Doe v. Boys Clubs of Greater Dallas, Inc.

• Decision Date: 20 January 1994
• Docket Number: No. 07-92-0113-CV,07-92-0113-CV
• Citation: 868 S.W.2d 942
• Parties: C.J. DOE, et al., Appellants, v. BOYS CLUBS OF GREATER DALLAS, INC., Appellee.
• Court: Texas Court of Appeals

Page 942

868 S.W.2d 942

C.J. DOE, et al., Appellants, v. BOYS CLUBS OF GREATER DALLAS, INC., Appellee.

No. 07-92-0113-CV.

Court of Appeals of Texas,

Amarillo.

Jan. 20, 1994.

Rehearing Denied Feb. 14, 1994.

Kip A. Petroff, Dallas, for appellants.

Patterson, Lamberty, Stanford, Walls & Dwyer, John R. Robinson, Donald G. Stanford, Dallas, for appellee.

Before DODSON, BOYD and POFF, JJ.

BOYD, Justice.

Appellants ¹ bring this appeal from a take-nothing summary judgment in favor of appellee, Boys Clubs of Greater Dallas, Inc. (the Club). In one point of error, appellants assert the district court erred in granting the summary judgment because genuine issues of material fact existed concerning each of the appellants' causes of action. For reasons hereinafter expressed, the judgment of the trial court is affirmed.

This suit arises out of a series of sexual molestations of the minor plaintiffs over a three year period from 1986 to 1988. These assaults were committed by one of the Club's volunteers, Boyd Ray Mullens (Mullens). In December 1985, Mullens was convicted in Dallas County of the misdemeanor offense of driving while intoxicated. As part of his sentence, he was ordered to complete 60 hours of community service. Mullens was directed by the Dallas County Adult Probation Department to a local volunteer center for assignment to a community service organization. The volunteer center provides referral services for probationers from the Dallas County Probation Department and from the community at large. After being interviewed at the volunteer center on February 25, 1986, Mullens agreed to serve his community service hours at the Mesquite Boys Club. He began working at the Club in March of 1986 and completed his community service hours in September of that same year.

Minor appellants A.C. Coe and R.M. Coe joined the Club in June 1986 and soon became acquainted with Mullens. Mullens met the boys' grandparents on several occasions over the following months and spent time at their home. Later that summer, Mullens, with the permission of the boys' grandparent guardian, V.M. Coe, took A.C. and R.M. Coe on an overnight camping trip. On this trip, Mullens sexually abused A.C. Coe. In the fall of 1986, he began sexually abusing R.M. Coe. Mullens, however, continued to be a regular guest in the Coe home through the summer of 1988, taking the boys on outings, attending the wedding of V.M. Coe's daughter in 1987, and even spending the night on many occasions.

In July 1987, C.G. Doe, a cousin of A.C. and R.M. Coe, joined the Club. That summer, C.G. Doe was also sexually abused by Mullens on a private camping trip. The Club, however, did not sponsor or have any connection with the camping trips involving Mullens and the Coe children.

In the spring and summer of 1988, A.C. and R.M. Coe introduced Mullens to D.L. Moe, J.K. Roe, and T.K. Roe. These minors were never members of the Club. However, the parents of D.L. Moe and the Roe boys contacted the Club to confirm that Mullens had worked there before allowing the children to go on outings with Mullens. The parents also contacted V.M. Coe to ascertain her opinion of Mullens and were told that she had a favorable opinion of him. Thereafter, during the spring and summer of 1988, Mullens sexually abused D.L. Moe, J.K. Roe, and T.K. Roe.

Appellants brought suit against the Club and Mullens in June 1990 alleging that the Club was negligent in accepting Mullens as a volunteer without conducting a proper investigation and in failing to disclose to the parents of the boys that Mullens's presence at the Club arose out of community service provisions of his court-imposed sentence for a DWI conviction. ² They further alleged the Club was negligent for failing to supervise and screen Mullens, for violations under the Texas Deceptive Trade Practices-Consumer Protection Act ³ (DTPA), and for breach of fiduciary duty. ⁴

The Club successfully moved for summary judgment on the basis that it owed no duty to appellants, that there was no proximate cause between any negligence on their part and appellants' injuries, that there was no fiduciary relationship, that the statute of limitations barred the claims of some of the parents and adult conservators, and that the DTPA did not apply. In its judgment granting the motion, the trial court severed appellants' claims against Mullens from the claims

against the Club. The validity of the judgment in favor of the Club is the only question involved in this appeal.

