Airington v. Juhl

• Decision Date: 14 July 1994
• Docket Number: No. 08-93-00323-CV,08-93-00323-CV
• Citation: 883 S.W.2d 286
• Parties: Thomas AIRINGTON, II, Appellant, v. Maria JUHL, et al., Appellees.
• Court: Texas Court of Appeals

Page 286

883 S.W.2d 286

Thomas AIRINGTON, II, Appellant, v. Maria JUHL, et al., Appellees.

No. 08-93-00323-CV.

Court of Appeals of Texas,

El Paso.

July 14, 1994.

Rehearing Overruled Aug. 17, 1994.

C. Jeff Minor and Gordon Stewart, Semko & Minor, P.C., El Paso, for appellant.

Mary W. Craig, Dudley, Dudley, Windle & Stevens, L.L.P., Larry W. Hicks, Monty Kimball, Hicks & Associates, Keith Myers, Mounce & Galatzan, El Paso, Elizabeth L. German, Brown & German, Albuquerque, NM, and Cynthia S. Anderson and Ruben Robles, Kemp, Smith, Duncan & Hammond, El Paso, for appellees.

Before BARAJAS, C.J., and LARSEN and McCOLLUM, JJ.

OPINION

BARAJAS, Chief Justice.

The opinion dated April 14, 1994 is hereby withdrawn, and the following is the opinion of this Court.

This is an appeal in a case involving injuries sustained by a law enforcement officer during an abortion protest. Appellant, Thomas Airington, II, appeals from a summary judgment granted in favor of Appellees Maria Juhl, et al., in a negligence case in which Appellant, a police officer, sought to recover for personal injuries alleged to have been caused by Appellees. ¹ In four points of error, Appellant argues that the trial court erred in granting summary judgment. We reverse the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

The record shows that on September 16, 1989, Appellant, an officer with the El Paso Police Department, was called to the scene of a demonstration by abortion protesters at Reproductive Services Clinic, located in El Paso. The demonstrators, including Appellees, were attempting to hinder the activities of the clinic by blocking access to the clinic. Appellant and other police officers at the scene ordered the demonstrators to move, but some members of the group refused to cooperate and became limp, requiring the police officers to physically remove them. Appellant alleges that in the course of lifting one such demonstrator, he injured his back.

On September 13, 1991, Appellant filed suit in Cause No. 91-10531 against Appellees seeking to recover for his injuries. Also named as defendants in the action were Sylvia Salazar and Samuel Oppenheim. Salazar is the person Appellant was actually attempting to lift when his back was injured, and the record shows no dispute among the parties as to this fact. Oppenheim was one of the organizers of the demonstration that occurred on September 16, 1989.

Thereafter, motions for summary judgment were filed by Appellees. The motions for summary judgment generally alleged: (1) a lack of duty owed by them to Appellant; (2) that their acts or omissions were not a proximate cause of Appellant's injuries, and that the sole proximate cause of any such injuries was the acts or omissions of Salazar; and (3) that Appellees are not joint and severally or vicariously liable for Appellant's injuries since no legal relationship existed between them and Salazar. The trial court granted these motions for summary judgment on May 10, 1993 and severed Appellant's action against Appellees from the original action, with Salazar and Oppenheim remaining as defendants, making the summary judgment a final and appealable judgment. The severed action was re-numbered as Cause No. 93-5294.

II. DISCUSSION

The standard of review on appeal is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Brown v. KPMG Peat Marwick, 856 S.W.2d 742, 745 (Tex.App.--El Paso 1993, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant's cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant's cause or claim. Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Brown v. KPMG Peat Marwick, 856 S.W.2d at 745.

In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant's favor. Nixon, 690 S.W.2d at 548-49; Brown v. KPMG Peat Marwick, 856 S.W.2d at 745; Stoker v. Furr's, Inc., 813 S.W.2d 719, 721 (Tex.App.--El Paso 1991, writ denied). Where the defendants are the movants and they submit summary evidence disproving at least one essential element of each of plaintiff's causes of action, then summary judgment should be granted. Perez, 819 S.W.2d at 471; Bradley v. Quality Service Tank Lines, 659 S.W.2d 33, 34 (Tex.1983); Brown v. KPMG Peat Marwick, 856 S.W.2d at 745-46.

