Affirmed in Part, Reversed and Remanded in Part, and Opinion filed June 26,
2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00515-CV

 MINDI M., INDIVIDUALLY AND AS NEXT FRIEND OF S.M., A CHILD,
                          Appellant
                                         V.

     THE FLAGSHIP HOTEL, LTD, FLAGSHIP HOSPITALITY, INC.,
       INDIVIDUALLY AND D/B/A FLAGSHIP HOTEL, Appellees

                    On Appeal from the 405th District Court
                           Galveston County, Texas
                      Trial Court Cause No. 10-CV-2369

                                    OPINION

      Mindi M. sued the Flagship Hotel and a related entity (collectively, the
“Hotel”) after her minor son, S.M., was sexually abused in the Hotel by a member
of the Hotel’s staff. Mindi asserted claims sounding in both tort and contract, but
the trial court dismissed them all by way of summary judgment. On appeal, we
hold that the trial court erred by dismissing a claim for negligent hiring, retention,
and supervision. Based on our review of the record, we conclude that there is more
than a scintilla of evidence to show that the child’s injuries were proximately
caused by a breach of the Hotel’s duty of reasonable care. As to this cause of
action only, we reverse the trial court’s judgment and remand for additional
proceedings consistent with this opinion. In all other respects, we affirm.

                                 BACKGROUND

      William M. and his two sons took a vacation to Galveston Island in the
summer of 2008; Mindi did not accompany them. The family chose to stay at the
Hotel, which markets itself specifically towards vacationing families. As they were
checking into the Hotel, William’s older son, S.M., noticed that the Hotel’s
bellman was sending him nonverbal signals from his post at the main entrance. The
bellman was nodding his head upwards and “mouthing words” in S.M.’s direction.
S.M. ignored the bellman and went to his room.

      Later that day, S.M. left the Hotel to take a walk on the beach. The bellman
found S.M. wandering the premises outside, alone and smoking a cigarette. S.M.
was just fifteen years old. The bellman approached S.M. and told him that there
was a better place inside the Hotel where he could finish his cigarette. The bellman
led S.M. to the Hotel’s banquet room, which was locked and empty, but the
bellman knew a way inside. Once he and S.M. had entered the room, the bellman
secured the doors and turned off the lights.

      S.M. felt uncomfortable inside the dark room. He sat down at a table near
the entrance, where there was a small window allowing light to pass through. The
bellman took a seat nearby and removed his pants, exposing his penis. The bellman
offered S.M. money to touch his penis, but S.M. refused and tried to leave. The
bellman then grabbed S.M. and forcibly put S.M.’s hand on his penis. S.M. quickly
withdrew his hand and the bellman began to masturbate. The bellman eventually
                                          2
ejaculated on the table in front of them. As the bellman stood up, S.M. ran to the
door and fled. Police were called shortly thereafter.

      At the time of the incident, the bellman had been working for the Hotel for
less than three months. He was hired at the beginning of the summer season upon
the recommendation of another Hotel employee. No criminal background check
had been performed. Had the Hotel inquired into the bellman’s criminal history, it
would have discovered a lengthy record of arrests and convictions. Before his
hiring, the bellman had four convictions for possession of a controlled substance,
two convictions for assault causing bodily injury, one conviction for evading
arrest, and another conviction for theft.

      Records from the Texas Department of Criminal Justice revealed other bad
acts including robbery, aggravated assault with a deadly weapon, auto theft, and
criminal trespassing. These acts were allegedly committed when the bellman was a
juvenile. The records also identified two instances of indecency with a child. On
one occasion, the bellman allegedly fondled the breasts of a fifteen-year-old girl,
and on the other, he exposed himself to a fourteen-year-old girl. The records do not
contain dates for these offenses, but the chronology suggests that they occurred
sometime between 1990 and 2005. The records further disclose at least six
citations for sexual misconduct, all occurring between 1994 and 2002 when the
bellman was incarcerated.

      Mindi filed this lawsuit on behalf of herself and her son, asserting a primary
cause of action for negligent hiring, retention, and supervision. Additional claims
for breach of contract and gross negligence were also raised. In her request for
relief, Mindi sought exemplary damages and mental anguish damages, among
others.



