Gerardo Solis, Osmin Turcios, Chipotle Mexican Grill of Colorado, LLC, and Chipotle Mexican Grill, Inc. v. S. V.Z., Individually and as Next Friend of A.Z., Her Minor Child

Reversed and Rendered in Part, Reversed and Remanded in Part, and Opinion
filed November 20, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00162-CV
GERARDO SOLIS, OSMIN TURCIOS, CHIPOTLE MEXICAN GRILL OF
COLORADO, LLC, AND CHIPOTLE MEXICAN GRILL, INC., Appellants
V.
S.V.Z., INDIVIDUALLY AND AS NEXT FRIEND OF A.Z., HER MINOR
CHILD, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2014-69341
OPINION
This civil case arises out of the commission of multiple criminal acts, the most
serious of which involve the repeated sexual assault of a 16-year-old girl by her 26-
year-old supervisor. The assaults against the girl were not forcible—she “consented”
to the sexual intercourse—but because the girl had not yet attained the legal age of
consent, each act of intercourse constituted a statutory rape. See Tex. Penal Code
§ 22.011(a)(2); In re B.W., 313 S.W.3d 818, 822 (Tex. 2010) (referring to this penal
statute as a “statutory rape statute”).
The girl’s mother filed suit after learning of the illicit sexual relationship. She
asserted three common law claims: the first was against the supervisor for sexual
assault; the second was against the supervisor’s manager for aiding and abetting in
the sexual assaults; and the third was against the restaurant where they worked for
sexual assault as well, under a theory that the restaurant was directly liable for the
conduct of its vice principal. In addition to these claims, the girl’s mother pursued a
statutory claim for sexual harassment against the restaurant. The jury returned a
verdict in favor of the girl on all of these claims, and the trial court rendered
judgment based on the jury’s award.
The main issue on appeal concerns the legal effect of the girl’s minority.
Because the girl was underage, the trial court ruled that her conduct was wholly
irrelevant to the jury’s determination of liability and actual damages. The trial court
accordingly precluded the defense from eliciting testimony about why the girl had
consented to a sexual relationship with her supervisor. The trial court also issued a
charge instruction stating that the girl’s conduct could not be considered for any
purpose.
We conclude that the trial court’s charge instruction was erroneous and that
the jury should have been allowed to hear and consider evidence of the girl’s
conduct, as that evidence was relevant to the determination of actual damages.
Because the erroneous instruction probably led to the rendition of an improper
judgment on the common law claim of sexual assault against the supervisor and on
the statutory claim of sexual harassment against the restaurant, we conclude that
those claims must be remanded for a new trial.
2
As for the remaining common law claims, we conclude that the sexual assault
claim against the restaurant is preempted by statute, and that the aiding and abetting
claim against the manager must fail because it does not exist under our common law
and because no reasons have been given for its recognition in this case. Accordingly,
we render take-nothing judgments as to those claims.
BACKGROUND
After she turned sixteen, A.Z. began working as an entry-level crew member
at Chipotle Mexican Grill, the national chain of fast-casual restaurants. Gerardo
Solis worked alongside her, also as a crew member. He was married, twenty-five
years old, and soon to turn twenty-six.
The first interaction that Solis had with A.Z. occurred after he bumped into
her breasts. Solis apologized for the incident, but he used the opportunity to crack
jokes and learn more about A.Z. He asked about her favorite restaurant, and he
invited her to dine out with him. A.Z. declined the offer, but Solis persisted.
Over the course of more than a month, Solis pleaded with A.Z. nearly fifteen
times to go out with him. A.Z. eventually acquiesced. They saw a movie first, and
afterwards they ate out. They had two or three more dates, and then Solis kissed A.Z.
Soon after that, he began touching her breasts.
At the beginning of their dating relationship, Solis was still just a crew
member, but then Chipotle promoted him, first to kitchen manager and then again to
service manager. With these more supervisory roles, Solis had the authority to tell
A.Z. to come in early if she were needed, to go home early if she were not needed,
and what to do when she was on the clock.
Following Solis’s promotions, the physical contacts gradually escalated. Solis
digitally penetrated A.Z.’s vagina and anus. He performed oral sex on her, which
3
she reciprocated. Then he had sexual intercourse with her. Sometimes they would
sneak out to the dumpster area behind the restaurant to have sex. Other times they
would have sex in a park. In all, they had sex about forty times, and it was always
unprotected.
A.Z. did not reveal the sexual relationship to her mother, S.V.Z. (“Mother”),
though Mother nearly discovered the relationship herself. Mother went to the
restaurant one evening to pick up A.Z., believing that A.Z. had worked a full shift
that day, when in fact A.Z. had spent the day elsewhere with Solis. Mother became
distressed when she could not find her daughter, and she asked to speak with the
general manager, Osmin Turcios.
Mother told Turcios that she was prepared to call the police to report that her
daughter was missing. Turcios responded that there was no need to call the police
because a female coworker had already taken A.Z. home. That statement was untrue
because Turcios knew that A.Z. was currently with Solis.
After stepping away to a private area, Turcios called Solis and advised him to
take A.Z. home because Mother was actively searching for her. A.Z. overheard this
conversation because Solis had placed the call on speaker. Heeding Turcios’s advice,
Solis dropped A.Z. off at her home, before Mother could return home herself. Once
home, A.Z. did not reveal to Mother where she had been.
A.Z. continued to work at Chipotle for the next two or three weeks, and then
she left the country for a planned vacation. Mother did not accompany A.Z. on the
vacation. While A.Z. was abroad, Mother learned from one of A.Z.’s coworkers
about A.Z.’s relationship with Solis. Mother returned to the restaurant and accused
Turcios of covering up the relationship. Mother again said that she intended to call
the police, but she never did. She filed this civil lawsuit instead.
4
A.Z. was, in her own words, “mad” when she learned that Mother had filed
the lawsuit, but she never returned to Chipotle after coming home from her vacation.
As she explained: “I felt like that was a hostile place to work at. I didn’t feel safe.”
Chipotle conducted an internal investigation after Mother filed the lawsuit.
Solis was terminated as a result of that investigation, though not because of his
sexual relationship with A.Z, which he denied having. Solis was terminated because
Chipotle determined that he had lied about the extent of his electronic
communications with A.Z.
Solis relocated to Mexico after his termination. He did not appear at the trial,
but the trial court allowed his discovery responses to be read into evidence. In those
responses, Solis invoked his Fifth Amendment privilege against self-incrimination.
A.Z. testified during the trial that Chipotle had a culture of harassment. She
said that Turcios and the other managers used security cameras to watch women and
comment on their bodies. One of these other managers repeatedly asked A.Z. for a
kiss in exchange for her paycheck. Solis also mentioned to her that Turcios talked
about wanting to have sex with her once she turned seventeen.
