583 (Tex. 2023).
Foreseeability of the risk is the most important factor to consider, but foreseeability alone does not
create a duty. Kirwan, 298 S.W.3d at 624. Striking the correct balance of the various Phillips
factors is difficult “because of the myriad circumstances that can arise.” Douglas, 600 S.W.3d at
7
368 (quoting Pagayon, 536 S.W.3d at 504). The Texas Supreme Court has noted that “the courts
of appeals have often held employers to very general duties, but they have not weighed the factors
that determine whether a duty exists, and what it is.” Pagayon, 536 S.W.3d at 505-06 (footnote
omitted). “These . . . are matters of law to be weighed and determined by the court before a duty
is applied.” Id. at 506. “It is not enough to simply require employers, or others, to exercise
ordinary care in all circumstances. Texas law requires the court to be more specific, to balance the
relevant factors in determining the existence, scope, and elements of legal duties.” Id.
Pursuant to the doctrine of respondeat superior, an employer is vicariously liable for an
employee’s negligent conduct that occurred while the employee was acting in the course and scope
of his employment; that is, when an employee is acting within the scope of his general authority,
in furtherance of the employer’s business, and to accomplish a task for which he was hired.
Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 131 (Tex. 2018). An employee is within
the course and scope of his employment when he acts within the scope of his general authority, in
furtherance of the employer’s business and for the accomplishment of the object for which he was
hired. Id. An employee acting within the course and scope of his employment is not individually
liable for negligence unless the employee owes an independent duty to the plaintiff. Tri, 162
S.W.3d at 562-63; Leitch, 935 S.W.2d at 117. In other words, individual liability cannot be
imposed on employees when the employer and its employees allegedly committed identical
negligent acts or omissions. In re Butt, 495 S.W.3d 455, 466-67 (Tex. App.—Corpus Christi
2016, orig. proceeding); see also Tri, 162 S.W.3d at 562-63. Rather, only the employer is liable
for the employees’ alleged negligence under those circumstances. Id.
Analysis
To recover on their claims for negligence and gross negligence, the Macons bore the burden
of proving that Braum’s, Behan, and Davis each owed them a legal duty. See Kenyon, 644 S.W.3d
at 144; Arredondo, 612 S.W.3d at 298-99; Kirwan, 298 S.W.3d at 623; Urena, 162 S.W.3d at 550;
Phillips, 801 S.W.2d at 525; see also Dangerfield, 264 S.W.3d at 912 (holding that “[n]egligent
hiring, retention, and supervision claims are all simple negligence causes of action”). Each of the
motions for summary judgment asserted that no duty existed.
As Mackenzie’s employer, Braum’s owed her a duty to use ordinary care in providing a
safe workplace. See Leitch, 935 S.W.2d at 117. Braum’s also owed a duty to Mackenzie, as well
as to the general public, to ascertain the qualifications and competence of its employees to ensure
8
that its employees are fit to safely perform their jobs. See Wise, 56 S.W.3d at 902; see also
Dangerfield, 264 S.W.3d at 912. It is undisputed that Braum’s hired Beaulieu as a salesclerk, so
Beaulieu’s job duties included such tasks as taking customers’ orders, preparing food, serving as
a cashier, cleaning, and stocking. It is also undisputed that Beaulieu’s sexual activity with
Mackenzie did not occur at Braum’s and did not involve chattels owned by Braum’s. Nothing
about the salesclerk job for which Braum’s hired Beaulieu required skill or experience, and
Beaulieu’s sexual assaults of Mackenzie while off duty and away from the Braum’s store were not
the result of any job-related incompetency; rather, the injuries to Mackenzie resulted from
Beaulieu’s criminal acts. See Wise, 56 S.W.3d at 903; see also Dangerfield, 264 S.W.3d at 912.
Furthermore, we conclude that because Beaulieu’s criminal history was not related to the duties of
his job, Braum’s did not have a duty to conduct a criminal background check or check the sex
offender registry when hiring him. See Wise, 56 S.W.3d at 903. Braum’s did not employ John
and Leslie; therefore, no special relationship existed between them, and Braum’s did not owe a
duty to them beyond the duty it owed the general public, as set forth above. See id. at 902; see
also Dangerfield, 264 S.W.3d at 912.