STANDARD OF REVIEW

It is now axiomatic that in order for a defendant to be entitled to summary judgment, he must disprove, as a matter of law, at least one of the essential elements of each of the plaintiffs' causes of action, Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991), or it must establish one or more of its defenses as a matter of law, Bryant v. Gulf Oil Corp., 694 S.W.2d 443, 445 (Tex.App.--Amarillo 1985, writ ref'd n.r.e.).

The standards for appellate review of a summary judgment are also axiomatic. The Texas Supreme Court has mandated that:

(1) The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

(2) In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

(3) Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985). Therefore, the issue on appeal from a summary judgment is whether the movant established its entitlement to summary judgment, as a matter of law, by conclusively proving that no genuine issue of material fact exists as to its cause of action or defense. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983).

Again, we note that appellants' sole point of error is that the district court erred in entering summary judgment in favor of the Club because material issues of fact were raised by the summary judgment evidence as to each of appellants' claims against the Club, i.e., negligence, breach of fiduciary duty, and violation of the DTPA. However, where a trial court has entered a summary judgment that does not specify the particular ground on which it is granted, as here, the summary judgment will be affirmed if any of the theories advanced by the movant are meritorious. Insurance Co. of N. Am. v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st Dist.] 1990, no writ).

I. NEGLIGENCE

To sustain a cause of action for negligence, it is necessary to show the existence of a duty of one party to another, a breach of that duty, and damages which were proximately caused by the breach of the duty. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987); Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975).

A. Duty of the Club

Duty is the obligation to conform to a particular standard of conduct toward another, Castillo v. Sears, Roebuck & Co., 663 S.W.2d 60, 64 (Tex.App.--San Antonio 1983, writ ref'd n.r.e.), and is the threshold inquiry in a negligence case, Graff v. Beard, 858 S.W.2d 918, 919 (Tex.1993). When no duty exists, no legal liability can arise on account of negligence. Hanselka v. Lummus Crest, Inc., 800 S.W.2d 665, 667 (Tex.App.--Corpus Christi 1990, no writ).

In determining whether a defendant owes a duty to a plaintiff, the court will consider several interrelated factors including the risk involved, foreseeability of the risk, and likelihood of injury. These factors are then weighed against the social utility of the actor's conduct and the magnitude of the burden on the defendant. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). Of all these factors, foreseeability of the risk is the "foremost and dominant consideration." Id. (citing El Chico Corp. v. Poole, 732 S.W.2d at 311). The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d at 525; Gray v. Baker & Taylor Drilling Co., 602 S.W.2d 64 65 (Tex.Civ.App.--Amarillo 1980, writ ref'd n.r.e.).

We are initially presented with the question whether the Club owed a duty to the various appellants to protect them from the conduct of a third party. The general rule is that there is no duty to protect another from the conduct of a third person. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d at 525; Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983); Restatement (Second) of Torts § 315 (1965). However, there are two exceptions to this general rule which are of concern in this case. The first is where there exists a special relationship between the defendant and the injured party or between the defendant and the third person. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d at 525; Otis Engineering Corp. v. Clark, 668 S.W.2d at 309. The second exception is when criminal conduct is the foreseeable result of a tortfeasor's negligence. Nixon v. Mr. Property Management, 690 S.W.2d at 550. In each of these instances, the defendant has a duty to prevent injuries to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby. Id. ⁵

Appellants argue that Nixon v. Mr. Property Management, supra, is dispositive of the duty question in this case. We disagree. In Nixon, the defendants, a property owner and manager, were sued for negligence after a minor was abducted off the street, taken to the defendants' abandoned apartment complex and raped. In reversing the trial court's summary judgment for the defendants, the Texas Supreme Court found that the defendants' duty was established, as a matter of law, by a city ordinance and that the summary judgment evidence showed a breach of that duty. Nixon v. Mr. Property Management, 690 S.W.2d at 549. Nixon...