When the questioning turned to Solis, A.Z. denied having had romantic
feelings for him: “We didn’t have a relationship,” she testified. “He used me for
sex.” A.Z. explained that Solis promised her better work hours and a better schedule
in exchange for sex, and that she assented to his advances because she wanted to
keep her job: “I just felt like I had to [say yes to his advances]. I was pressured.”
A clinical psychologist likened A.Z. to a “rape victim.” The psychologist
testified that A.Z. endured “very traumatic, very degrading, dehumanizing events.”
The psychologist testified that A.Z. suffered from crying spells, fatigue,
sleeplessness, and anxiety, and that A.Z. experienced “intense feelings of
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helplessness . . . intense shame, intense guilt.” The psychologist also opined: “I have
to say, in 30 years of listening to graphic, very graphic cases of incest—violations
to people, [A.Z.’s case] was one of the worst, one of the very worst stories I have
ever heard.”
Not much evidence was admitted to counteract these characterizations. A.Z.
briefly acknowledged that she once thought she was “happy” when she was with
Solis. The psychologist similarly testified that A.Z. had “pursued” a relationship
with Solis, and that A.Z. once “thought she was in love.”
Defense counsel sought to expand on this limited testimony—specifically, by
showing that A.Z. had desired a relationship with Solis—but in a hearing conducted
outside the presence of the jury, the trial court ruled that such evidence would not be
admissible until the exemplary damages stage of the trial.
Defense counsel made an offer of proof. Counsel represented that if A.Z. had
been cross-examined about her mental state and the broader issue of her consent, the
testimony would have established that A.Z. believed that she was in a romantic
relationship with Solis; that aside from concealing that relationship from Mother,
A.Z. did not think that anything was wrong with her and Solis being together; that
A.Z. wanted Solis to divorce his wife; that A.Z. communicated with Solis even after
Mother filed the lawsuit; and that A.Z. saved photographs of her and Solis together
because the photographs reminded her of happier times.
Among other findings, the jury determined that Solis had sexually assaulted
A.Z., that Turcios had aided and abetted in the sexual assaults, and that Chipotle had
subjected A.Z. to sexual harassment. The jury also determined that A.Z. should
recover $2.29 million in actual damages for the sexual assaults, and more than $2.9
million in actual damages for the sexual harassment. Because this verdict was non-
unanimous, the trial never proceeded to the exemplary damages stage.
6
In response to a post-trial motion, which invoked the One Satisfaction Rule,
the trial court struck a large portion of the jury’s award. The trial court then rendered
a final judgment awarding A.Z. nearly $3 million in actual damages, plus attorney’s
fees.
All parties now appeal from that final judgment.
ANALYSIS
The parties have collectively raised nearly a dozen issues and cross-issues.
We organize those issues around the judgments against each defendant, addressing
only those issues necessary to disposition of the appeal.1 See Tex. R. App. P. 47.1.
I. The Judgment Against Solis
The trial court rendered judgment against Solis based solely on the common
law claim of sexual assault. We consider two issues regarding this claim.
We begin with Solis’s argument that we should render a take-nothing
judgment in his favor because the trial court submitted an immaterial question on
liability. See Nat. Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 201 (Tex. 2003)
(“When a party presents multiple grounds for reversal of a judgment on appeal,
appellate courts should first address issues that would require rendition.”). After
rejecting that argument, we then consider Solis’s alternative argument that we should
remand the case for a new trial because the trial court reversibly erred in the
submission of its charge instruction.
1
The issues we do not consider include the following: whether inflammatory statements
by A.Z.’s lawyer denied Solis a fair trial; whether the trial court improperly allowed certain
testimony by A.Z.’s clinical psychologist; whether the evidence is sufficient to support the award
of damages; whether the judgment improperly awarded prejudgment interest on future damages;
whether the trial court erroneously excluded certain text messages; whether a remittitur should be
suggested as to A.Z.’s claim of sexual harassment; and whether the trial court improperly applied
the One Satisfaction Rule.
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A. The trial court did not abuse its discretion in its submission of the
sexual assault question.
During the charge conference, A.Z. proposed a broad-form question that
asked whether Solis’s sexual assaults, if any, had proximately caused her damages,
if any.2 A.Z. also proposed that the phrase “sexual assault” should be defined by
tracking the elements of the criminal offense for sexual assault of a child. See Tex.
Penal Code § 22.011(a)(2); id. § 22.011(c)(1) (defining “child” as any person
younger than seventeen years of age).
Solis lodged two objections to A.Z.’s proposed question. First, he objected
that the broad-form submission assumed that he had committed the sexual assaults
(notwithstanding the “if any” language). Second, he objected that the proposed
question incorporated the elements of a criminal sexual assault instead of the
elements of a simple civil assault.
The trial court sustained Solis’s first objection but overruled his second
objection. The trial court then agreed to submit the sexual assault claim in granulated
form, beginning with a predicate question that asked whether Solis had sexually
assaulted A.Z., followed later by a separate question that asked whether the sexual
assaults had proximately caused A.Z.’s damages, if any. In material part, the
predicate question provided as follows:
Did Gerardo Solis intentionally or knowingly sexually assault [A.Z.]?
“Sexual assault” means that a person—
1. Intentionally or knowingly—
2
When this lawsuit began, A.Z. was still a minor, which explains why this case is styled
with S.V.Z. as the plaintiff and the next friend of A.Z. See Tex. R. Civ. P. 44 (providing that minors
may sue and be represented by next friends). A.Z. has since become an adult, and for ease of
reference, we identify her in this opinion as though she were the plaintiff, instead of Mother.
8
(A) causes the penetration of the anus or sexual organ of a
child by any means;
(B) causes the penetration of the mouth of a child by the
sexual organ of the actor; or
(C) causes the sexual organ of a child to contact or
penetrate the mouth, anus, [or] sexual organ of another
person, including the actor.
Solis now argues that the trial court reversibly erred by submitting the
predicate question with the criminal elements of a sexual assault. He contends that
the criminal elements were inappropriate because criminal offenses do not give rise
to private rights of action.
Contrary to Solis’s suggestions, a private right of action can arise out of the
commission of certain offenses, including the sexual assault of a child. Texas courts
have long recognized a common law right of recovery in such cases. See Robinson
v. Moore, 408 S.W.2d 582, 583–84 (Tex. Civ. App.—San Antonio 1966, no writ)
(holding that the trial court erred by dismissing a civil claim arising out of the
statutory rape of a child); Altman v. Eckermann, 132 S.W. 523, 523–24 (Tex. Civ.
