                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                               NO. 02-18-00122-CV


P.F. AND WIFE, J.F., AS NEXT                                         APPELLANTS
FRIENDS OF THEIR DAUGHTER
I.F.

                                         V.

S.S., S.S., AND S.S.                                                   APPELLEES

                                      ----------

          FROM THE 442ND DISTRICT COURT OF DENTON COUNTY
                     TRIAL COURT NO. 16-03909-442

                                      ----------

                            MEMORANDUM OPINION1

                                      ----------

      In this appeal, we are asked to determine if the trial court erred in entering a

final summary judgment denying P.F. and his wife, J.F, as next friends of their

daughter, I.F., recovery against the defendants S.S., S.S., and S.S. We affirm in

part and reverse in part.


      1
       See Tex. R. App. P. 47.4.
      Background

      Given the repetitiveness of the defendants’ initials, we will call the three

defendants by the following pseudonyms, Dad, Junior, and Debbie. In turn, P.F.,

J.F., and I.F., collectively will be referred to as Irsia, the pseudonym we assign to

the daughter. The suit arose from sexual assaults committed by A.V. (pseudonym

Alvin), I.G. (pseudonym Ivan), and J.A. (pseudonym Joe). Irsia was the victim of

the assault, and it occurred at a party hosted by Junior and supervised by Debbie.

As evidenced by the record before us, Irsia and Junior were 9th graders while

Debbie was an 11th grader.

      Junior and Debbie were the children of Dad, who had left for the weekend

to attend Family Day at the college attended by his eldest daughter. No evidence

of record indicates that Dad either knew of or consented to the party before it

transpired. However, the record contains evidence indicating that Dad forbade his

children from having guests over while he was gone. Ignoring this directive, Junior

decided to host a small gathering of his fellow freshmen with the anticipation that

they bring alcoholic beverages. Among those invited were Alvin, Irsia, a female

friend of Irsia we will call Annette, and several boys. Ivan and Joe also attended.

      Like her father, Debbie knew not of the party either but learned about it when

her brother’s friends appeared at her doorstep. Rather than stop the gathering

and heed her father’s earlier directive, she opted to supervise the event.

      As expected, various of Junior’s friends brought alcoholic beverages with

them. Others brought marijuana. Junior and the other freshmen, including Irsia,


                                         2
began to partake of those substances. The number of attendees grew and soon

encompassed twenty to thirty males and four females. The females consisted of

Irsia, Annette, Debbie, and a friend of Debbie’s (i.e., May) who came to help at the

behest of Debbie.

      In time, Irsia became extremely intoxicated, as did other of the 9th graders.

Debbie knew this and began taking some of the children home while May remained

behind to oversee the others. While Debbie was gone, Irsia exited the house,

stumbling as she did. Alvin followed. Whether he too was drunk is unclear.

Nevertheless, the pair were in the front or side yard of the abode when Alvin began

kissing Irsia. Soon thereafter, Irsia found herself on the ground with Alvin grasping

her head and attempting to engage her in oral sex. Ivan appeared at the scene

and briefly conversed with Alvin. Unsure of what happened, Irsia felt her pants

being removed. At that point, Alvin had intercourse with the intoxicated Irsia while

Ivan may have engaged in either intercourse or oral sex with her.2 After Alvin and

Ivan finished, Joe encountered Irsia on the ground and admitted to having her

perform oral sex on him.

      Apparently, May knew of what was occurring outside while Debbie was

gone. This led her to phone Debbie and inform her that Irsia and Joe were having




      2
        Evidence of record indicates that Alvin later bragged at school about his
activity with Irsia.


                                         3
intercourse in the front yard. Rather than intercede, May simply locked the front

door of the house.

      Alvin’s conduct with Irsia on the lawn was not his first sexual encounter at

the party. Earlier that evening, he was the recipient of oral sex performed upon

him by Annette in a bathroom. The record indicates that Junior and Irsia stumbled

upon the two in the bathroom. Yet, they were not the only ones who knew of this

episode. Most, if not all, of the other attendees had knowledge of it. Indeed, many

stood outside the bathroom door and laughed at what was happening. So too did

Debbie discover the activity. Not only did she deem it “disgusting” but also told

Alvin and Annette to exit the bathroom. When the couple failed to comply, Debbie

simply walked away. Annette and others in attendance later joked about her

actions.

