Rodriguez v. Spencer

• Court: Texas Court of Appeals
• Writing for the Court: TAFT
• Citation: Rodriguez v. Spencer, 902 S.W.2d 37 (Tex. App. 1995)
• Decision Date: 25 May 1995
• Docket Number: No. 01-94-00938-CV,01-94-00938-CV
• Parties: Nancy RODRIGUEZ, individually and on Behalf of The Estate of Paul Broussard, Appellant, v. Mary Anne SPENCER and Thomas Earl Randle, Appellees. (1st Dist.)

Page 37

902 S.W.2d 37

Nancy RODRIGUEZ, individually and on Behalf of The Estate of Paul Broussard, Appellant, v. Mary Anne SPENCER and Thomas Earl Randle, Appellees.

No. 01-94-00938-CV.

Court of Appeals of Texas Houston (1st Dist.).

May 25, 1995.

Rehearing Overruled June 22, 1995.

Larry S. Lee, Houston, Clinard J. Hanby, The Woodlands, for appellant.

Britton B. Harris, Gary M. Jewell, John P. Venzke, Houston, for appellees.

Before COHEN, MIRABAL and TAFT, JJ.

OPINION

TAFT, Justice.

This case involves the extent of parental liability when minors commit intentional torts resulting in personal injuries. Appellant, Nancy Rodriguez, individually and on behalf of the estate of her adult son, Paul Broussard, appeals from a take-nothing summary judgment granted in favor of appellee, Mary Anne Spencer, who is the parent of a 17-year-old minor child implicated in Broussard's death. In one point of error, ¹ Rodriguez argues that the trial court erred in granting summary judgment. We affirm.

Summary of Facts

In the early morning hours of July 4, 1991, Paul Broussard was beaten and stabbed to death by four adults and five minors in a "gay-bashing" incident. The minors included Spencer's son, Brian Douglas Spake.

Broussard's mother, Rodriguez, sued the participants, Spencer and the other parents of the minor children, and a nightclub where the group allegedly became intoxicated immediately prior to the assault. Rodriguez' causes of action included assault and battery, wrongful death, survival, negligence, and violation of the Dram Shop Act. ²

The negligence claims against the parents specifically addressed: (1) failure to adequately supervise; (2) failure to provide reasonable discipline; (3) failure to impose a reasonable curfew; and (4) negligently permitting a child to engage in conduct likely to cause injury to third parties. The claim against Spencer added negligent entrustment of a motor vehicle and failure to exercise the duties of a managing conservator. Summary judgment was granted in favor of Spencer, who was severed from the case.

Standard of Review

A defendant is entitled to judgment when the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact about one or more essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); TEX.R.CIV.P. 166a(c). In a negligence case, the plaintiff must establish: (1) a legal duty owed by one person to another; (2) breach of that duty; and (3) damages proximately caused by the breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990); Dixon v. Houston Raceway Park, Inc., 874 S.W.2d 760, 762 (Tex.App.--Houston [1st Dist.] 1994, no writ). Once the defendant negates an essential element of the plaintiff's claim, the plaintiff must present evidence raising a fact issue precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Goldberg v. United States Shoe Corp., 775 S.W.2d 751, 752 (Tex.App.--Houston [1st Dist] 1989, writ denied).

In deciding whether there is a disputed fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Every reasonable inference is indulged in favor of the nonmovant and any doubts resolved in the nonmovant's favor. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).

When a trial court's order does not specify the grounds relied on for its ruling, the summary judgment may be affirmed on any meritorious theory advanced in the motion. Insurance Co. of N. Am. v. Security Ins. Co., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st Dist.] 1990, no writ). Here, the summary judgment is not specific, but the only ground urged in Spencer's motion for summary judgment is the lack of duty, an essential element of Rodriguez' negligence claim.

Scope of Parental Duty

Rodriguez maintains that summary judgment in favor of Spencer is improper because a parent's duty to supervise, control, and discipline children arises from the parent-child relationship, regardless of foreseeability. Spencer argues that she owes Rodriguez no duty because the actions of her child were unforeseeable.

1. Statutory Authority

a. Section 12.04 of the Family Code

Rodriguez contends that a parent's duty to third parties is created by TEX.FAM.CODE ANN. § 12.04(2) (Vernon Supp.1995). Section 12.04, states, in pertinent part, that a parent has "the duty of care, control, protection, and reasonable discipline of the child." (Emphasis added.) Rodriguez contends this provision is especially applicable to Spencer, whose divorce decree specifically delegates this duty to her as managing conservator.