App. 1910) (holding that the trial court erred by dismissing a civil claim arising out
of the forcible rape of a child). The legislature has also blessed these causes of action
by enacting statutes that recognize that the sexual assault of a child can result in civil
liability. See Tex. Civ. Prac. & Rem. Code § 16.0045(a)(1) (establishing a fifteen-
year statute of limitations for a personal-injury suit arising out of the sexual assault
of a child); id. § 61.0021(a)(2)(A) (providing that attachment is available in such
cases).
Solis argues next that even if there is a viable right of action against him, the
trial court abused its discretion by refusing to submit a liability question that tracked
the elements of a civil assault.
9
There are two essential elements to a civil assault: (1) the defendant
intentionally or knowingly caused physical contact with the plaintiff, and (2) the
defendant knew or reasonably should have believed that the plaintiff would regard
that contact as offensive or provocative. See Loaisiga v. Cerda, 379 S.W.3d 248,
256 (Tex. 2012).
These elements are appropriate when a civil claim for assault is based on the
unwanted sexual touching of an adult. See Waffle House, Inc. v. Williams, 313
S.W.3d 796, 803 (Tex. 2010) (holding that such facts give rise to a simple assault).
But the same cannot be said when the claim is based on the statutory rape of a
sixteen-year-old girl. The problem lies with the “offensive or provocative” element
and the related legislative judgments regarding minors and sex.
Our legislature has determined that minors under the age of seventeen lack
the maturity and capacity to engage in sexual relations. See In re E.N.C., 384 S.W.3d
796, 804 n.11 (Tex. 2012) (“In Texas, the age of consent is seventeen.”). This
determination is reflected in two of our criminal laws. The first law provides that a
person who has sex with a minor younger than fourteen is strictly liable for a sexual
assault, even if the minor assented in fact to the sexual relationship, and even if the
person did not know the age of the minor at the time of the offense. See Tex. Penal
Code § 22.021(a)(2)(B). The second law proscribes sexual relations with a minor
between the ages of fourteen and seventeen, although that law has two exceptions to
criminal liability. Id. § 22.011(a)(2). A defense is available under that law if the
sexual partner is the spouse of the minor or no more than three years older than the
minor. Id. § 22.011(e). Outside of those exceptions, sex with a minor between the
ages of fourteen and seventeen results in strict liability. See Fleming v. State, 455
S.W.3d 577, 581–82 (Tex. Crim. App. 2014). Together, these two laws manifest a
10
legislative judgment that any sexual contact with a minor under the age of seventeen
is offensive and provocative as a matter of law, unless an exception applies.
The evidence in this case conclusively established that Solis could not claim
an exception. He was married to someone other than A.Z., and he was roughly ten
years older than A.Z. Thus, for as long as A.Z. remained under the age of seventeen,
the law would not tolerate any sexual contacts that Solis had with her. Accordingly,
if a factfinder determined that those contacts actually occurred, there would be no
need to obtain an explicit finding that Solis knew or reasonably should have known
that the contacts would be regarded as offensive or provocative.
The trial court’s charge correctly applied the law on this point. The trial
court’s predicate question asked whether Solis sexually assaulted A.Z., and a
subsequent question asked whether those assaults proximately caused A.Z.’s
damages, which ensured that Solis was not strictly liable for civil damages. Because
the trial court did not abuse its discretion by refusing to submit a question that
tracked the elements of a simple civil assault, we conclude that the trial court’s
liability question is not immaterial and that Solis is not entitled to rendition of
judgment.
B. The trial court abused its discretion in the submission of the charge
instruction.
In addition to the liability question just discussed, A.Z. proposed the following
charge instruction during the charge conference: “Under Texas law 16-year-old
[A.Z.] was under the age of consent at all times during the events in question in this
case. Accordingly, in answering the following questions you shall not consider any
alleged or actual acts, conduct, behavior, cooperation or omissions of [A.Z.].”
Solis objected to the instruction, arguing that it prevented the jury from
considering A.Z.’s willing participation in the sexual relationship, which Solis
11
characterized as a mitigating circumstance for purposes of damages. The trial court
overruled the objection and submitted the instruction to the jury. Solis now argues
that the trial court reversibly erred and that the sexual assault claim should be
remanded for a new trial.
We begin our analysis by identifying the two types of consent that are
referenced in the instruction. The phrase “age of consent” refers to legal consent,
which is a term of art that recognizes the maturity and capacity of a person to engage
in sexual relations. See In re B.W., 313 S.W.3d at 820. Legal consent must be
distinguished from factual consent, which is just consent in its ordinary usage—i.e.,
“permission, willingness, voluntariness, agreement, acquiescence, or assent.” See
May v. State, 919 S.W.2d 422, 424 (Tex. Crim. App. 1996); see also Tex. Penal
Code § 1.07(a)(11) (defining “consent” as “assent in fact”). The phrase “acts,
conduct, behavior, cooperation or omissions of [A.Z.]” refers to this factual type of
consent.
Solis argues that the charge instruction was erroneous because it precluded
the consideration of A.Z.’s factual consent, which he contends is relevant to the
recovery of actual damages. That argument finds support in an analogous criminal
case out of Texas, which held that in a prosecution for statutory rape, evidence of
the minor’s factual consent would be relevant for purposes of mitigating the
defendant’s punishment. See Eaves v. State, 141 S.W.3d 686, 692–94 (Tex. App.—
Texarkana 2004, pet. ref’d) (holding that the trial court reversibly erred during the
punishment phase of trial by excluding evidence that the minor had desired a sexual
relationship with the defendant).
As for civil cases, no Texas court has spoken on this issue, but there are
authorities from other jurisdictions that hold that a minor’s factual consent is relevant
to the assessment of damages. See Doe v. Oberweis Dairy, 456 F.3d 704, 714 (7th
12
Cir. 2006) (“For completeness we add that although consent to sexual relations with
a coworker or supervisor is not a defense in a Title VII suit for sexual harassment
brought by a plaintiff who was underage when the conduct alleged to constitute
harassment occurred, this does not mean that the conduct of the plaintiff can never
be used to reduce the defendant’s damages in such a case.”); accord Doe v. Mama
Taori’s Premium Pizza, LLC, No. M1998-00992-COA-R9-CV, 2001 WL 327906,
at *7 (Tenn. App. Apr. 5, 2001); Beul v. ASSE Int’l, Inc., 233 F.3d 441, 450–51 (7th
Cir. 2000); Parsons v. Parker, 170 S.E. 1, 3 (Va. 1933).
These authorities appear to be driven by the rationale that fundamental
fairness requires the jury’s consideration of all the surrounding circumstances,
including the minor’s factual consent. See Doe ex rel. Roe v. Orangeburg Cnty. Sch.