      The events of the night resulted in Irsia (via her parents) suing Dad, Debbie,

and Junior for negligence and negligence per se.3 Dad, Debbie, and Junior filed

both a traditional and no-evidence motion for summary judgment after answering

the petition. Both the traditional and no-evidence aspects of their motion were

founded upon similar grounds. Through those grounds, Dad, Debbie, and Junior

focused on the existence of a duty to act with care and on causation. Regarding

the former, they urged that they had no legal duty to act for two reasons. First,



      3
      Other causes of action were alleged, but they are not the subject of this
appeal; that is, Irsia did not appeal their rejection by the trial court.


                                         4
they were social hosts who, under Texas law, could not be held liable for the

conduct of those to whom they provided alcohol or made it accessible, including

minors. Second, they lacked any special relationship with Alvin, Ivan, and Joe,

and absent such a relationship, they had no duty to control Alvin, Ivan, and Joe.

      Regarding the topic of causation, they focused their argument on the alleged

presence of a superseding cause, the latter being the criminal conduct of Alvin,

Ivan, and Joe. Because they could prove the existence of such superseding

conduct, Irsia allegedly had no evidence establishing a causal link between their

purported negligence and her injuries.

      In granting the motion for summary judgment, the trial court did not specify

any particular ground it thought determinative. It simply denied Irsia recovery

against her opponents.     The decision spawned this appeal and its issues

concerning whether the trial court erred in granting summary judgment on any of

the grounds alleged.

      Discussion

      Given that this is an appeal from a final summary judgment, we apply the

standards of review recently described by the supreme court in Dallas Morning

News, Inc. v. Tatum, No. 16-0098, 2018 WL 2182625, at *4 (Tex. May 11, 2018)

and this court in Nationwide Property & Casualty Insurance Co. v. Revive Mfg.,

LLC, No. 02-17-00148-CV, 2018 WL 2248667, at *2 (Tex. App.—Fort Worth May

17, 2018, no pet.) (mem. op.). The parties are referred to those cases for a

discussion of the standards.


                                         5
      Social Host and Right to Control

      As previously mentioned, summary judgment was sought on the grounds of

no duty and superseding cause. Regarding the former, Dad, Debbie, and Junior

posited that the duty was nonexistent because “Texas Courts have repeatedly held

that there is no duty for social hosts absent a special relationship, and there are

no exceptions to the insulation from liability of social hosts when they do not fall

into the special relationship category.” So too was it argued that “absent a special

relationship, the defendants did not owe the plaintiffs a legal duty to control or

prevent the tortious acts of another.”

      Whether a legal duty exists is a question of law for the court to decide from

the facts surrounding the occurrence at issue. Haji v. Valentine Enters., Inc.,

No. 02-13-00066-CV, 2014 WL 1257275, at *4 (Tex. App.—Fort Worth Mar. 27,

2014, no pet.) (mem. op.). Being a question of law, a reviewing court need not

defer to the trial court’s decision on the matter.

      The supreme court has refused to impose liability upon social hosts who

provide alcohol to others resulting in injury to the person who consumed the

alcohol or to third parties. Graff v. Beard, 858 S.W.2d 918, 921–22 (Tex. 1993);

see Hernandez v. Gonzalez-Flores, 530 S.W.3d 253, 259 (Tex. App.—Houston

[14th Dist.] 2017, pet. denied) (holding that “[t]o the extent Hernandez is arguing

that the ongoing activity was Gonzalez-Flores’s hosting of a party at which he

permitted guests to drink and use a gun, Gonzalez-Flores had no duty to

Hernandez as a social host to prevent a guest from injuring her”); Gatten v.


