Childers v. A.S.

• Decision Date: 19 October 1995
• Docket Number: No. 2-94-192-CV,2-94-192-CV
• Citation: 909 S.W.2d 282
• Parties: Merryl CHILDERS, Individually and as Next Friend of J.C., a Minor Child, Appellant, v. A.S., a Minor Child, Dennis Dean Miksell, and Evelyn Silva Miksell, Appellees.
• Court: Texas Court of Appeals

Page 282

909 S.W.2d 282

Merryl CHILDERS, Individually and as Next Friend of J.C., a Minor Child, Appellant, v. A.S., a Minor Child, Dennis Dean Miksell, and Evelyn Silva Miksell, Appellees.

No. 2-94-192-CV.

Court of Appeals of Texas Fort Worth.

Oct. 19, 1995.

C. Gregory Shamoun, Dallas, for appellant.

Cheryl D. Smith, Jeffrey N. Kaitcer, Fort Worth, for appellees.

Before LIVINGSTON, DAUPHINOT and BRIGHAM, JJ.

OPINION

DAUPHINOT, Justice.

Appellant Merryl Childers, individually and on behalf of her minor daughter J.C., sued appellees A.S., a minor, and her mother and stepfather, Evelyn and Dennis Miksell, alleging inappropriate sexual contact between A.S. and J.C. The trial court granted summary judgment for appellees. Appellant appeals from the summary judgment, asserting nineteen points of error. We affirm the summary judgment in part and reverse and remand in part.

BACKGROUND

J.C. was molested by an unknown male intruder in her home in October 1990. She subsequently received psychological counseling and was hospitalized at a psychiatric hospital. During this treatment, J.C. claimed that earlier in the summer of 1990 she and A.S. had played "sexual games." At the time of the acts complained of, A.S. was twelve and J.C. was ten. In this suit, appellant alleged negligence, false imprisonment, and battery claims against A.S. and negligence claims against the Miksells.

STANDARD OF REVIEW

In a summary judgment case, the issue on appeal is whether the movant met her summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. ¹ The burden of proof is on the movant, ² and all doubts about the existence of a genuine issue to a material fact are resolved against the movant. ³ Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. ⁴ In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the nonmovant will be accepted as true. ⁵ Evidence that favors the movant's position will not be considered unless it is uncontroverted. ⁶ The summary judgment will be affirmed only if the record establishes that the movant has conclusively proved all essential elements of movant's cause of action or defense as a matter of law. ⁷

SUMMARY JUDGMENT EVIDENCE

J.C. said in her deposition that A.S., who was a neighbor, occasionally was a guest in her home and that they played together. J.C. said that she and A.S. played "sexual games" in the game room at J.C.'s home and that another friend, S.N., also played the games with them; the games never took place in A.S.'s home. In the games, J.C. said A.S. touched her breasts. J.C. said that she disliked playing the games and that she told A.S. to stop touching her. J.C. testified that, to get J.C. to play the games, at times A.S. said she would hurt J.C. with a butcher knife (although A.S. never actually displayed a knife) and said she would get other girls to beat up J.C. J.C. said that A.S. was not being supervised by the Miksells when the games or threats took place in J.C.'s home. Appellant, J.C.'s mother, was at times home when these games took place.

In her deposition, A.S. admitted that she played "sexual games" with J.C. and S.N. In the games, A.S. said they all touched each other on the breasts and on the "pubic bone." The only game A.S. specifically named was "doctor/patient." A.S. said that the games were never played in her house and that she had never played such games before she played them with J.C. and S.N A.S. testified that her mother (appellee Evelyn Miksell) found out about the sex games from the mothers of J.C. and S.N., who called A.S.'s mother and talked to her about the situation. Afterwards, when questioned by her mother, A.S. admitted to her that she had played sex games with J.C. and S.N., but she did not tell her mother what kind of sex games they had been playing. A.S.'s mother asked her not to play the games anymore; however, A.S. said that she still continued to play the games for a while, but her mother did not know about it. A.S. also said that her mother told her not to go to the Childers' home anymore, but she still went because J.C. had a "Nintendo" game that A.S. liked to play. A.S. admitted that she lied to her mother about continuing to go to the Childers' home after being told not to.