Dist. No. 2, 518 S.E.2d 259, 261 (S.C. 1999) (“Unlike the victim in a criminal case,
the plaintiff in a civil damage action is ‘on trial’ in the sense that he or she is an
actual party seeking affirmative relief from another party. Such plaintiff is a
voluntary participant, with strong financial incentive to shape the evidence that
determines the outcome. It is antithetical to principles of fair trial that one party may
seek recovery from another based on evidence it selects while precluding opposing
relevant evidence on grounds of prejudice.”); accord L.K. v. Reed, 631 So. 2d 604,
607 (La. App. 1994).
A.Z. has not cited to any authority (and we are aware of none) in which a court
has held that a minor’s factual consent is irrelevant to the determination of actual
damages. In the absence of such authority, A.Z. offers two responses to the opposing
authorities that hold that a jury should be allowed to consider evidence of the minor’s
factual consent.
First, in response to the criminal case from Texas, A.Z. proposes that if a
minor’s factual consent is a mitigating circumstance to be considered during the
13
punishment stage of a criminal trial, then the corollary of that rule is that in a
bifurcated civil trial, a minor’s factual consent should be considered during the
exemplary damages stage, but not the compensatory damages stage. A.Z. then
argues that the trial court’s charge instruction was consistent with this corollary
because the instruction was given during the compensatory damages stage, and
because the trial court had already ruled that evidence of A.Z.’s factual consent
would be admissible during the exemplary damages stage, should that stage be
reached.
A.Z.’s proposed corollary is unsound. Compensatory damages redress
concrete losses caused by the defendant’s wrongful conduct, whereas exemplary
damages are aimed at deterrence and retribution. See Horizon Health Corp. v.
Acadia Healthcare Co., 520 S.W.3d 848, 873 (Tex. 2017). Evidence of a minor’s
factual consent is relevant to compensatory damages because such evidence shows
whether the minor has suffered actual injuries in the first place.
Second, in response to the civil authorities, A.Z. argues that if a minor’s
factual consent is relevant to compensatory damages, then Solis waived his
challenge to the charge instruction because he did not request a separate instruction
on A.Z.’s comparative fault or proportionate responsibility. This argument is fatally
flawed. A minor cannot be at fault in her own statutory rape. Cf. In re B.W., 313
S.W.3d at 826 (holding that a thirteen-year-old girl cannot be charged with
prostitution because children are the victims, rather than the perpetrators, of
prostitution); Soliz v. State, 293 S.W.2d 662, 662 (Tex. Crim. App. 1956) (holding
that the victim in a statutory rape is not an accomplice witness). Also, the waiver
point is refuted by the record: Solis submitted a written objection that directly
addressed this issue, and that objection was repeated during the charge conference.
14
We agree with the line of authority that holds that a minor’s factual consent is
relevant to the assessment of damages. We therefore hold that the trial court abused
its discretion by submitting the challenged instruction.
We next consider whether the charge instruction resulted in harm. When a
trial court commits charge error, the judgment must be reversed if the error
“probably caused the rendition of an improper judgment.” See Tex. R. App. P.
44.1(a)(1). Charge error is generally considered harmful if the error relates to a
contested, critical issue. See Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012).
We begin by noting that the same legal error that appeared in the charge
instruction also formed the basis of a key evidentiary ruling. Specifically, the trial
court ruled that Solis could not elicit testimony about A.Z.’s subjective feelings
because A.Z. had been below the age of consent during the times in question. The
result of this ruling was that A.Z.’s lawyer largely controlled the scope of her
testimony, which skewed the trial in A.Z.’s favor. A.Z. testified that she assented to
Solis’s sexual advances solely because she wanted to keep her job, and she
specifically denied having had a romantic relationship with him.
There was some conflicting evidence on this point, but the evidence was not
fully developed. The jury heard that A.Z. concealed her dating relationship from her
mother. The jury also heard limited testimony that A.Z. was “happy” with Solis, that
she “pursued” a relationship with him, and that she “thought she was in love.” Solis
was not permitted to expand on this testimony, and the trial court’s erroneous charge
instruction categorically prohibited the jury from considering it.
Had the jury been allowed to consider evidence of A.Z.’s factual consent,
there is a reasonable probability that its findings on damages would have been
different. The jury could have found that A.Z. was in a romantic relationship with
15
Solis (contrary to her testimony), which might have mitigated any damages resulting
from Solis’s sexual assaults.
We conclude that the trial court’s charge instruction probably caused the
rendition of an improper judgment, and that the judgment should be reversed for a
new trial on the claim of sexual assault.
II. The Judgment Against Chipotle
The trial court rendered judgment against Chipotle on two separate claims:
the first was a common law claim for sexual assault, which was based on a vice
principal theory of liability; and the second was a statutory claim for sexual
harassment, which was based on the Texas Commission of Human Rights Act
(“TCHRA”). We address these two claims in reverse order.
We consider four issues with respect to the statutory claim of sexual
harassment. In the first of these issues, Chipotle argues that we should vacate the
trial court’s judgment and dismiss the claim for lack of jurisdiction because A.Z. did
not timely file her administrative complaint. In the second and third issues, Chipotle
argues that we should render judgment in its favor because the trial court omitted an
essential element from the liability question, or in the alternative, because the
evidence conclusively established an affirmative defense. In the fourth issue,
Chipotle argues that we should remand the claim for a new trial because the same
charge instruction that caused an improper judgment on the sexual assault claim also
caused an improper judgment on the sexual harassment claim.
As for the common law claim of sexual assault, we consider just a single issue:
whether we should render judgment in Chipotle’s favor because the claim is
preempted by TCHRA.
16
A. The trial court did not lack jurisdiction over the sexual harassment
claim.
TCHRA requires a person to file an administrative complaint no later than
180 days after the date of the unlawful employment practice. See Tex. Labor Code
§ 21.202(a). A.Z. did not strictly comply with this deadline. She filed her complaint
before her eighteenth birthday, but more than 180 days after her resignation, which
was the last possible date on which the harassment could have occurred.
Chipotle now argues for the first time on appeal—and in a letter brief filed
just one week before oral argument—that the trial court lacked jurisdiction over the
harassment claim because A.Z. did not file her administrative complaint within
TCHRA’s statute of limitations. A.Z. counters that the 180-day deadline is not
jurisdictional and that Chipotle waived the limitations defense by not asserting it in
the trial court. A.Z. also contends that even if the 180-day deadline is jurisdictional,
the statute of limitations was tolled because of her minority.
We are duty-bound to determine questions of jurisdiction, so we begin with
that threshold issue. See In re City of Dallas, 501 S.W.3d 71, 73 (Tex. 2016) (orig.
proceeding) (per curiam).
