Chrismon v. Brown

• Decision Date: 27 September 2007
• Docket Number: No. 14-05-00822-CV.,14-05-00822-CV.
• Citation: 246 S.W.3d 102
• Parties: Robin CHRISMON and Lonnie Chrismon, Appellants, v. Harold J. BROWN, Individually and as an Agent of Registered Teams of the Amateur Softball Association of America, and Registered Teams of the Amateur Softball Association of America, Appellees.
• Court: Texas Court of Appeals

246 S.W.3d 102

Robin CHRISMON and Lonnie Chrismon, Appellants, v. Harold J. BROWN, Individually and as an Agent of Registered Teams of the Amateur Softball Association of America, and Registered Teams of the Amateur Softball Association of America, Appellees.

No. 14-05-00822-CV.

Court of Appeals of Texas, Houston (14th Dist.).

September 27, 2007.

Supplemental Majority Opinion on Overruling of Rehearing January 10, 2008.

John H. Boswell, Kevin Dubose, Houston, for appellants.

Scott Garyt Hunziker, Terry Fitzgerald, The Woodlands, for appellees.

Panel consists of Justices FOWLER, FROST and EDELMAN.^*

MAJORITY OPINION

KEM THOMPSON FROST, Justice.

A volunteer assistant coach on a girls softball team sustained injuries when she was struck in the face by a bat that slipped from the hand of the volunteer head coach during a softball drill. The injured assistant coach and her husband appeal the trial court's summary judgment dismissing their claims against the head coach and the softball association. In reviewing the trial court's summary judgment as to the allegation that the softball association is vicariously liable for the head coach's alleged acts or omissions, we must determine what duties, if any, one sports participant owes to another sports participant, which is an issue of first impression in this court. We hold that (1) a sports participant owes no negligence duty to another sports participant regarding risks inherent in the sport in question; (2) a sports participant owes a negligence duty to another sports participant regarding risks that are not inherent in that sport; and (3) regardless of whether the risk is inherent, a sports participant owes a duty not to cause injury to another sports participant by gross negligence or intentional conduct.

In response to the softball association's no-evidence ground, the plaintiff/assistant coach did not produce evidence showing that the risk in question was not inherent in the sport in which she was engaged when she was injured. The summary-judgment evidence did not raise a fact issue as to whether the head coach engaged in gross negligence or intentional conduct. Therefore, this court affirms the trial court's summary judgment as to the assistant coach's vicarious-liability claims against the softball association. We also conclude the trial court correctly granted (1) the head coach's motion for summary judgment in which he asserted immunity under the Charitable Immunity and Liability Act of 1987, and (2) the softball association's motion for summary judgment in which it sought dismissal of all direct-liability claims against it and all claims asserted by the assistant coach's husband. Though this is the first case in which this court has adopted and applied the inherent-risk doctrine, under Texas Supreme Court precedent, we do not have the power to reverse the trial court's error-free judgment and remand in the interest of justice. Therefore, we affirm the trial court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Robin Chrismon and appellee Harold J. Brown volunteered to serve as coaches through appellee Registered Teams of the Amateur Softball Association of America ("Registered Teams"). In January 2002, while acting as a volunteer assistant coach at a twelve-year-old-and-under girls softball team practice and/or tryout,¹ Robin was injured when a bat being swung by Brown slipped from his hand and struck Robin in the face.

As relevant to this appeal, Robin sued Brown and Registered Teams alleging negligence, gross negligence, and assault. Robin's husband, Lonnie Chrismon, asserted claims for loss of household services, loss of consortium, loss of income, and mental anguish.

Brown filed a traditional motion for summary judgment, asserting the affirmative defense of immunity under the Charitable Immunity and Liability Act of 1987 ("the Act").² Registered Teams filed motions for summary judgment, asserting, among other things, that there was no evidence as to: (1) a legal duty, (2) a breach of duty, and (3) damages proximately resulting from the breach. The trial court granted summary judgment dismissing all of the Chrismons' claims.