Appellants argue that Texas’s strong public policy of protecting minors favors finding that
Appellees owe a heightened duty to Mackenzie, as well as to John and Leslie. Appellants point to
several cases in which courts concluded that a heightened duty existed. We will discuss each of
these cases in turn. In Golden Spread, the mother of a minor who was molested by his scoutmaster
sued Boy Scouts of America (BSA) and Golden Spread Council of the Boy Scouts of America
(GSC), for negligent screening, training, supervision, and retention. Golden Spread, 926 S.W.2d
at 288-89. After balancing the risk, foreseeability, and likelihood of injury against the social utility
of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the
consequences of placing the burden on the defendant, the Texas Supreme Court noted the strong
policy of protecting children from abuse and concluded that “[o]n balance, all of these factors favor
the imposition of a duty[.]” Id. at 291. In addition, the Court concluded that GSC owed a duty to
the minor, as well as to his parents, because the organization brought the minor into contact with
a person that the organization knew or should have known was peculiarly likely to commit
intentional misconduct, under circumstances that afford a peculiar opportunity or temptation for
such misconduct. Id.
9
In Read v. Scott Fetzer Company, a customer who was sexually assaulted in her home by
a door-to-door vacuum cleaner salesman sued the manufacturer and distributor. Read v. Scott
Fetzer Co., 990 S.W.2d 732, 733 (Tex. 1998). The Texas Supreme Court held that the vacuum
cleaner manufacturer, which retained control over vacuum cleaner sales by requiring that its
products be sold exclusively via in-home demonstrations, owed a duty to customers “to exercise
that control reasonably.” Id. at 735-36. Importantly, the Read court noted that both Golden Spread
and Phillips involved a straightforward common-law duty analysis, and distinguished those cases
by clarifying that its holding “is premised on the duty emanating from [manufacturer]’s retained
control over the details of the work.” Id. at 736. In Porter v. Nemir, a client of an outpatient
chemical dependency program asserted claims for negligence and gross negligence after a
counselor allegedly sexually assaulted her off the premises and after hours. Porter v. Nemir, 900
S.W.2d 376, 379-80, 385-86 (Tex. App.—Austin 1995, no writ). The court stated that the
plaintiff’s injury was foreseeable given that defendants knew that the counselor was “an
incompetent counselor” because the defendants knew that he engaged in a dating relationship with
a client before the incident with the plaintiff occurred, and the counselor cultivated clients’ trust
through his role as their counselor. Id. at 386. The court concluded that the defendants owed the
plaintiff “a duty to use reasonable care in the hiring and retention of competent, sexually-
appropriate counselors.” Id. After noting that several Texas cases held that “a higher obligation
is owed to certain groups because of their vulnerabilities[,]” the Porter court concluded that the
“defendants had a heightened obligation to hire and retain competent counselors because their
program treated psychologically fragile clientele.” Id.
As support for their argument that Appellees owe a heightened duty, Appellants also cite
Deerings West Nursing Center v. Scott. In Scott, the plaintiff, an elderly woman who was visiting
a patient at the nursing home, filed a lawsuit asserting claims for negligence and gross negligence
after an unlicensed “nurse employee” slapped her and pinned her to the floor. Deerings W.
Nursing Ctr. v. Scott, 787 S.W.2d 494, 495 (Tex. App.—El Paso 1990, writ denied). The Scott
court analogized negligent hiring to negligent entrustment by an automobile owner, noted that “[i]t
is predictable that elderly patients will be visited by elderly friends and family[,]” and concluded
that “[t]he nursing home had a duty to exercise reasonable care in the selection of its medical staff.”
Id. at 495-96. The Scott court also concluded that “it is reasonable to anticipate that an injury
would result as a natural and probable consequence of that negligent hiring.” Id. at 496. In
10
addition, Appellants cite C.W. v. Zirus, in which the plaintiffs and their legal representatives
asserted claims stemming from their molestation by a camp counselor. C.W. v. Zirus, No. SA-10-
CV-1044-XR, 2012 WL 3776978, at *1 (W.D. Tex. Aug. 29, 2012). The Zirus court concluded
that the same factors that weighed in favor of imposing a duty in Golden Spread likewise weigh
in favor of imposing a duty because the defendant “was aware of the general risk of sexual abuse”
associated with its program, in which young adults hired as camp counselors would be in close
contact with children. Id. at *4.