                                           6
McCarley, 391 S.W.3d 669, 675 (Tex. App.—Dallas 2013, no pet.) (stating that

“Appellant does not cite any authority establishing a legal duty by social hosts to

control their guests and prevent them from inflicting injury on other guests,” and

that “Texas courts have declined to impose such a duty on social hosts”). This

rule against holding social hosts responsible includes the provision of alcohol to

those under eighteen years of age. Reeder v. Daniel, 61 S.W.3d 359, 364–65

(Tex. 2001).

      The supreme court has also held that there is no general duty to control

others, though a special relationship may sometimes create a duty to aid or protect

others. Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 504 (Tex. 2017); see

Mendoza v. La. Stone, LLC, No. 07-15-00133-CV, 2015 WL 9473932, at *2 (Tex.

App.—Amarillo Dec. 22, 2015, pet. denied) (mem. op.) (holding the same); Gatten,

391 S.W.3d at 674 (holding the same). Examples of such relationships include

employer/employee,       parent/child,   and    independent      contractor/contractee.

Mendoza, 2015 WL 9473932, at *2; Gatten, 391 S.W.3d at 674. It is through the

special relationships that one may gain or have foisted upon him the right or duty

to control another. Gatten, 391 S.W.3d at 674; see Carter v. Abbyad, 299 S.W.3d

892, 901 (Tex. App.—Austin 2009, no pet.) (observing that the relationships that

form an exception to the general rule of no duty “all involve situations where the

defendant either had a recognized legal obligation to control the other person’s

conduct or the right to do so”). If such a relationship exists, then the party in control

of another may owe a duty of care to persons foreseeably exposed to danger


                                           7
arising from the defendant’s failure to reasonably exercise that control. Gatten,

391 S.W.3d at 674.

      Yet, special relationships are not the sole means of creating a right of or duty

to control. It also may arise from the actual exercise of control over another. Shell

Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex. 2004); Bell v. VPSI, Inc., 205 S.W.3d

706, 719–20 (Tex. App.—Fort Worth 2006, no pet.).           Indeed, one voluntarily

entering an affirmative course of action affecting the interests of another is

regarded as assuming a duty to act and must do so with reasonable care. Otis

Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983); accord Newsom v. B.B.,

306 S.W.3d 910, 914 (Tex. App.—Beaumont 2010, pet. denied) (stating the same).

For instance, though an employer owes no duty to protect the public from the bad

acts of an off-duty employee committed off the worksite, such a duty does arise

when the employer actually exercises control over the employee’s off-duty

activities that cause harm. Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593,

594 (Tex. 2006). In other words, exercising control creates a duty of care, and the

duty is commensurate with the control retained. Lee Lewis Constr. Co. v. Harrison,

70 S.W.3d 778, 783 (Tex. 2001); Mendoza, 2015 WL 9473932, at *3.4


      4
       To the extent that Dad, Debbie, and Junior suggest that Irsia failed to plead
a cause of action involving the assumption of control, we say the following. Dad,
Debbie, and Junior interjected the issue into the fray when attempting to disprove
that they had either a duty or right to control the conduct of third parties.
Furthermore, in her reply to the motion for summary judgment, Irsia often
mentioned Debbie’s decision to supervise the party, that is, assume control over
those in attendance. So too did she 1) assert that “[a]lthough one does not
generally have the duty to control another person or to aid a person in distress,

                                          8
        Assuming arguendo that Dad, Debbie, or Junior made alcohol accessible,

they would have no duty to control the kids who consumed the substance or protect

them or third parties from injury caused by such consumption, per the holdings in

Graff, Reeder, and their progeny. Furthermore, no evidence of record indicates

that Dad and his children had an employment, family, contractor, or similar

relationship with Alvin, Ivan, Joe, or Irsia; so, it cannot be said that the former had

the common type of special relationship with the latter that would create a duty of

care.

        Yet, evidence of record reveals that Debbie agreed to remain home the night

of the party to supervise the activities of those present. She admitted as much and

eschewed contacting Dad about the gathering because she considered herself

mature enough to watch over those present.            Having assumed the role of

supervisor or chaperone, she “was kind of just like monitoring” things. As she

would later explain, though, “when it started getting crazy, that’s when I was like

okay, I need to call [May] and – ‘cause I can’t watch all these people by myself.