1. The 180-day deadline is jurisdictional.
There are two conflicting lines of authority in this jurisdictional dispute. On
the one hand, there is a trio of cases, beginning with Schroeder v. Texas Iron Works,
Inc., that squarely hold that TCHRA’s 180-day deadline is jurisdictional, even in a
suit against a private party. See Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483,
486–88 (Tex. 1991), overruled on other grounds by In re USAA, 307 S.W.3d 299
(Tex. 2010) (orig. proceeding); Specialty Retailers, Inc. v. DeMoranville, 933
S.W.2d 490, 492 (Tex. 1996) (per curiam); Johnson & Johnson Med., Inc. v.
Sanchez, 924 S.W.2d 925, 929 n.3 (Tex. 1996).
17
On the other hand, there are more recent authorities, beginning with Dubai
Petroleum Co. v. Kazi, and all postdating that earlier trio of cases, that hold that
statutory prerequisites to suit should not be regarded as jurisdictional, unless the
legislature has clearly stated otherwise. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d
71, 76 (Tex. 2000); City of DeSoto v. White, 288 S.W.3d 389, 393–94 (Tex. 2009);
In re USAA, 307 S.W.3d at 306–07.
The conflict persists because the Texas Supreme Court has not overruled the
Schroeder line of authority, and because the legislature has only declared that
statutory prerequisites to suit are jurisdictional in suits against a governmental entity.
See Tex. Gov’t Code § 311.034. The legislature has made no similar declarations
regarding suits against a private party, or regarding TCHRA’s 180-day deadline
more specifically.
The Supreme Court had an opportunity to revisit Schroeder in Prairie View
A&M University v. Chatha, 381 S.W.3d 500 (Tex. 2012). That case also involved
TCHRA’s 180-day deadline, but because the suit there was against a governmental
entity, and therefore controlled by a different statute, the Court expressly declined
to decide whether the 180-day deadline was jurisdictional “in nature”—i.e., in suits
against a private party as well. Id. at 510 n.15. There was a dissent, however, and the
dissent would have overruled Schroeder and its progeny as being “inconsistent” with
the rule announced in Dubai. Id. at 519 (Jefferson, C.J., dissenting).
Against this legal backdrop, Chipotle urges us to follow Schroeder and A.Z.
urges us to follow Dubai. We feel bound by Schroeder. Even though we agree with
A.Z. that the specific holding in Schroeder is completely irreconcilable with the
broader rule announced in Dubai, we have no authority to abrogate or modify
established precedent, especially after the Supreme Court declined to do so in
Chatha. See In re Smith Barney, Inc., 975 S.W.2d 593, 598 (Tex. 1998) (orig.
18
proceeding) (“If a precedent of this Court has direct application in a case, yet appears
to rest on reasons rejected in some other line of decisions, the [lower court] should
follow the case which directly controls, leaving to this Court the prerogative of
overruling its own decisions.”).
The Supreme Court should overrule Schroeder, but until it revisits Schroeder
again, or the legislature supersedes Schroeder by statute, we conclude that TCHRA’s
180-day deadline is jurisdictional. See Free v. Granite Publ’ns, L.L.C., 555 S.W.3d
376, 381 (Tex. App.—Austin 2018, no pet.) (following Schroeder instead of Dubai);
Czerwinski v. Univ. of Tex. Health Science Ctr. at Houston Sch. of Nursing, 116
S.W.3d 119, 122 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (same).
This conclusion means that Chipotle could not waive its limitations defense,
but it does not mean that the trial court was necessarily deprived of jurisdiction. We
must also consider A.Z.’s tolling argument.
2. The limitations period was tolled.
A.Z. relies on section 16.001 of the Civil Practice and Remedies Code, which
provides as follows:
(a) For purposes of this subchapter, a person is under a legal disability
if the person is:
(1) younger than 18 years of age, regardless of whether the
person is married; or
(2) of unsound mind.
(b) If a person entitled to bring a personal action is under a legal
disability when the cause of action accrues, the time of the disability is
not included in a limitations period.
Citing this statute, A.Z. asserts that she was under a legal disability when her
harassment claim accrued because she was a minor for the entire time that she was
employed by Chipotle. She then contends that her limitations period was tolled until
19
she reached the age of majority, when her legal disability was finally removed.
Because A.Z. filed her administrative complaint before she reached the age of
majority, she argues that her claim is not barred by limitations and that the trial court
was not deprived of jurisdiction.
Chipotle responds that the scope of section 16.001 is not so broad. More
specifically, Chipotle argues that section 16.001 applies only to the limitations
periods contained in chapter 16, subchapter A of the Civil Practice and Remedies
Code, where the statute itself is located. Because TCHRA appears in a different code
entirely, Chipotle contends that section 16.001 does not toll TCHRA’s 180-day
deadline.
The parties’ disagreement raises a question of statutory interpretation, for
which our review is de novo. See Sommers for Ala. & Dunlavy, Ltd. v. Sandcastle
Homes, Inc., 521 S.W.3d 749, 754 (Tex. 2017). Our practice when interpreting a
statute is to give effect to the legislature’s intent by applying the plain meaning of
the words appearing in the statute. See State v. Shumake, 199 S.W.3d 279, 287 (Tex.
2006). When the text is clear, the text is determinative of that intent. See Entergy
Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009).
The only part of section 16.001 that operates as a tolling provision is
subsection (b), and that provision is triggered when a person under a legal disability
brings a “personal action.” See Tex. Civ. Prac. & Rem. Code § 16.001(b). Because
the statute does not define the phrase “personal action,” we apply its ordinary
meaning, which is this: “an action brought for the recovery of debts, personal
property, or damages arising from any cause.” See Black’s Law Dictionary 31 (7th
ed. 1999).
This broad definition is consistent with the other statutes organized under
subchapter A, which is labeled “Limitations of Personal Actions.” These statutes
20
prescribe the limitations periods for many different types of actions, including those
involving debts, personal property, and personal injury. See Tex. Civ. Prac. & Rem.
Code §§ 16.003, 16.004. Because the Supreme Court has recognized that a
harassment claim under TCHRA is a specialized form of personal-injury suit, we
conclude that a harassment claim under TCHRA qualifies as a “personal action” for
purposes of section 16.001. See Waffle House, 313 S.W.3d at 805.
Chipotle counters that this interpretation effectively nullifies the preliminary
text of section 16.001, which begins with the phrase “For the purposes of this
subchapter . . . .” But that text is contained solely within subsection (a), which
merely defines when a person is under “a legal disability.” See Tex. Civ. Prac. &
Rem. Code § 16.001(a). Our interpretation of subsection (b) does not disturb the
definition under subsection (a). Nor does it disturb the broader definition of “a legal
disability” in subchapter B, which the legislature clearly intended to be separate. Id.