The issue, central to the proper disposition of this appeal, is whether the group of abortion protesters qualifies as an "unincorporated association." This issue takes on importance due to the potential individual tort liability of members of such an association for the negligence of other members or the negligence of the association itself. The Texas Supreme Court has defined an unincorporated association as "a voluntary group of persons, without a charter, formed by mutual consent for the purpose of promoting a common enterprise or prosecuting a common objective." Cox v. Thee Evergreen Church, 836 S.W.2d 167, 169 (Tex.1992).

Although no Texas cases have specifically held that a member of such an association may be liable for the tortious act of another member, recent cases have suggested that such liability may in fact be imposed. See Cox, 836 S.W.2d at 170, 173; Holberg & Co. v. Citizens Nat'l Assurance Co., 856 S.W.2d 515, 518 (Tex.App.--Houston [1st Dist.] 1993, no writ); Hutchins v. Grace Tabernacle United Pentecostal Church, 804 S.W.2d 598, 599 (Tex.App.--Houston [1st Dist.] 1991, no writ). In the Hutchins case, the Court held that the members of an association may become liable under a contract signed by another member of the association, if the members assent to or ratify the contract. Hutchins, 804 S.W.2d at 599. In Cox, the Supreme Court held that nonmembers of the association can bring suits for negligence against the association. Cox, 836 S.W.2d at 173. The Supreme Court also recognized that in such tort actions, member liability depends upon such factors as the nature of the association and the individual member's involvement in the conduct giving rise to the cause of action. Id. at 170, citing generally 6 Am.Jur.2d Associations and Clubs § 48 (1963). ² In Holberg & Co., the Court, citing Cox, held that members of an association incurring a debt on behalf of the association or assenting to its creation are personally liable. Holberg & Co, 856 S.W.2d at 518. Moreover, Gaulding v. Celotex Corp., 772 S.W.2d 66, 69 (Tex.1989), the Supreme Court stated, "Under concert of action, those who are in pursuit of a common plan or design to commit a tortious act and actively participate in it or lend aid, cooperation, or encouragement to the wrongdoer are equally liable." Citing Prosser and Keeton on the Law of Torts § 46 (W. Keeton 5th ed. 1984). This theory of concert of action is also embodied in the Restatement of the Law of Torts, § 876. ³

The summary judgment proof in the instant case includes the deposition testimony of Appellees, as well as the deposition testimony of Salazar and Oppenheim. This deposition testimony included descriptions of the organization of abortion protesters as well as descriptions of their plan of action once the demonstration began. Specifically, Oppenheim testified in his deposition that as an organizer of the demonstration, he called various people to ask for their participation. He further testified that this dissemination of information about the protest was done by telephone and word of mouth, and that at that time no formal list of potential participants existed. This testimony was supported by the deposition testimony of the other Appellees and Salazar. Salazar and Appellees Jameson and Landry testified that they could not remember exactly how or when she learned about that specific protest. Appellees Madrid, James Gose, and Aileen Gose testified that they learned about the protest by word of mouth the night before the protest was to take place. Appellee Arellano testified that Salazar told her about the protest two days before it was to occur. Appellee Juhl testified that someone, she did not know who, called her at 3:00 a.m. the morning of the protest to tell her about it. Finally, Appellee Baldwin testified simply that someone told her about the protest.

Oppenheim also testified that a group of approximately 300-400 people met at the Alive Ministries Church the night before the protest for a prayer service and that at that meeting, the possibility of the demonstrators' arrest and what to do when the police came were discussed. All Appellees testified in their depositions that the protesters met as a group at the Alive Ministries Church the morning of the protest and then traveled from the church to the clinic to begin the demonstration. Appellees Jameson and Juhl also testified that cars and vans were used to transport the protesters from the church to the clinic, and that those people who were willing to protest on the premises of the clinic and expose themselves to potential arrest were taken to the clinic in these cars and vans.

The record shows that Appellee Landry testified in his deposition that when the protesters met at the church prior to traveling to the clinic, they were instructed on their purposes in protesting, what to expect from the clinic and the police, and how to respond to the clinic and police. The purposes of the group, as described by Landry and the other Appellees, was to block entry to the clinic in an attempt to make it more difficult for people to obtain abortions...