It’s getting out of control.” So she contacted May and asked for her help. May

soon arrived with her boyfriend to assist Debbie. Eventually, Debbie sought to

control the growing swell of attendees by locking the front door and having


one who chooses to exercise that control or provide the aid must do so responsibly
and not make the circumstances worse,” and 2) attempt to illustrate how Dad,
Debbie, and Junior assumed control over those present. So, the assumption of
control over the affair and those in attendance and the consequence of same were
not foreign topics.


                                          9
whomever appeared contact her and ask for permission to enter.             She also

regulated the boisterousness of the attendees and their use of marijuana. They

were told by her that they needed to smoke the substance “outside and make sure

they cleaned up from [sic] themselves” so her father would not discover evidence

of the activity.

       The sexual conduct of those present was another area in which Debbie

interceded. She apparently knew that attendees would engage in same as evinced

by a statement in her subsequent affidavit to the police. In it, she “explained” that

“at parties people hook up.” The attendees at Junior’s party apparently did just

that, and it involved more than promiscuity. Again, the ratio of males to females

was anywhere from five or ten to one, depending upon whether the two

chaperones (Debbie and May) were excluded. Of the two freshman girls present,

one (Irsia) was discovered on a couch with a boy, and they were “getting kind of

inappropriate,” as characterized by Debbie. This led her to tell the 9th graders to

“break it up.” Other evidence of record could lead one to reasonably deduce that

Irsia was drunk by the time she joined the boy on the couch.

       The remaining freshman female (Annette) also was found engaging in

inappropriate activities. They involved her performing oral sex in a bathroom on

one of the boys (Alvin) who would eventually accost Irsia in the front yard. Debbie

found the action “disgusting” and told the couple to leave the bathroom. They did

not comply, and Debbie simply walked away.




                                         10
      Authority obligates us to construe the summary judgment record in a light

most favorable to the nonmovant. Nationwide, 2018 WL 2248667, at *2. Upon

our doing so, it can be said that a rational fact-finder could reasonably interpret the

foregoing evidence as both intent and effort on the part of Debbie to exercise

control over those at the party. Such a fact-finder could also reasonably infer that

the activities being subjected to control included not only the attendees’ conduct in

general but also their engagement in matters of sex. So, while it may be that Dad,

Debbie, or Junior had neither the right nor duty to control the minors at the party

under the social host doctrine, a question of fact exists as to whether the

chaperone of the event voluntarily entered into an affirmative course of action

affecting the interests of another thereby creating a duty for her to act with

reasonable care. In other words, a fact question exists as to whether Debbie

exercised actual control over the attendees and their conduct (both general and

sexual in nature) so as to impose on her a duty to protect the attendees and others

from the foreseeable consequences of their actions, which included sexual activity.

      Another matter touching upon the presence of duty bears attention. Irsia

has repeatedly urged that “[t]his is not a social host case, but rather a dangerous

environment case.”       [Emphasis added.]      That is, Dad, Debbie, and Junior

“together acted to create a dangerous environment populated by unsupervised

teenagers, drugs, alcohol, and known predators.” [Emphasis added.] “[T]he

environment created by [them] . . . breached the Appellees’ common law duty to

take affirmative actions to make safe or avoid further increasing this danger of


                                          11
their own creation.”     [Emphasis added.]      Their “concerted negligent actions

created a dangerous condition that ultimately was the proximate cause of the

injuries to” Irsia.   [Emphasis added.]       Furthermore, these assertions echo

allegations expressed in the original petition.       For instance, we encounter

averments about Dad, Debbie, and Junior 1) having “a duty to provide a safe

environment for guests attending the party,” and 2) “collectively breach[ing] the

duty owed to [Irsia] . . . as a guest attending the party, to provide a safe

environment.” [Emphasis added.] This thread of argument was continued within

her response to the summary judgment motion. There too did she posit that Dad,

Debbie, and Junior “created a dangerous condition in their home” and “owed

[her] a duty to prevent injury to her and others that it [sic] reasonably appeared or

should have reasonably appeared in the exercise of their lawful rights others . . .

may be injured by the dangerous condition that was created.” [Emphasis

added.]