                                            3
      The Hotel moved for summary judgment on traditional and no-evidence
grounds. In its traditional motion, the Hotel asserted that Mindi’s negligence-based
claim should fail because the Hotel had no duty to perform a criminal background
check on its employees. In its no-evidence motion, the Hotel asserted that Mindi
had no evidence in support of all of her claims, including negligence. The Hotel
also challenged the legal theories for any recovery of exemplary damages and
mental anguish damages. Mindi filed a response, but the trial court granted
summary judgment to the Hotel and dismissed the suit. Mindi now appeals.

                           STANDARD OF REVIEW

      We review the trial court’s summary judgment de novo. See Provident Life
& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In a traditional
motion for summary judgment, the movant carries the burden of showing that there
is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law. See Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. &
Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). Once the
movant produces sufficient evidence conclusively establishing its right to summary
judgment, the burden of proof shifts to the nonmovant to present evidence
sufficient to raise a fact issue. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195,
197 (Tex. 1995). We consider all of the evidence in the light most favorable to the
nonmovant, indulging every reasonable inference and resolving any doubts in the
nonmovant’s favor. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex. 2005).

      In a no-evidence motion for summary judgment, the movant asserts that
there is no evidence of one or more essential elements of the claims for which the
nonmovant bears the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The burden rests with the

                                         4
nonmovant to present evidence raising a genuine issue of material fact as to the
elements specified in the motion. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,
582 (Tex. 2006). We will sustain a no-evidence motion for summary judgment
when (1) there is a complete absence of evidence of a vital fact, (2) the court is
barred by rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no
more than a mere scintilla, or (4) the evidence conclusively establishes the opposite
of the vital fact. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
The evidence is insufficient if it is so weak as to do no more than create a mere
surmise or suspicion that the challenged fact exists. See Akin, Gump, Strauss,
Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex.
2009).

                                 NEGLIGENCE

                      I.   The Hotel’s No-Evidence Motion

      We begin with the Hotel’s no-evidence motion and the arguments regarding
Mindi’s claim for negligent hiring, retention, and supervision. We first note that
this is not the type of tort that depends on proof of an employee performing a
negligent or intentional act within the course of his employment. See Verinakis v.
Med. Profiles, Inc., 987 S.W.2d 90, 97 (Tex. App.—Houston [14th Dist.] 1998,
pet. denied). This tort arises instead from the simple negligence of the employer.
An employer is negligent if the employer hires, retains, or supervises an employee
whom the employer knows, or by the exercise of reasonable care should have
known, is unfit or incompetent, and whose unfitness or incompetence creates an
unreasonable risk of harm to others because of the employee’s job-related duties.
See Soon Phat, L.P. v. Alvarado, 396 S.W.3d 78, 100–01 (Tex. App.—Houston



                                         5
[14th Dist.] 2013, pet. denied); CoTemp, Inc. v. Houston W. Corp., 222 S.W.3d
487, 492 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (plurality op.).

      As with any negligence case, the plaintiff must prove the existence of a legal
duty, a breach of that duty, and damages proximately caused as a result of the
breach. See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d
794, 798 (Tex. 2004). When a claim of negligent hiring is based on a failure to
screen, the plaintiff must further show that a reasonable employer would not have
hired the employee had a background check been performed, or that a background
check would have put the employer on notice that hiring the employee would
create an unreasonable risk of harm to others. See TXI Transp. Co. v. Hughes, 306
S.W.3d 230, 240 (Tex. 2010); Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 796–
97 (Tex. 2006).

                                         Duty

      The Hotel’s no-evidence motion attacks every element of Mindi’s
negligence cause of action. Beginning with duty, the Hotel asserts that Mindi has
no evidence that “the employer owed the plaintiff a legal duty to hire, supervise,
train, or retain competent employees.”

      The existence of a duty is a question of law for the court to decide. See
Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997). Contrary to the Hotel’s
suggestions, we have routinely recognized that an employer has a duty to hire
competent employees. See, e.g., Soon Phat, 396 S.W.3d at 100–01; CoTemp, 222
S.W.3d at 492; Verinakis, 987 S.W.2d at 97. The Texas Supreme Court has also
observed that this duty is “absolute” and “nondelegable.” See Fort Worth Elevators
Co. v. Russell, 123 Tex. 128, 135–36, 70 S.W.2d 397, 401 (1934), overruled on
other grounds by Wright v. Gifford-Hill & Co., 725 S.W.2d 712 (Tex. 1987).
Based on our established precedent, we conclude that when an employer such as
                                          6
the Hotel undertakes to hire an employee, the employer must exercise reasonable
care to see that the employee is competent and fit for the job.

