Washington v. U.S. Dept. of Housing & Urban Dev.
| Citation | 953 F.Supp. 762 |
| Decision Date | 05 August 1996 |
| Docket Number | Civil Action No. 3:94-CV-1859-P. |
| Parties | Miranda WASHINGTON, Individually and as Next Friend of Tamika Washington, Plaintiff, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT d/b/a Village of Eastgate Property, STM Mortgage Company, Barron Builders & Management Company, Borg-Warner Protective Services Corporation d/b/a Wells Fargo Guard Services, Defendants. STM MORTGAGE COMPANY, Third-Party Plaintiff, v. METRIC REALTY SERVICES, L.P., Third-Party Defendant. |
| Court | U.S. District Court — Northern District of Texas |
Janette Johnson, Janette Johnson & Associates, Dallas, TX, for Plaintiff.
Kyle Moore, Vial Hamilton Koch & Knox, Dallas, TX, Paula Billingsley, Asst. U.S. Atty., N.D. of Texas, Dallas, TX, for Defendants.
Now before the Court are:
1. Defendant Borg-Warner Protective Services Corporation's Motion for Summary Judgment, Motion to Dismiss and Memorandum in Support filed April 7, 1995;
2. Plaintiff's Response to Defendant Borg-Warner's Motion for Summary Judgment and Motion to Dismiss filed April 1, 1996;
3. Defendant Borg-Warner Protective Services Corporation's Reply Brief in Support of Motion for Summary Judgment and Motion to Dismiss filed April 15, 1996;
4. Motion for Final Summary Judgment of Defendant STM Mortgage Company and Brief in Support Thereof filed July 13, 1995;
5. Plaintiff's Response to Defendant STM Mortgage's Motion for Summary Judgment filed December 15, 1995;
6. Reply Brief of Defendant STM Mortgage Company to Plaintiff's Response to Motion for Summary Judgment filed January 2, 1996;
7. Federal Defendants' Motion to Dismiss Complaint, or in the Alternative, Motion for Summary Judgment filed October 5, 1994;
8. Plaintiff's Response to Defendant United States Department of Housing and Urban Development's Motion to Dismiss filed November 8, 1994; and
9. Federal Defendants' Reply to Plaintiff's Opposition to Federal Defendants' Motion to Dismiss filed November 22, 1994.
Plaintiff, Miranda Washington is the mother and next friend of Tamika Washington, a minor. On January 8, 1992, Plaintiff, Tamika Washington, and other family members moved into the property known as the Village of Eastgate Apartments (the "Property"), located in Garland, Texas. Based on conversations with leasing agents at the Property, and based on her own observations of the Property, Plaintiff believed the Property was a safe place to reside.
In August 1992, while a resident of the Property, Tamika Washington was the victim of an aggravated assault, specifically a rape, by Terry Wayne Howard. The rape occurred within the apartment being occupied by Terry Wayne Howard.1 As a result of the rape, Tamika Washington became pregnant.
In late 1990, Defendant STM Mortgage Company ("STM") became the mortgage holder for the Property. After foreclosing on the Property in April 1992, STM acquired the Property and executed a Management Agreement with Metric Property Management to provide residential management services for the Property. The Management Agreement did not address security issues or procedures for the Property. On July 7, 1992, Defendant STM conveyed the Property to Defendant United States Department of Housing and Urban Development d/b/a Village of Eastgate Apartments ("HUD").
Defendant HUD currently owns and operates the Property. In August 1992, at the time of the assault, Defendant Borg-Warner Protective Services Corporation d/b/a Wells Fargo Guard Services ("Borg-Warner") was under contract with HUD to provide security services for the Property. Pursuant to the contract, Borg-Warner provided 24-hour-a-day security against loss or damage to the government property and its contents. The contract specifically states that guards "will not ... offer protection for residents." (Def. Borg Warner's Mot. S.J. Ex. B at C-1, C-3). Despite Borg-Warner's contentions that it was on the premises solely to secure government property, Plaintiff claims that prior to the incident at issue, security personnel employees had several contacts with Tamika Washington regarding her safety, each of which occurred on August 11, 1992.