§ 16.022(a)(3) (providing that for purposes of real property actions, but not personal
actions, service in the armed forces during a time of war is also a legal disability).
Chipotle also argues that our interpretation conflicts with Martinez v. Val
Verde County Hospital District, 140 S.W.3d 370 (Tex. 2004). We disagree for at
least two reasons.
First, the issue in Martinez concerned a notice requirement under the Texas
Tort Claims Act, not a statute of limitations under TCHRA. The Supreme Court did
not even mention TCHRA in its opinion. Therefore, Martinez has limited
applicability to this case.
Second, the Court in Martinez made no holding with respect to section 16.001.
The Court only referred to section 16.001 in dicta because of a concession made by
the plaintiffs: “They concede that because section 16.001 expressly applies only to
limitations periods contained in chapter 16, subchapter A of the Texas Civil Practice
21
and Remedies Code, where it is located, it cannot toll the notice period under the
Tort Claims Act, which is located in chapter 101, subchapter D of the Code.” Id. at
372. The Court expressed no opinion on whether this concession was actually
correct. More importantly, the Court expressed no opinion as to the meaning of
“personal action.”
For these reasons, we do not agree with Chipotle that section 16.001 cannot
apply to limitations periods appearing in TCHRA. The legislature did not expressly
exclude TCHRA from the scope of section 16.001. Similarly, the legislature did not
indicate in TCHRA that statutory tolling should be prohibited in claims asserted
under TCHRA. See In re USAA, 307 S.W.3d at 311 (“Had the Legislature wanted to
prohibit statutory tolling, it could have done so, but TCHRA is devoid of any such
indication.”).
We conclude that the limitations period on A.Z.’s harassment claim was tolled
during the period of her minority, and that her administrative complaint was timely
because it was filed before she reached the age of eighteen. See Tex. Civ. Prac. &
Rem. Code § 16.001(b). Therefore, we overrule Chipotle’s jurisdictional challenge.
B. The trial court did not abuse its discretion in its submission of the
sexual harassment question.
When a sexual harassment claim is based on a hostile work environment, the
plaintiff must generally prove the following essential elements: (1) the plaintiff was
subjected to unwelcome sexual harassment by a supervisory employee, (2) the
harassment occurred because of the plaintiff’s sex, (3) the harassment was so severe
or pervasive as to alter the conditions of employment and create a hostile work
environment, and (4) there is some basis for holding the employer liable for the
conduct of the supervisory employee. See Alamo Heights Indep. Sch. Dist. v. Clark,
544 S.W.3d 755, 771 (Tex. 2018).
22
The trial court’s sexual harassment question largely tracked these elements,
with one notable exception. Over Chipotle’s objection, the trial court did not require
the jury to find that A.Z. regarded her harassment as “unwelcome.” Chipotle now
argues that without the “unwelcomeness” element, the jury’s finding is immaterial
and a take-nothing judgment should be rendered.
We begin by clarifying the scope of A.Z.’s harassment claim. A.Z. presented
evidence about various examples of workplace harassment, including testimony that
Turcios improperly surveilled and commented on women, that another manager (not
Solis) requested kisses from A.Z. in exchange for a paycheck, and that Solis sexually
assaulted her. A.Z. based her harassment claim on just the sexual assaults by Solis.
And during closing arguments, her lawyer referred exclusively to these sexual
assaults when discussing the factual basis of the harassment claim. See Waffle
House, 313 S.W.3d at 811 (considering the closing arguments when discerning the
nature of the claim asserted).
Insofar as the two claims are based on the same set of facts, our charge-error
analysis of the harassment claim does not differ from our charge-error analysis of
the assault claim.
Our analysis of the assault claim turned on the legislative judgment regarding
the age of consent. We explained that because A.Z. was below the age of consent,
any sexual contacts that Solis had with her were improper, unless an exception
applied. And because no exception could apply to Solis, we held that any sexual
contacts that actually occurred between them were offensive and provocative as a
matter of law. Thus, the jury only needed to determine whether the sexual contacts
occurred as alleged, not whether a reasonable person would have regarded those
contacts as offensive or provocative.
23
We apply the same rule of decision with harassment claims under TCHRA.
Indeed, that is how federal courts approach like claims under Title VII, which
TCHRA was enacted to track. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372
S.W.3d 629, 633–34 (Tex. 2012) (“Because one of the purposes of the TCHRA is to
provide for the execution of the policies of Title VII of the Civil Rights Act of 1964,
we have consistently held that those analogous federal statutes and the cases
interpreting them guide our reading of the TCHRA.”); Oberweis Dairy, 456 F.3d at
713 (“Federal courts, rather than deciding whether a particular Title VII minor
plaintiff was capable of ‘welcoming’ the sexual advances of an older man, should
defer to the judgment of average maturity in sexual matters that is reflected in the
age of consent in the state in which the plaintiff is employed. That age of consent
should thus be the rule of decision in Title VII cases.”).
Because A.Z. could not legally consent to a sexual relationship with Solis for
as long as she remained under the age of seventeen, the law would not recognize that
she was mature enough to welcome his sexual advances, even though she assented
in fact to those advances. See Mary M. v. N. Lawrence Cmty. Sch. Corp., 131 F.3d
1220, 1227 (7th Cir. 1997) (“If elementary school children cannot be said to consent
to sex in a criminal context, they similarly cannot be said to welcome it in a civil
context. To find otherwise would be incongruous.”). It follows that the trial court
did not abuse its discretion by omitting the “unwelcomeness” element from the
harassment question. Id. at 1227–28 (holding in a Title IX case involving a thirteen-
year-old girl that the trial court reversibly erred by submitting the “unwelcomeness”
issue to the jury).
24
C. Chipotle’s affirmative defense is precluded by an unchallenged
finding of constructive discharge.
Chipotle’s next set of arguments pertains to the affirmative defense
established in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and its
companion case, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Under
that defense, an employer is not liable for a harassment claim based on a hostile work
environment if the following two elements are proven: (1) the employer exercised
reasonable care to prevent and correct promptly the harassing behavior, and (2) the
employee unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise. See City of Waco
v. Lopez, 259 S.W.3d 147, 151 n.3 (Tex. 2008) (recognizing the defense in cases
involving TCHRA).
Chipotle sought to submit the Faragher/Ellerth defense to the jury, but for
two reasons, the trial court refused to do so. First, the trial court held that Chipotle
had not pleaded the defense in its answer. Second, the trial court held that because
an employer owes a “higher duty” to minors in the workplace, the defense would not
apply when the employee in question is a sixteen-year-old girl.
Disputing these rulings, Chipotle argues that the defense was tried by consent,
and that there is no precedent for the trial court’s finding of a “higher duty” for
employers. Chipotle then argues that judgment should be rendered in its favor
because the evidence conclusively established that Chipotle had implemented an
anti-harassment policy and that A.Z. had failed to avail herself of that policy by not
reporting Solis’s harassment.