                                        Breach

      To support a finding of breach, Mindi produced evidence from a security
expert who explained the operations of a reasonable hotel. The expert asserted that
“[i]t is a generally accepted practice in private industry, including hospitality, to
perform extensive pre-employment background checks, including, but not limited
to, criminal history checks of applicants whose eventual positions will give them
unsupervised access to guests and/or guest rooms.” According to the expert, these
positions include that of a bellman.

      The Hotel did not perform any sort of pre-employment background check in
this case. Instead, it relied solely on the recommendation of another employee
when it hired the bellman. The Hotel suggests that it acted reasonably because the
industry standard only requires background checks on upper level employees, such
as managers. This is a question of fact for the jury to decide. Based on the
testimony from Mindi’s security expert, a jury could determine that the Hotel did
not act as a reasonable hotel should. Accordingly, there is more than a scintilla of
evidence to show that the Hotel breached its duty of care.

                                       Causation

      The Hotel asserts that there is no evidence that S.M.’s injuries, if any, were
proximately caused by a breach of its duty of care. The elements of proximate
cause are cause in fact and foreseeability. See Doe v. Boys Club of Greater Dallas,
Inc., 907 S.W.2d 472, 477 (Tex. 1995). Cause in fact means that the act or
omission was a substantial factor in bringing about the injury, and without it harm
would not have occurred. See Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.


                                           7
1992). Foreseeability means that the actor, as a person of ordinary intelligence,
should have anticipated the dangers that his negligent act or omission created for
others. See D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). This test
requires “only that the general danger, not the exact sequence of events that
produced the harm, be foreseeable.” See Timberwalk Apartments, Partners, Inc. v.
Cain, 972 S.W.2d 749, 756 (Tex. 1998); Walker v. Harris, 924 S.W.2d 375, 377
(Tex. 1996).

      Mindi raised a fact question as to whether the Hotel’s failure to screen was
the cause in fact of S.M.’s injuries. When confronted with the bellman’s criminal
record, the Hotel’s manager testified that she never would have hired the bellman
because of the risks he posed to guests, and to children in particular.

      The Hotel contends that it could not have foreseen an attack on S.M.
because, even if a background check had been performed, it would not have
revealed “any prior arrests or convictions for sexual assault or sexual misconduct.”
As an initial matter, we disagree with the notion that intentional misconduct is
foreseeable only with formal proof of an arrest or conviction for a specific type of
offense. The Texas Supreme Court has recognized that a risk of harm may be
foreseeable based solely on the knowledge that a person has been accused of
intentional misconduct. See Golden Spread Council, Inc. No. 562 of the Boy Scouts
of Am. v. Akins, 926 S.W.2d 287, 290–92 (Tex. 1996) (children complained that a
scoutmaster had been molesting young boys). The relevant inquiry is whether
“anything found in a background check” would have placed the employer on
notice that hiring the employee would create an unreasonable risk of harm to
others. See TXI Transp. Co., 306 S.W.3d at 240.

      Mindi produced more than a scintilla of evidence to show that her son’s
injuries were proximately caused by the Hotel’s failure to screen. The bellman’s

                                          8
criminal records revealed recent convictions in 2004 and 2007 for assault causing
bodily injury. Other records from the Texas Department of Criminal Justice
showed that the bellman had been cited at least six times for sexual misconduct
between 1994 and 2002, during the time that he was incarcerated. The same
records also contained two allegations of indecency with a child, and in one of
these allegations, the bellman was specifically accused of having exposed himself
to a fourteen-year-old girl. Although no date was attached to this particular
allegation, the Hotel’s manager agreed that the event most likely occurred before
the bellman was hired, considering the overall chronology of the records. Based on
this evidence, the Hotel could have reasonably foreseen that the bellman might
commit similar acts of physical or sexual misconduct if he were afforded a special
opportunity for such misconduct. See Golden Spread Council, 926 S.W.2d at 290–
92.

                                    Damages

      The Hotel finally asserts that there is no evidence of damages, specifically
mental anguish and pain and suffering. Although Mindi responded to both of these
damages points in the trial court, she has only appealed the issue of mental
anguish. We accordingly limit our review to just this measure of actual damages.