We conclude that Golden Spread, Read, Porter, Scott, and Zirus are distinguishable. Each
of these cases involved both (1) a vulnerable group and (2) circumstances of employment that
provided a peculiar opportunity for an employee to commit intentional misconduct. See Read, 990
S.W.2d at 735-36 (holding that vacuum cleaner manufacturer who retained control over details of
the work owed duty to customers when it required that products be sold exclusively via in-home
demonstrations, i.e. where customers might be alone with salesman and therefore vulnerable);
Golden Spread, 926 S.W.2d at 288-89 (holding that scouting organization owed duty to minor and
his parents because organization knew or should have known that circumstances of working with
children as their mentor would provide peculiar opportunity for employee to engage in intentional
misconduct); Porter, 900 S.W.2d at 386 (holding that employer of drug counselor owed higher
duty because counselor’s job was position of trust and employer provided its counselors access to
psychologically fragile clientele); Scott, 787 S.W.2d at 495-96 (holding that nursing home owed
duty to exercise reasonable care in selecting nursing staff due to nurses’ access to elderly patients
and their elderly friends and families); Zirus, 2012 WL 3776978, at *1 (holding that camp
counselor’s employer owed duty to child plaintiffs and legal representatives because camp
counselors would be in close contact with children and employer knew of risk of sexual abuse).
Appellants correctly cite Guidry for the proposition that liability will be imposed when an
employer brings an employee, whom it knows or should know is particularly likely to commit
intentional misconduct, into contact with a vulnerable person, under circumstances that afford a
peculiar opportunity or temptation for such misconduct. However, Appellants ignore the Guidry
court’s analysis and ruling. In Guidry, a long-haul truck driver with a history of sexual misconduct
stopped for a break. Guidry, 944 S.W.2d at 808-09. The driver encountered Guidry and raped her,
and she sued the driver’s employer, National Freight (National), asserting causes of action for
negligent hiring, supervision, and retention. Id at 809. National filed a motion for summary
11
judgment, in which it argued that it owed no duty to Guidry. Id. The Guidry court acknowledged
that a heightened duty may exist as to an employer who brings a vulnerable person into contact
with its employee when the employer knows or should know that the employee is particularly
likely to commit intentional misconduct “under circumstances which afford a peculiar opportunity
or temptation for such misconduct.” Id. at 810. The Court discussed Read, Golden Spread,
Porter, Scott, and Deerings, and explained that the heightened duty imposed in those cases was
predicated upon the employer’s placement of the tortfeasor “into a special relationship of trust with
a vulnerable group[.]” Id. The Guidry court also considered the Phillips factors and concluded
that (1) National could not foresee the risk that a driver would commit sexual assault, (2) National
operates a lawful business that performs a needed service, (3) imposing a duty to perform a
nationwide criminal background check on all of its current and prospective drivers would create a
significant administrative burden for National, and (4) National’s failure to follow its own hiring
guidelines did not create a duty. Id. at 811. The Court therefore concluded that no duty existed.
Id. at 811-12.
We conclude that the facts of the instant case are most like those of Guidry. As the Guidry
court observed, in Read, Golden Spread, Porter, Scott, and Zirus, the heightened duty in those
cases emanated from the employer’s placing of the tortfeasor employee into a special relationship
of trust with a vulnerable group under circumstances that afforded a peculiar opportunity or
temptation for intentional misconduct. Id. at 810. As a minor, Mackenzie was unquestionably a
member of a vulnerable group. However, unlike Golden Spread, Porter, Scott, Read, and Zirus,
nothing about the circumstances of Beaulieu’s employment as a salesclerk in a Braum’s restaurant
and market, which had an open layout, security cameras, and internal doors without locks,
provided Beaulieu a peculiar opportunity to commit intentional misconduct. The undisputed
summary judgment evidence established that an adult manager or supervisor was always present
during shifts worked by part-time employees, such as Mackenzie. Beaulieu did not supervise
Mackenzie, and his employment with Braum’s did not place him in a special position of trust,
mentorship, or counseling with respect to her.
Having concluded that the cases upon which the Macons relied do not support imposition
of a duty, we now apply the Phillips factors, which require us to weigh the risk involved, the
foreseeability of the risk, and the likelihood of injury against the social utility of the actor’s
conduct, the magnitude of the burden of guarding against the injury, and the consequences of
12
placing the burden on the defendant. Pagayon, 536 S.W.3d at 503-04; Golden Spread, 926
S.W.2d at 290-91; Phillips, 801 S.W.2d at 525; Douglas, 600 S.W.3d at 368. Public policy
undoubtedly favors protecting minors, who are vulnerable to abuse due to their age, from sexual
misconduct; however, we conclude that the risk that employment as a salesclerk at a restaurant
and market would provide a peculiar opportunity for intentional sexual misconduct against minors
is low, as is the likelihood of such an injury. See Pagayon, 536 S.W.3d at 503-04; Golden Spread,
926 S.W.2d at 290-91; Phillips, 801 S.W.2d at 525; Douglas, 600 S.W.3d at 368. Although, as a
general proposition, it is foreseeable that a registered sex offender may reoffend, we conclude that
under the facts presented in the instant case, Braum’s could not foresee Beaulieu’s off-duty, off-
premises statutory rape of Mackenzie. See Timberwalk Apartments Partners, Inc. v. Cain, 972
S.W.2d 749, 756 (Tex. 1998) (holding that no legal duty to prevent unforeseeable criminal acts
exists); see also Pagayon, 536 S.W.3d at 503-04; Golden Spread, 926 S.W.2d at 290-91; Guidry,
944 S.W.2d at 811 (holding that trucking company could not foresee that driver would stop and
rape plaintiff); Phillips, 801 S.W.2d at 525; Douglas, 600 S.W.3d at 368.