II. STANDARDS OF REVIEW

In reviewing a traditional summary judgment, we consider whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. KPMG Peat Marwick v. Harrison County Hons. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). To be entitled to summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiffs causes of action or conclusively establish each element of an affirmative defense. Science Spectrum Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Under this standard, we take as true all evidence favorable to the nonmovant, and we make all reasonable inferences in the nonmovant's favor. Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). If the movant's motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. Id.

In reviewing a no-evidence summary judgment, we ascertain whether the nonmovant pointed out summary-judgment evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206-08 (Tex.2002). We take as true all evidence favorable to the nonmovant, and we make all reasonable inferences therefrom in the nonmovant's favor. Dolcefino, 19 S.W.3d at 916. A no-evidence motion for summary judgment must be granted if the party opposing the motion does not respond with competent summary-judgment evidence that raises a genuine issue of material fact. Id. at 917. When, as in this case, the trial court does not specify in the order granting summary judgment the grounds upon which the trial court relied, we must affirm summary judgment if any of the independent summary-judgment grounds is meritorious. See Ramco Oil & Gas Ltd. v. Anglo-Dutch (Tenge) L.L.C., 207 S.W.3d 801, 826 (Tex. App.-Houston [14th Dist.] 2006, pet. denied).

III. ANALYSIS

A. Did the trial court err in granting the volunteer head coach's motion for summary judgment?

In their first issue, the Chrismons challenge the summary judgment for Brown, the volunteer head coach, on the ground that a fact issue exists as to whether Brown's conduct fell outside the scope of civil immunity because it was wilfully negligent, or committed with conscious indifference or reckless disregard for the safety of others.

Volunteers of certain charitable organizations are generally immune from civil liability for any act or omission resulting in death, damage, or injury if the volunteer was acting in the course and scope of the volunteer's duties or functions in the organization. See TEX. CIV. PEAC. & REM.CODE ANN. § 84.004(a) (Vernon 2005). Brown's summary-judgment evidence establishes (and the Chrismons do not dispute) that Registered Teams qualifies as a charitable organization under the Act and that Brown was acting in the course and scope of his duties as a volunteer of Registered Teams when the accident occurred. This evidence proves as a matter of law that Brown is entitled to immunity under the terms of section 84.004(a) of the Act. See TEX. CIV. PRAC. & REM.CODE ANN. § 84.004(a).

This immunity, however, does not apply to an act or omission that is intentional, wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others. See id. § 84.007(a). Though the Chrismons do not assert that Brown's conduct was intentional, they do assert that the summary-judgment evidence raises a genuine issue of fact as to whether Brown's act or omission falls within the statutory exception as being "wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others" (hereinafter the "Exception"). See id.

Although the Act is twenty-years old, research has not revealed any case in which a court has interpreted the statutory language of the Exception. However, in interpreting language from other statutes, the Texas Supreme Court, this court, and other courts of appeals have equated each of these three terms with gross negligence. See, e.g., Burk Royalty Co. v. Walls, 616 S.W.2d 911, 916-20 (Tex.1981) (equating willful negligence, conscious indifference to the welfare of others, and reckless disregard for the rights of others with gross negligence); Morrone v. Prestonwood Christian Academy, 215 S.W.3d 575, 582 (Tex.App.-Eastland 2007, pet. denied) (equating willful misconduct and reckless disregard with gross negligence); Dunlap v. Young, 187 S.W.3d 828, 835-36 (Tex. App.-Texarkana 2006, no pet.) (equating willful negligence and reckless disregard with gross negligence); Hernandez v. Lukefahr, 879 S.W.2d 137, 141-42 (Tex.App.-Houston [14th Dist.] 1994, no writ) (equating willful negligence and conscious indifference with gross negligence); Wheeler v. Yettie Kersting Mem. Hosp., 866 S.W.2d 32, 50 & n. 25 (Tex.App.-Houston [1st Dist.] 1993, no writ) (equating willful negligence and reckless disregard with gross negligence). Therefore, we conclude that, to fall within the Exception, the volunteer's act or omission must constitute "gross negligence," defined as an act or omission: (a) which, when viewed objectively from the standpoint of the actor at the time of occurrence, involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (b) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others. See Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex.1994...