      Generally, mental anguish is only compensable if it causes a substantial
disruption in daily routine or a high degree of mental pain and distress. See
Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex. 2013). To support an award of
mental anguish damages, there must be evidence of the nature, duration, and
severity of the mental anguish. See Parkway Co. v. Woodruff, 901 S.W.2d 434, 444
(Tex. 1995). The evidence must also demonstrate “more than mere worry, anxiety,
vexation, embarrassment, or anger.” Id.



                                          9
       Mindi produced the deposition testimony of S.M.’s psychologist to support
her son’s claim for mental anguish damages. According to the psychologist, S.M.
exhibited numerous symptoms consistent with posttraumatic stress disorder. These
symptoms included “intrusive, disturbing recollections of the event, recurrent
distressing dreams, and intense emotional reactions when confronted by triggers
that are reminiscent of the event.” S.M. felt terrified after the incident “because he
was afraid the man knew where he lived and might come after him.” The
psychologist also found that the incident had made S.M. hypervigilant and
emotionally detached.

       The psychologist further noted that S.M. has experienced some difficulty in
coming to terms with his sexual abuse. Before the incident, S.M. struggled
somewhat with depression and drugs, but after the abuse, his drug dependencies
were    greatly   exacerbated.   S.M.    began    using    hard    drugs,   including
methamphetamines, “to escape his thoughts and numb his emotional pain.” He
eventually entered a rehabilitation center, where counselors addressed his
substance abuse and his depression, but not the trauma from the sexual abuse. S.M.
was discharged and remained sober for several weeks, but then he relapsed.

       The psychologist ultimately concluded that S.M. still has “significant
psychological difficulties as a result of the sexual assault.” She recommended a
treatment plan that included weekly therapy sessions over a period of two years.
We conclude that this testimony represents some evidence of the high degree of
mental pain and distress needed to support a claim for mental anguish damages.
See Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 233 (Tex. 2011) (in case where
cemetery operator moved a casket without the family’s consent, there was
sufficient evidence to support widow’s claim of mental anguish where widow
testified that she could not sleep, had burning sensation in her stomach, was fearful

                                         10
of what might happen to her when she was buried, and required medication for
anxiety and depression); Adams v. YMCA of San Antonio, 265 S.W.3d 915, 918
(Tex. 2008) (per curiam) (in case where a child was sexually abused by a camp
counselor, there was sufficient evidence to support award of mental anguish
damages where expert testified that the child experienced “phobic anxiety” and
engaged in other repressive behaviors).

      Viewing the evidence in the light most favorable to the nonmovant, we
conclude that Mindi raised a fact issue to support every element of her negligence-
based claim. Therefore, we hold that the trial court erred by dismissing the claim
on no-evidence grounds.

                      II.   The Hotel’s Traditional Motion

      We briefly respond to the Hotel’s traditional motion for summary judgment,
which contains an additional argument regarding the existence of a legal duty. The
Hotel contends that it is entitled to judgment as a matter of law because no court in
Texas has yet decided that a hotel or other innkeeper owes a duty, categorically, to
conduct a background check on prospective employees. In the absence of such a
court decision, the Hotel argues that no duty exists.

      The Hotel’s reasoning is not dispositive. The court determines the applicable
duty, and we have consistently held in negligent hiring cases that the employer’s
duty is one of reasonable care. See Soon Phat, 396 S.W.3d at 100–01; CoTemp,
222 S.W.3d at 492; Verinakis, 987 S.W.2d at 97; accord Scott Fetzer Co. v. Read,
945 S.W.2d 854, 866 (Tex. App.—Austin 1997) (the employer “had a duty to take
reasonable precautions to prevent or deter its distributors from hiring persons with
histories of crime, violence, or sexually deviant behavior”), aff’d, 990 S.W.2d 732
(Tex. 1998). We have no reason for imposing a more onerous duty in cases
involving hotels, and we expressly disavow any notion of having done so here.
                                          11
                          BREACH OF CONTRACT

      We now consider Mindi’s claim for breach of contract. In her live pleading,
Mindi alleged that the Hotel owed a contractual obligation to provide S.M. and his
father with a quiet, safe, and peaceful environment, “free of assault, sexual or
otherwise, and/or injury of being a victim of any misdemeanor or felony act.” The
Hotel moved for summary judgment on no-evidence grounds, challenging whether
there was any evidence to support either the existence of a contract or a breach of
that contract.