A.S. testified that her mother also told her stepfather (appellee Dennis Miksell) about A.S. playing sex games right after she had found out, and he said nothing to her about it. A.S. said that he never knew she was playing the sex games when they were taking place.

DISPOSITION

Appellant's Negligence Claims Against the Miksells

We first address appellant's points of error fourteen through nineteen, all of which concern appellant's negligence claims against the Miksells.

Appellant alleged that the Miksells were negligent in the following specific respects:

A. Failed to adequately supervise the activities and conduct of [A.S.], when [the Miksells] knew or reasonably should have known that [A.S.] had past and present mental and emotional problems that could foreseeably lead to conduct such as that made the basis of this suit.

B. Failed to report the acts of abuse and neglect inflicted upon [J.C.] by [A.S.], as set forth in Paragraph 8 of Plaintiffs' Second [sic] Amended Original Petition, to the Texas Department of Human Services and local law enforcement authorities as contemplated by Section 34.01 of the Texas Family Code.

C. Failed to adequately provide an environment free of mental and physical abuse for [J.C.], when [the Miksells] knew or reasonably should have known about the past and present mental and emotional problems of [A.S.] which foreseeably lead [sic] to the occurrences made the basis of this suit.

D. Failed to exercise reasonable care in maintaining family relations of [appellant and J.C.] due to the fact that [the Miksells] knew or should have known that the acts made the basis of this suit would have foreseeably occurred and proximately caused Plaintiffs' damages due to the past and present mental and emotional problems of [A.S.].

E. Failed to exercise reasonable care in providing [A.S.] with psychotherapy and other necessary medical treatment, when [the Miksells] knew or should have known that [A.S.] required additional psychotherapy or other mental health care treatment to prevent her from exhibiting conduct such as that made the basis of this suit, when [the Miksells] knew or reasonably should have known that said conduct could foreseeably occur and proximately cause damages to Plaintiffs.

The Miksells moved for summary judgment on the ground that they owed no duty to appellant or her daughter under appellant's specific allegations of negligence. The trial court granted the motions for summary judgment of A.S. and the Miksells without stating any grounds. When reviewing a summary judgment granted on general grounds, the appellate court considers whether any theories set forth in the motion will support the summary judgment. ⁸ We will affirm the In points of error fourteen through eighteen, appellant contends that the trial court erred in granting summary judgment for the Miksells because the parent-child relationship between Evelyn and A.S., her daughter, established a duty to appellant and J.C., because section 316 of the Restatement (Second) of Torts imposes a duty on the Miksells, and because Dennis Miksell owed appellant and J.C. a duty under section 448 of the Restatement (Second) of Torts and under Texas common law.

summary judgment "if any of the grounds asserted in support of the motion are meritorious." ⁹

Common-law negligence consists of: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach. ¹⁰ The threshold inquiry in a negligence case is duty. ¹¹ The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question. ¹² Where no duty is owed as a matter of law, summary judgment is proper. ¹³

In Rodriguez v. Spencer, ¹⁴ the court addressed the identical issue before us--the scope of a parent's duty to third parties for the tortious or criminal conduct of that parent's child. We agree with the Rodriguez court that the mere fact of paternity or maternity does not make a parent liable to third parties for the torts of his or her minor child and that generally, minors are civilly liable for their own torts. ¹⁵ After a detailed analysis of Texas law, the Rodriguez court concluded that "a parent's duty to protect third parties from the acts of the parent's minor children depends on whether the injury to the third party is reasonably foreseeable under the circumstances as evidenced by the parent's knowledge, consent, sanction, or participation in the child's activities." ¹⁶ We agree with the Rodriguez court's conclusion and will apply it to this case. The Rodriguez court also declined, as we do, to adopt section 316 of the Restatement (Second) of Torts. ¹⁷ And contrary to appellant's claim, the supreme court did not adopt this section in Phillips. ¹⁸

Appellant alleges that Dennis Miksell owed appellant and J.C. a duty under section 448 of the Restatement (Second) of Torts and under Texas common law. Section 448 was adopted in Nixon v. Mr. Property Management Co. ¹⁹ and provides:

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to...