Defendant Barron Builders & Management Company ("Barron") was, at the time of the assault, serving as the property manager for the Property. Under the terms of its contract with HUD, Barron was required to provide the necessary professional and technical personnel, materials, equipment, supplies and facilities to manage the Property. (HUD Ex. A, Section C.1.1.) Further, Barron's tasks as property manager included keeping the physical maintenance of the Property in a decent, safe and sanitary condition. (HUD Ex. A, Sec. C.2.3.11; C.2.3.14; and 2.3.21.17.)
Three of the Defendants now move for dismissal and/or summary judgment of the claims alleged against them.
Defendant Borg-Warner has moved to dismiss the following claims against it pursuant to FED.R.CIV.P. 12(b)(6): fraud, fraud in the inducement, intentional misrepresentation, negligent misrepresentation, intentional infliction of emotional distress and Deceptive Trade Practices Act violations ("DTPA").
A plaintiff's complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failing to state a claim for which relief can be granted. In ruling on a Rule 12(b)(6) motion to dismiss, the allegations of the complaint should be construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In considering a motion to dismiss under Rule 12(b)(6), the court must accept all well-pleaded facts as true. Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir.1974); FDIC v. Harrington, 844 F.Supp. 300 (N.D.Tex.1994). However, "conclusory allegations and unwarranted deductions of fact are not admitted as true." Harrington, 844 F.Supp. at 302.
Defendant Borg-Warner, in its Motion to Dismiss, argues that the allegations in Plaintiffs Second Amended Complaint fail to meet the threshold requirements of Texas law for a claim of intentional infliction of emotional distress ("IIED").
The Texas Supreme Court, in Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993), adopted the approach of the Restatement (Second) Torts for IIED. Under this approach, the elements of this tort are as follows: 1) the defendant acted intentionally or recklessly; 2) the conduct was extreme and outrageous; 3) the actions of the defendant caused the plaintiff mental distress and 4) the mental distress was severe. Id. at 622.
Regarding the element of outrageous conduct, the supreme court has stated:
[L]iability for outrageous conduct should be found only where the conduct has been so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and totally intolerable in a civilized community.
Id. at 621. The supreme court further stated that "it is for the court to determine in the first instance whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.1993).
Assuming the allegations set forth in Plaintiff's pleading are true and that a reasonable jury would fully believe all such allegations, the described conduct could not be construed as going "beyond all possible bounds of decency," nor as being so extreme to be considered "atrocious and totally intolerable in a civilized society."
Plaintiff, in her Second Amended Complaint has alleged that Borg-Warner contracted to provide security services for the Property (¶ 19). She then makes global allegations as to each of the Defendants, including Borg-Warner. She has alleged that Borg-Warner (and the other Defendants) represented to Plaintiff that: (1) the apartment complex was a peaceful and safe place (¶ 24(4)); (2) the Property screened potential residents to insure that the Property was peaceful and safe (¶ 24(3)); and (3) the Property had 24-hour security (¶ 24(5)). Plaintiff alleges that despite these assurances, Defendants, including Borg-Warner, failed to warn tenants of criminal activity on the Property and the dangers of living at the Property, even though they had knowledge of such activity and danger (¶¶ 37, 40); and undertook negligent and grossly negligent acts or omissions in securing the safety of its residents (¶ 39), essentially failing to adequately secure the Property (¶ 35).
Although the facts in this case are decidedly tragic and highly-charged with emotion, the Court concludes that Defendant Borg-Warner's behavior, as alleged by Plaintiff, does not reach the level of extremity or outrageousness as defined by the courts of Texas. E.g., Cantu v. Rocha, 77 F.3d 795, 810 (5th Cir.1996) (); Mattix-Hill v. Reck, 923 S.W.2d 596 (Tex.1996) (); Wyatt v. Kroger Co., 891 S.W.2d 749 (Tex.App.—Fort Worth 1994, no writ) (defendant grocery store's ineffective action to cure situation when plaintiff's daughter witnessed perpetrator's act of indecent exposure was...
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