      Mindi argues that a valid, enforceable contract was created when S.M.’s
father paid the Hotel in exchange for a key to a private room. Mindi has not
produced a written copy of this contract, nor has she identified any promises made
by the Hotel during this exchange. In her briefing, Mindi simply argues that the
Hotel breached a contract when it violated an “implied” obligation to protect its
guests from crime and injury.

      The duty proposed by Mindi is not recognized under Texas law. A hotel or
innkeeper is not an insurer of its guests or their safety. See Walkoviak v. Hilton
Hotels Corp., 580 S.W.2d 623, 625 (Tex. Civ. App.—Houston [14th Dist.] 1979,
writ ref’d n.r.e.); Nixon v. Royal Coach Inn of Houston, 464 S.W.2d 900, 902 (Tex.
Civ. App.—Houston [14th Dist.] 1971, no writ). A hotel’s responsibility to its
guests is limited to the exercise of reasonable care, and this duty is imposed by
law, not contract. See Burrous v. Knotts, 482 S.W.2d 358, 360 (Tex. Civ. App.—
Tyler, no writ). Because Mindi has not produced any evidence that the Hotel
breached a duty independent from one sounding in tort, the trial court correctly
granted summary judgment on her breach of contract claim. See Clancy v. Barker,
131 F. 161, 166 (8th Cir. 1904) (rejecting a claim that a hotel breached a contract
by failing to meet an implied duty to protect the guest against the willful or

                                        12
negligent acts of the hotel’s employee); Richardson v. Bigelow Mgmt., Inc., No.
05-06-00213-CV, 2007 WL 1139775, at *4 (Tex. App.—Dallas Apr. 18, 2007, no
pet.) (mem. op.) (rejecting a breach of contract claim against a hotel where the
guest’s allegation of property damage sounded in tort, not contract).

                             GROSS NEGLIGENCE

      To recover on a claim of gross negligence, the plaintiff must prove two
elements: (1) viewed from the standpoint of the defendant at the time of the
occurrence, the defendant’s act or omission involved an extreme degree of risk,
considering the probability and magnitude of the potential harm to others; and
(2) the defendant had actual, subjective awareness of the risk involved, but
nevertheless proceeded with conscious indifference to the rights, safety, or welfare
of others. See Tex. Civ. Prac. & Rem. Code § 41.001(11); Lee Lewis Constr., Inc.
v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). Extreme risk does not mean a
remote possibility of injury or even a high probability of minor harm, but rather the
likelihood of serious injury to the plaintiff. See U-Haul Int’l, Inc. v. Waldrip, 380
S.W.3d 118, 137 (Tex. 2012). Actual awareness focuses on the defendant’s state of
mind. The plaintiff must prove that the defendant knew about the peril but did not
care. See La.-Pac. Corp. v. Andrade, 19 S.W.3d 245, 246–47 (Tex. 1999).

      The Hotel asserted in its motion for summary judgment that Mindi had no
evidence to support either element of gross negligence. In response, Mindi cited
testimony from a hotel manager that it would be a “good practice” to conduct a
background check on all employees. Mindi also claimed that the hotel manager
was aware of the extreme risks of hiring this bellman in particular, but Mindi cited
to no affidavit, deposition, or written discovery in support of this assertion. Based
on our review of the record, the evidence conclusively showed that the Hotel
lacked actual knowledge that the bellman had the propensity to assault a member

                                         13
of the public, whether physically or sexually. Mindi did not produce any evidence
that the Hotel had an actual, subjective awareness that hiring the bellman would
create any risk of harm to others, much less an extreme risk. Accordingly, the
Hotel was entitled to summary judgment on this claim.

                          OTHER DAMAGES ISSUES

                            I.   Exemplary Damages

      Chapter 41 of the Civil Practice and Remedies Code governs the recovery of
exemplary damages. Section 41.005 provides: “In an action arising from harm
resulting from an assault, theft, or other criminal act, a court may not award
exemplary damages against a defendant because of the criminal act of another.”
The statute provides a limited exception if the criminal act was committed by an
employee of the defendant. See Tex. Civ. Prac. & Rem. Code § 41.005(b)(1). In
such cases, the plaintiff may recover exemplary damages only if:

      (1) the principal authorized the doing and the manner of the act;
      (2) the agent was unfit and the principal acted with malice in
      employing or retaining him;
      (3) the agent was employed in a managerial capacity and was acting in
      the scope of employment; or
      (4) the employer or a manager of the employer ratified or approved
      the act.