A.Z. responds that we need not consider these points because she obtained a
jury finding that she was constructively discharged, which precludes the
25
Faragher/Ellerth defense, and Chipotle failed to challenge that finding on appeal.
We agree with A.Z.
The defense is unavailable “when the supervisor’s harassment culminates in
a tangible employment action, such as discharge, demotion, or undesirable
reassignment.” See Faragher, 524 U.S. at 808; Ellerth, 524 U.S. at 765. A
constructive discharge qualifies as an adverse personnel action under TCHRA if the
employer made working conditions so intolerable that a reasonable person would
feel compelled to resign. See Waffle House, 313 S.W.3d at 805.
The jury found that A.Z. was constructively discharged, and Chipotle did not
challenge that finding in its opening brief. When A.Z. drew attention to this omission
in her appellee’s brief, Chipotle filed a reply brief, arguing that it had no obligation
to challenge that finding because the jury never would have reached the constructive
discharge question if it had returned an affirmative answer under the
Faragher/Ellerth defense. This point is unpersuasive. The jury would have reached
the constructive discharge question in any event because a constructive discharge
counters the affirmative defense. See Dillard Dep’t Stores, Inc. v. Gonzales, 72
S.W.3d 398, 410 (Tex. App.—El Paso 2002, pet. denied) (“Having agreed there was
sufficient evidence to sustain the jury’s finding of constructive discharge, we find
this defense was unavailable to Dillard’s.”); Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d
456, 473 (Tex. App.—Austin 2000, pet. denied) (“Owing to Itz’s constructive
discharge, the defense is not available to Wal-Mart in this instance.”).
Because Chipotle did not challenge the finding of constructive discharge in
its opening brief, we need not consider Chipotle’s rendition argument that the
evidence conclusively established the Faragher/Ellerth defense.
26
D. The trial court’s erroneous charge instruction probably caused the
rendition of an improper judgment on the sexual harassment claim.
In its next issue, Chipotle argues that we should remand the sexual harassment
claim for a new trial because of the trial court’s erroneous charge instruction. Having
previously determined in Part I.B of this opinion that the charge instruction was
erroneous, we now consider whether it was harmful with respect to the sexual
harassment claim. We conclude that it was.
The charge instruction prohibited the jury from giving effect to the evidence
that A.Z. factually consented to a sexual relationship with Solis. Had the jury been
allowed to consider that evidence, the jury may have concluded that her work
environment was not as hostile as she had claimed, which in turn may have resulted
in a different assessment of damages.
Consistent with our earlier analysis, we conclude that the trial court’s charge
instruction probably caused the rendition of an improper judgment, and that the
judgment should be reversed for a new trial on the claim of sexual harassment.
E. The common law claim of sexual assault against Chipotle is
preempted by TCHRA.
Chipotle argues next that A.Z.’s common law claim of sexual assault is
preempted by her statutory claim of sexual harassment because both claims are based
on the same underlying facts.
Our preemption analysis is guided by B.C. v. Steak N Shake Operations, Inc.,
512 S.W.3d 276 (Tex. 2017). In that case, the plaintiff was sexually assaulted at
work when her supervisor exposed himself and attempted to have sex with her
against her consent. Id. at 278. The plaintiff alleged a common law theory of
recovery, and like A.Z., she asserted that her employer was directly liable for her
supervisor’s tort because her supervisor was a vice principal. Id. The trial court
27
dismissed the claim, however, and the court of appeals affirmed, having decided that
the claim was preempted by TCHRA. Id. at 279.
The Texas Supreme Court reversed. In holding that the plaintiff’s claim was
not preempted, the Court explained that TCHRA was not enacted to provide for the
“wholesale abrogation of the common law tort of assault when the assault occurs in
the workplace.” Id. at 284.
A.Z. seizes on this holding, and argues that her common law claim is not
preempted either. Under her reading of Steak N Shake, TCHRA will never preempt
a common law claim of assault when the plaintiff asserts that her employer is directly
liable for the intentional tort of a vice principal.
A.Z.’s reading of Steak N Shake goes too far. The Court did not forge a blanket
exception to the preemptive effect of TCHRA, like it did, for example, in the
workers’ compensation context. See Medina v. Herrera, 927 S.W.2d 597, 600
(1996) (holding that the exclusive remedy provision under the Texas Workers’
Compensation Act does not apply to intentional torts attributable directly to an
employer under a vice principal theory of liability). Instead, the Court based its
holding on the individual facts of the case.
The Court considered six nonexclusive factors in its preemption analysis:
(1) whether the plaintiff’s “supervisor offered her a promotion or tied sexual favors
to job performance”; (2) whether “her supervisor’s actions had the purpose or effect
of unreasonably interfering with [her] work performance or creating an intimidating,
hostile, or offensive working environment”; (3) whether “there was any discussion
of a sexual nature or any actions by her supervisor that could be interpreted in a
sexual way prior to the alleged . . . assault”; (4) whether “her supervisor’s behavior
was part of a pattern”; (5) whether “she witness[ed] or report[ed] any prior assaultive
behavior by her supervisor or any other . . . manager”; and (6) whether she
28
“allege[d] that [her employer] is liable for fostering or tolerating a hostile work
environment, a wrong the TCHRA was intended to remedy.” See Steak N Shake, 512
S.W.3d at 283–84.
Because all six of these factors were absent in Steak N Shake, the Court
concluded that the plaintiff’s claim sounded in sexual assault, rather than sexual
harassment, and therefore, the Court held that the claim was not preempted by
TCHRA. Id. at 284 (“B.C.’s claim is not an effort to repackage harassment into
assault so as to recover under the common law. The essence of B.C.’s claim is
assault.”).
By contrast, all six factors are present here. A.Z. testified that Solis promised
her better work hours and a better work schedule if she had sex with him (Factor 1);
that she felt pressured to assent to Solis’s sexual advances because she wanted to
keep her job (Factor 2); that Solis bumped into her breasts when they first met, and
then he persistently asked her out on a date nearly fifteen times over the course of a
month (Factor 3); that Solis sexually assaulted her forty times (Factor 4); that other
managers made sexual comments about women in her presence, and that one
manager asked her for a kiss in exchange for her paycheck (Factor 5). And she
specifically asserted a TCHRA claim for sexual harassment against Chipotle (Factor
6).
