Doe v. Boys Clubs of Greater Dallas, Inc.

• Decision Date: 08 June 1995
• Docket Number: No. 94-0281,94-0281
• Citation: 38 Tex. Sup. Ct. J. 732,907 S.W.2d 472
• Parties: 38 Tex. Sup. Ct. J. 732 C.J. DOE, Individually and as Next Friend of C.G. Doe, Her minor Child, V.M. Coe, Individually, and J.M. Coe, Individually, and as Next Friends of R.M. Coe and A.C. Coe, Their Minor Grandchildren, Petitioners, v. BOYS CLUBS OF GREATER DALLAS, INC., Respondent.
• Court: Texas Supreme Court

Page 472

907 S.W.2d 472

38 Tex. Sup. Ct. J. 732

C.J. DOE, Individually and as Next Friend of C.G. Doe, Her minor Child, V.M. Coe, Individually, and J.M. Coe, Individually, and as Next Friends of R.M. Coe and A.C. Coe, Their Minor Grandchildren, Petitioners, v. BOYS CLUBS OF GREATER DALLAS, INC., Respondent.

No. 94-0281.

Supreme Court of Texas.

Argued Dec. 13, 1994.

Decided June 8, 1995.

Kip A. Petroff, Dallas, for petitioners.

John R. Robinson, Donald G. Stanford, Michael F. Pezzulli, Dallas, for respondent.

GONZALEZ, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, HECHT, ENOCH and OWEN, Justices, join.

This is a suit against a boys club for damages arising from the sexual molestation of boys by a volunteer worker. The plaintiffs brought a cause of action primarily based on negligence and the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA). TEX.BUS. & COM.CODE §§ 17.46(b)(5), 17.46(b)(23), 17.50(a). The trial court granted summary judgment for the Boys Clubs of Greater Dallas, Inc., and the court of appeals affirmed. 868 S.W.2d 942. Because we hold that the plaintiffs failed to raise fact issues on key elements of each of their claims against the Boys Club, particularly on the elements of proximate and producing cause, we affirm the judgment of the court of appeals.

I.

In 1985, Boyd Ray Mullens was convicted of the misdemeanor offense of driving while intoxicated and ordered by the court to perform sixty hours of community service. (This was Mullens's second DWI conviction. The first one occurred in California in 1974.) The Dallas County adult probation department referred Mullens to a volunteer center for assignment to a community service organization. Neither the probation department nor the volunteer center, which provides referral services solely for probationers, investigates volunteers or attempts to determine the appropriateness of a volunteer's choice of organizations. Mullens volunteered to perform his community service hours at the Boys Club in Mesquite, Texas.

The Boys Club had Mullens fill out an application. On the application, he indicated that the club should not contact his employer, a sheriff's department. The Boys Club did not contact his employer, in any other manner screen the application, or independently investigate Mullens. Mullens began working at the Boys Club in March 1986, and finished his sixty hours of service in September of the same year. He continued to volunteer at the Boys Club through the summer of 1987.

The plaintiffs are (1) the minor brothers, A.C. and R.M. Coe, (2) their grandparents and guardians, Mrs. V.M. Coe and Mr. J.M. Coe, individually and as next friends of the Coe brothers, (3) the minor, C.G. Doe, and (4) his mother, Ms. C.J. Doe, individually and as his next friend. In brief, this case arose from Mullens's sexual assaults of the three minor plaintiffs, as well as other young boys not parties to this appeal. Mullens met two of the minor plaintiffs at the Boys Club in the summer of 1986, and one minor plaintiff the following summer. He took them and their friends on various outings not sponsored by the Boys Club. During these years, Mullens also became a trusted acquaintance and family friend of the three boys' grandparents, Mr. and Mrs. Coe, and a common visitor in their home. A detailed history follows.

Prior to enrolling her grandsons at the club, Mrs. V.M. Coe telephoned the main office for the five Dallas-area Boys Clubs and spoke with a woman named Loretta. With regard to volunteers, Loretta told Mrs. Coe that the Boys Club "checked them out thoroughly." Mrs. Coe brought her grandsons, A.C. and R.M. Coe, to the Mesquite club to purchase memberships in June 1986. By the time they joined the club, Mullens had nearly finished his sixty hours of community service. The Coe brothers became acquainted with Mullens there. Mullens also visited Mr. and Mrs. Coe in their home up to ten times. Later in the summer of 1986, he proposed taking the brothers on a camping trip.