Id. § 41.005(c).

      The Hotel moved for summary judgment on traditional grounds, arguing that
the evidence conclusively negated all four methods of proof. Mindi responded to
that argument in the trial court, but she also raised a claim that exemplary damages
might be recoverable under an alternate statute. She cited Section 41.003, which
provides that exemplary damages may be awarded if there is clear and convincing
evidence that the claimant was harmed because of the defendant’s gross
                                        14
negligence. Id. § 41.003(a)(3). Unlike Section 41.005, this statute authorizes the
recovery of damages without requiring the claimant to prove that his injuries were
proximately caused by the criminal acts of the defendant’s employee.

      Mindi does not challenge the trial court’s judgment on any theory relating to
Section 41.005. On appeal, her brief is completely silent on those arguments
asserted by the Hotel. Mindi limits her appeal to arguing instead that exemplary
damages are available under Section 41.003. But even if we assumed that
exemplary damages were controlled by Section 41.003 rather than Section 41.005,
Mindi has still not produced any evidence of gross negligence. The request for
exemplary damages must fail as a matter of law.

                    II.   Mindi’s Mental Anguish Damages

      The final issue we consider is a separate claim for mental anguish asserted
by Mindi herself. Mindi alleged that she suffered such damages as a result of the
Hotel’s negligence. The Hotel moved for summary judgment, arguing that it owed
her no duty.

      Mental anguish damages are compensable in virtually all personal injury
cases, but a claimant’s right to recover such damages is limited if she has not
suffered a physical injury as a result of the defendant’s breach. See Motor Express,
Inc. v. Rodriguez, 925 S.W.2d 638, 639 (Tex. 1996) (per curiam); Krishnan v.
Sepulveda, 916 S.W.2d 478, 481 (Tex. 1995). Without proof of a physical injury,
the claimant must generally bring a case that falls into one of three categories
where mental anguish damages are permitted. See City of Tyler v. Likes, 962
S.W.2d 489, 495–96 (Tex. 1997). The first category is for claims that the
defendant has engaged in intentional or malicious conduct, such as assault and
battery or defamation. See id. at 495; Fisher v. Carrousel Motor Hotel, Inc., 424


                                        15
S.W.2d 627, 630 (Tex. 1967). Mindi has not alleged an intentional tort, so this
category is not applicable.

         The second category involves claims where mental anguish damages are the
foreseeable result of a breach of a duty arising out of a special relationship. See
Likes, 962 S.W.2d at 496. These include the physician-patient relationship and a
very limited number of contracts dealing with intensely emotional noncommercial
subjects, such as preparing a corpse for burial. Id. Here, there is no showing that
the Hotel had a contract or a special relationship with Mindi, who was not even a
guest of the Hotel at the time of the incident.

         The third category is reserved for particularly shocking and disturbing
events, where mental anguish is a highly foreseeable result. Id. These include suits
for wrongful death and actions for bystander recovery for a close family member’s
serious injury. Id. The sexual abuse in this case is certainly shocking, but Mindi
was not a bystander when it occurred, and there is no dispute that S.M. survived
the abuse.

         Texas does not recognize a general legal duty to avoid negligently inflicting
mental anguish on another. Id. at 494; Boyles v. Kerr, 855 S.W.2d 593, 597 (Tex.
1993). Mindi has not alleged any claim in which the Hotel owed her a duty or in
which she, as opposed to her son, would be entitled to recover damages for mental
anguish. The trial court correctly granted summary judgment to the Hotel on this
point.

                                   CONCLUSION

         We conclude that Mindi has a viable claim sounding in negligence for
damages sustained by her son. As to this specific cause of action, the summary
judgment is reversed and the cause is remanded for additional proceedings


                                           16
consistent with this opinion. In all other respects, the trial court’s judgment is
affirmed.




                                     /s/    Tracy Christopher
                                            Justice


Panel consists of Justices Boyce, Christopher, and Brown.




                                       17