Unlike other provisions of the Family Code, section 12.04 is limited to the parent-child relationship, not the parent-third party relationship. See, e.g., TEX.FAM.CODE ANN § 33.01 (Vernon 1986) ³ (protecting property owners from malicious or negligent children); id. § 51.01 (protecting the public from delinquent children). In addition, the cases applying section 12.04 have done so only when a parent faces criminal liability for acts or omissions toward his or her own child. See, e.g., Ahearn v. State, 588 S.W.2d 327 (Tex.Crim.App.1979); Harrington v. State, 547 S.W.2d 616 (Tex.Crim.App.1977). We find that section 12.04 does not establish a parent's duty to control or discipline children for the benefit of third parties.

b. Municipal Ordinances

As an additional source of parental third-party duty, Rodriguez refers to the widespread use of municipal curfews that impose criminal penalties upon parents when they do not control their children. We do not find the existence of these ordinances dispositive, especially in this case, where Rodriguez did not allege that an ordinance had been violated. The mere existence of these ordinances elsewhere did not create a duty on the defendant to follow them. See Blount v. Bordens Inc., 892 S.W.2d 932, 953 (Tex.App.--Houston [1st Dist.] 1994, writ requested) and case cited therein (Continental Oil Co. v. Simpson, 604 S.W.2d 530 (Tex.Civ.App.--Amarillo 1980, writ ref'd n.r.e.)).

c. Summary

We do not find a source of third-party parental duty in the Family Code, municipal ordinances, or any other statute. We therefore turn to the issue of duty in the common-law context.

2. Common Law Authority

a. Test to Establish Duty

The threshold inquiry in a negligence action is whether the defendant owed a duty to the plaintiff. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). If there is no legal duty, the defendant cannot be liable for negligence. Barnes v. Wendy's Int'l, Inc., 857 S.W.2d 728, 729 (Tex.App.--Houston [14th Dist.] 1993, no writ). The existence of a duty is a question of law the court must decide based on the specific facts of the case. Mitchell v. M-K-T R.R., 786 S.W.2d 659, 662 (Tex.) cert. denied, 498 U.S. 896, 111 S.Ct. 247, 112 L.Ed.2d 205 (1990); Lawson v. B Four Corp., 888 S.W.2d 31, 33 (Tex.App.--Houston [1st Dist.] 1994, writ denied); Shell Oil Co. v. Humphrey, 880 S.W.2d 170, 175 (Tex.App.--Houston [14th Dist.] 1994, writ denied).

To determine whether a duty exists, courts apply a risk-utility balancing test. Way v. Boy Scouts of Am., 856 S.W.2d 230, 234 (Tex.App.--Dallas 1993, writ denied). The court must consider several factors, including risk, foreseeability, and likelihood of injury weighed against the social utility of the defendant's conduct, the magnitude of the burden of guarding against the injury and consequences of placing that burden on the defendant. Phillips, 801 S.W.2d at 525; Mitchell, 786 S.W.2d at 662. Foreseeability is the most significant of these factors. Phillips, 801 S.W.2d at 525; Mitchell, 786 S.W.2d at 662.

The test for foreseeability is what one should, under the circumstances, reasonably anticipate as the consequences of one's conduct. Way, 856 S.W.2d at 234; McCullough v. Amstar Corp., 833 S.W.2d 312, 315 (Tex.App.--Amarillo 1992, no writ) (quoting City of Dallas v. Maxwell, 248 S.W. 667, 670 (Tex.Comm'n App.1923, holding approved)). Foreseeability does not require that a person anticipate the precise manner of injury. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992).

b. Foreseeability as an Element of Parental Duty

In determining the existence of duty by questioning foreseeability, the courts have concluded that there is no duty to prevent the criminal actions of a third person who does not act under the defendant's supervision or control unless the criminal conduct is a foreseeable result of the defendant's negligence. Lawson, 888 S.W.2d at 35; La Fleur v. Astrodome-Astrohall Stadium, 751 S.W.2d 563, 564 (Tex.App.--Houston [1st Dist.] 1988, no writ). Moreover, there is no duty to control the conduct of third persons absent a special relationship between the actor and the third person, such as employer-employee, independent contractor-contractee, and parent-child. Phillips, 801 S.W.2d at 525; DeLuna v. Guynes Printing Co., 884 S.W.2d 206, 208 (Tex.App.--El Paso 1994, writ denied). However, the existence of a special relationship is not controlling. See, e.g., DeLuna, 884 S.W.2d at 209-10 (finding no employer-employee duty absent an affirmative act of control).

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. ⁴ Richardelle, 528 S.W.2d at 285; Moody v. Clark, 266 S.W.2d 907, 912 (Tex.Civ.App.--Texarkana 1954, writ ref'd n.r.e.). As a general rule, minors are civilly liable for their own torts. Williams v. Lavender, 797 S.W.2d 410, 412 (Tex.App.--Fort Worth 1990, writ denied); Brown v. Dellinger, 355 S.W.2d 742, 746 (Tex.Civ.App.--Texarkana 1962, writ ref'd n.r.e.).

A parent may be vicarously liable for the minor's torts under respondeat superior or joint enterprise. See de Anda v. Blake, 562 S.W.2d 497, 499 (Tex.Civ.App.--San...