Mrs. Coe returned to the Boys Club to ask its personnel about Mullens. She was told that Mullens was a volunteer, that he worked for a sheriff's department, that the club had no complaints about his conduct, and that "he seemed to be okay." However, the Boys Club's education director emphasized that with regard to letting Mullens take the boys camping, "The Boys Club couldn't make that choice for her. She needed to make that decision for herself." Mr. and Mrs. Coe gave their permission for Mullens to take A.C. and R.M. Coe on the overnight camping trip. On the trip, after Mullens gave the two boys cigarettes, he sexually abused A.C. Coe. In the fall of 1986, he sexually abused R.M. Coe while on a fishing trip. Mullens continued to be a regular guest in the Coe home through 1988, and spent the night on many occasions.

The next summer, the Coe brothers' cousin, C.G. Doe, joined the Boys Club while he was spending the summer with Mr. and Mrs. Coe, his grandparents. Mr. Coe brought him to the club in July 1987, and purchased a membership for him. Mullens met C.G. Doe at the Boys Club through the Coe brothers. He first sexually abused C.G. Doe on a second private camping trip taken alone with the three boys later the summer of 1987. On this trip, Mullens gave the boys money in exchange for sexual contact with them. The record does not indicate that Mullens used alcohol to accomplish his assaults on any of the boys who are parties to this appeal.

The plaintiffs brought this negligence and DTPA action against the Boys Club and Mullens in June 1990. Among other claims, they alleged that the Boys Club negligently accepted Mullens as a volunteer without investigation or screening, negligently failed to supervise him, failed to disclose material information about Mullens, misrepresented that the club thoroughly investigated its volunteers, and misrepresented that the club and its workers had characteristics they did not have. The trial court granted the Boys Club's motion for summary judgment and severed the action against the club from the action against Mullens.

The court of appeals affirmed summary judgment for the Boys Club. On the negligence claims, it ruled that the Boys Club owed a duty to exercise reasonable care in selecting its workers, including volunteers such as Mullens, and that the Boys Club breached this duty. 868 S.W.2d at 949-51. However, the court of appeals held as a matter of law that the Boys Club could not reasonably foresee Mullens's assaults on the boys; in the absence of an element of proximate cause, therefore, summary judgment on the plaintiffs' negligence actions was proper. Id. at 952. With regard to the DTPA claims for failure to disclose and for misrepresentation, the court of appeals affirmed summary judgment for the Boys Club on three grounds: (1) Mrs. Coe's decision to allow her grandsons to go camping with Mullens, after inquiring at the club about him, was not a "transaction" under the DTPA; (2) the Boys Club was not aware of Mullens's two DWI convictions, so it could not be liable to the plaintiffs for failure to disclose them; and (3) although the Boys Club may have misrepresented that it thoroughly investigated volunteers, the alleged misrepresentations were only to Mrs. Coe, and her intervening inquiry to the club and other circumstances made the misrepresentations not the producing cause of the boys' injuries as a matter of law. Id. at 954-55 (citing Riojas v. Lone Star Gas Co., 637 S.W.2d 956, 960 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.)).

The plaintiffs appeal the holdings that there was no proximate cause and no producing cause as a matter of law to support the negligence and DTPA claims, respectively. A defendant is entitled to summary judgment if it disproves an essential element of the plaintiff's causes of action as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991) (a negligence case); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991) (a DTPA case). In reviewing a summary judgment, we consider the evidence in the light most favorable to the non-movant and resolve any doubt in the non-movant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Primarily because we conclude that the Boys Club proved as a matter of law that its conduct was not the cause in fact of the plaintiffs' injuries, we hold that summary judgment on the plaintiffs' negligence and DTPA claims was proper for want of evidence on the common element of actual causation. See Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 164 (Tex.1995). Where noted, we also conclude that the plaintiffs' claims fail because there was no evidence to establish other requisite elements of their causes of action. Consequently, we affirm the judgment of the court of appeals.

II.

The elements of a negligence cause of action are a duty, a breach of that duty, and damages proximately caused by the breach of duty. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990); El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). Assuming without deciding that the Boys Club owed the plaintiffs the duty to exercise reasonable care in investigating its personnel and that it breached that duty, we focus on the issue whether the Boys Club's failure to investigate, screen, or supervise its volunteers proximately caused the injuries the plaintiffs allege.

The components of proximate cause are cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). These elements cannot be established by mere conjecture, guess, or speculation. McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex.1980); Farley v. MM Cattle Co., 529 S.W.2d 751, 755 (Tex.1975). The test for cause in fact is whether the negligent "act or omission was a substantial factor in bringing about injury," without which the harm would not have occurred. Prudential, 896 S.W.2d...