A.Z.’s litigation strategy provides additional confirmation that her statutory
claim for sexual harassment is factually related to her common law claim for sexual
assault. As we previously discussed in Part II.B of this opinion, A.Z. proposed her
jury question for sexual harassment without the “unwelcomeness” element that is
traditionally required in harassment cases. When Chipotle objected to the omission
of that element, A.Z. responded that the element should not be submitted because,
as a matter of law, she could not welcome Solis’s sexual advances for as long as she
29
remained under the age of consent. This litigation strategy demonstrates that A.Z.’s
statutory claim for sexual harassment is premised on the exact same facts that
underlie her common law claim for sexual assault. TCHRA does not allow for the
dual recovery of such factually related claims. Id. at 285.
Based on this record, we conclude that A.Z.’s common law claim sounds in
sexual harassment, and therefore, it is preempted by TCHRA.
III. The Judgment Against Turcios
We only consider two issues presented by Turcios. In the first issue, we
consider whether a common law claim for aiding and abetting should be recognized
in Texas. After answering that question in the negative, we then consider whether
there is any other basis for Turcios’s liability.
A. Aiding and abetting is not recognized under our common law.
A.Z. originally asserted a claim of civil conspiracy against Turcios, but after
resting her case in chief, she nonsuited her conspiracy claim and amended her
pleadings to assert a claim of aiding and abetting instead.
During the charge conference, Turcios objected to the submission of A.Z.’s
aiding and abetting claim on the ground that there is no such cause of action in Texas.
A.Z. responded that the claim has been recognized before, citing Stein v. Meachum,
748 S.W.2d 516 (Tex. App.—Dallas 1988, no writ), and section 876 of the Second
Restatement of Torts. The trial court agreed with A.Z. and overruled the objection.
The trial court’s ruling was erroneous. Eight years after Stein, the Texas
Supreme Court declined to adopt section 876 of the Restatement, and the Court
specifically pronounced that the viability of this claim was “an open question.” See
Juhl v. Airington, 936 S.W.2d 640, 643 (Tex. 1996). That pronouncement
contradicts the conclusion in Stein that the claim is recognized in Texas. Cf. Rice v.
30
Rice, 533 S.W.3d 58, 62 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“The
Texas Supreme Court’s pronouncement in Kinsel that the viability of a Texas
tortious-interference-with-inheritance claim is ‘an open question’ contradicts the
earlier conclusion of the First and Fourteenth Courts of Appeals ‘that a cause of
action for tortious interference with inheritance rights exists in Texas.’”).
The Supreme Court has yet to settle this open question. In Ernst & Young,
L.L.P. v. Pacific Mutual Life Insurance Co., 51 S.W.3d 573, 583 n.7 (Tex. 2001),
the Court declined to answer whether a claim for aiding and abetting should exist
separate and apart from a claim for civil conspiracy. And even more recently, in
First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 224 (Tex.
2017), the Court reiterated that it “has not expressly decided whether Texas
recognizes a cause of action for aiding and abetting.”
Since Parker, we have only addressed a claim for aiding and abetting in two
cases. See Jessen v. Duvall, No. 14-16-00869-CV, 2018 WL 1004659, at *7 (Tex.
App.—Houston [14th Dist.] Feb. 22, 2018, no pet.) (mem. op.); Immobiliere Jeuness
Establissement v. Amegy Bank Nat’l Ass’n, 525 S.W.3d 875, 882 (Tex. App.—
Houston [14th Dist.] 2017, no pet.). But in neither case were we asked to decide
whether the claim should be recognized under our common law. We simply disposed
of the claim on other grounds. See Jessen, 2018 WL 1004659, at *7–8 (the
underlying tort failed); Immobiliere, 525 S.W.3d at 882–83 (there was no evidence
of causation).
The question becomes whether we should recognize the claim now.
When deciding to recognize a new cause of action, courts “must perform
something akin to a cost-benefit analysis to assure that this expansion of liability is
justified.” See Kinsel v. Lindsey, 526 S.W.3d 411, 423 n.6 (Tex. 2017). The non-
dispositive factors we must consider include (1) the foreseeability, likelihood, and
31
magnitude of the risk of injury; (2) the existence and adequacy of other protections
against the risk; (3) the magnitude of the burden of guarding against the injury and
the consequences of placing that burden on the persons in question; and (4) the
consequences of imposing the new duty, including whether Texas’s public policies
are served or disserved, whether the new duty may upset legislative balancing-of-
interests, and the extent to which the new duty provides clear standards of conduct
so as to deter undesirable conduct without impeding desirable conduct or unduly
restricting freedoms. Id.
A.Z. has briefed none of these factors. Instead, she mostly relies on Stein and
other lower court cases citing it, which are not authoritative for the reasons stated
above. A.Z. also relies on some lower court cases that do not cite to Stein, but these
are not authoritative either because they all trace back to a tort law treatise that the
Supreme Court considered and declined to adopt (and which Stein itself had cited).
See Juhl, 936 S.W.2d at 643 (discussing Prosser & Keeton on Torts).
Because A.Z. has not briefed any of the factors identified in Kinsel, or
explained why a claim for aiding and abetting should be recognized in addition to a
claim for civil conspiracy, we conclude that this case does not warrant an extension
of existing law. See Rice, 533 S.W.3d at 63.
B. There is no other basis for Turcios’s liability.
In addition to her claim for aiding and abetting, A.Z. alleged that Turcios was
liable because he was negligent in failing to report Solis’s sexual assaults to a law
enforcement agency, as required by section 261.109 of the Texas Family Code. In
furtherance of this theory of liability, A.Z. requested the submission of three separate
questions during the charge conference. The first question was a predicate question
that asked whether Turcios knew or should have known about the sexual assaults.
The second question asked whether A.Z.’s damages were proximately caused by
32
Turcios’s negligence in failing to report the sexual assaults. And the third question
asked whether A.Z.’s damages resulted from Turcios’s gross negligence.
Turcios objected on the ground that the law did not impose a duty. The trial
court agreed with Turcios that a failure to report would not give rise to a civil cause
of action. The trial court refused to submit A.Z.’s negligence question, but it
nevertheless submitted the predicate question and the gross negligence question, and
the jury returned affirmative findings under both.
Turcios now argues that these findings cannot support his liability. A.Z. has
not responded to this point of error. We agree with Turcios that his liability cannot
be based on these findings. See Perry v. S.N., 973 S.W.2d 301, 309 (Tex. 1998) (“It
is not appropriate to adopt Family Code section 261.109(a) as establishing a duty
and standard of conduct in tort.”).
CONCLUSION
We REVERSE the trial court’s judgment and we (1) REMAND the common
law claim of sexual assault against Solis for new trial; (2) REMAND the statutory
claim of sexual harassment against Chipotle for new trial; (3) RENDER judgment
that A.Z. take nothing on her common law claim of sexual assault against Chipotle;
and (4) RENDER judgment that A.Z. take nothing against Turcios.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Jamison, and Brown.
33