Braum’s operates a lawful business which serves food and provides employment, so it
possesses some social utility. See Pagayon, 536 S.W.3d at 503-04; Golden Spread, 926 S.W.2d
at 290-91; Phillips, 801 S.W.2d at 525; Douglas, 600 S.W.3d at 368. Imposing a duty to check the
sex offender registry or to conduct a criminal background check on all employees would create a
significant administrative burden for Braum’s, and the scope of such a duty would be vast. See
Guidry, 944 S.W.2d at 811. Such a duty could conceivably encompass an obligation to (1) check
the sex offender registries of multiple states, (2) check multiple sources, and (3) perform multiple
background checks, not only when hiring, but on an ongoing basis after hiring an employee. See
id. In addition, assuming without deciding that Braum’s failed to enforce its own policies, an
employer’s internal policies or procedures, standing alone, do not create a negligence duty when
none would otherwise exist. See Mata v. Argos USA LLC, No. 06-21-00089-CV, 2022 WL
1193671, at *8 (Tex. App.—Texarkana Apr. 22, 2022, no pet.) (mem. op.) (citing Entex v.
Gonzalez, 94 S.W.3d 1, 10 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)); Cleveland Reg’l
Med. Ctr., L.P. v. Celtic Properties, L.C., 323 S.W.3d 322, 351-52 (Tex. App.—Beaumont 2010,
pet. denied). After weighing the Phillips factors, we conclude that placing such a significant duty
on Braum’s would render Braum’s an insurer of its employees’ safety, both on and off its premises,
13
and would impose too great a burden on the employment relationship. See Pagayon, 536 S.W.3d
at 507-08; Douglas, 600 S.W.3d at 371.
With respect to Behan and Davis, it is undisputed that they were acting within the course
and scope of their employment with Braum’s. As explained in detail above, none of the Appellees
owed a heightened duty to Mackenzie or her parents because the circumstances of Beaulieu’s
employment at Braum’s did not provide him a peculiar opportunity to commit intentional
misconduct against her. Because such an alleged heightened duty was the sole “independent duty”
that the Macons contend Behan and Davis owed to them, and the Macons asserted identical
negligent acts or omissions against Braum’s, the trial court did not err by granting summary
judgment in favor of Behan and Davis See In re Butt, 495 S.W.3d at 466-67; see also Tri, 162
S.W.3d at 562-63.
For all the above reasons, we conclude that Appellees conclusively negated the existence
of a duty to Mackenzie, John, and Leslie. See Fernandez, 315 S.W.3d at 508; White, 591 S.W.3d
at 200. Because duty is an essential element of the Macons’ causes of action for negligence as
well as gross negligence, the trial court properly granted summary judgment in favor of Appellees.
See Kenyon, 644 S.W.3d at 144; Arredondo, 612 S.W.3d at 298-99; Kirwan, 298 S.W.3d at 623;
Urena, 162 S.W.3d at 550; Phillips, 801 S.W.2d at 525; see also TEX. R. CIV. P. 166a(c).
Accordingly, we overrule the Macons’ sole issue.
DISPOSITION
Having overruled the Macons’ sole issue, we affirm the trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered December 14, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
14
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 14, 2023
NO. 12-23-00083-CV
JOHN MACON, LESLIE MACON AND MACKENZIE MACON,
Appellants
V.
BRAUM’S, INC., DEMETRIA ANN BEHAN AND EMMANUEL DAVIS,
Appellees
Appeal from the 3rd District Court
of Henderson County, Texas (Tr.Ct.No. CV19-0444-3)
THIS CAUSE came to be heard on the oral arguments, appellate record and
briefs filed herein, and the same being considered, it is the opinion of this court that there was no
error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellants, John Macon, Leslie Macon, and Mackenzie Macon, for which execution
may issue, and that this decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.