      Simply put, one can reasonably interpret Irsia’s contentions as implicating a

cause of action that actually does impose a duty to act. A duty arises when one

creates a dangerous situation; should he or she do that, the person then has the

duty to attempt to prevent injury to others “if it reasonably appears or should appear

that others in the exercise of their lawful rights may be injured thereby.” Gatten,

391 S.W.3d at 675–76; see Buchanan v. Rose, 159 S.W.2d 109, 110 (Tex. 1942)

(stating that when a party negligently creates a dangerous situation it then

becomes his duty to do something about it to prevent injury to others if it reasonably


                                         12
appears or should appear to him that others in the exercise of their lawful rights

may be injured by the situation); see also SmithKline Beecham Corp. v. Doe,

903 S.W.2d 347, 360 (Tex. 1995) (stating that “[o]nly where the party created the

dangerous situation or where the party enjoys a special relationship with the other

party giving rise to a duty will this general rule not apply,” the general rule being

that a mere bystander who did not create the dangerous situation had no duty to

prevent injury to others). So, irrespective of the contention that social hosts owe

no duty to others or that her opponents had no duty or right to control others, Irsia

alleged a cause of action recognized in Texas as imposing a duty to act. More

importantly, Dad, Debbie, and Junior did not request summary judgment on that

particular cause of action via the traditional aspect of their summary judgment

motion. To the extent that the no evidence aspect of their motion may have

touched upon the claim, it merely concerns whether the superseding criminal

conduct of Alvin, Ivan, and Joe broke the requisite causative link. We deal with

the latter below.

      In sum, Dad, Debbie, and Junior did not establish, as a matter of law, that

their purported status as social hosts or the lack of any duty to control third parties

entitled them to summary judgment.             Thus, the trial court could not have

legitimately granted them relief on those grounds.

      Proximate and Superseding Cause

      We now turn to the remaining basis for summary judgment relief mentioned

in the motion.      As previously mentioned, it involves causation and whether


                                          13
superseding criminal conduct broke the requisite causative link. Dad, Debbie, and

Junior alleged in their motion that Irsia’s purported “damages were the result of the

criminal, intentional, negligent, unforeseeable acts of Defendants [Alvin, Ivan, and

Joe] and were not proximately caused by Defendants [Dad, Debbie, and Junior].”

That is, their “third party criminal conduct [was] a superseding cause and negate[d]

proximate cause.”

      Normally, a third party’s criminal conduct is a superseding cause of injury

arising from a defendant’s negligence. Pichardo v. Big Diamond, Inc., 215 S.W.3d

497, 501 (Tex. App.—Fort Worth 2007, no pet.). The same is true even though a

defendant’s conduct created a situation which afforded an opportunity to the third

party to commit the tort or crime. Phan Son Van v. Pena, 990 S.W.2d 751, 753–

54 (Tex. 1999). Yet, this is not so if, at the time, the defendant realized or should

have realized the likelihood that a situation affording a third party the opportunity

to commit a tort or crime “might be created” and a third person might avail himself

of the opportunity to commit the tort or crime. Id.; Pichardo, 215 S.W.3d at 501

(stating that a third party’s criminal conduct is a superseding cause unless the

criminal conduct was a foreseeable result of the defendant’s negligence).

      Furthermore, a defendant seeking summary judgment on the ground that he

negated foreseeability as an element of proximate cause must prove more than

simply that the intervening third party criminal conduct occurred.         Pichardo,

215 S.W.3d at 501.     The movant must establish that the third party criminal

conduct rose to the level of a superseding cause based on various non-exclusive


                                         14
indicia. Id. Those indicia include: 1) whether the intervening force brought about

harm different in kind from that which would otherwise have resulted from the

actor’s negligence; 2) whether the intervening force’s operation or the

consequences of it appeared extraordinary rather than normal in view of the

circumstances existing at the time; 3) whether the intervening force operated

independently of any situation created by the actor’s negligence or was a normal

result of such a situation; 4) whether the operation of the intervening force was due

to a third person’s act or failure to act; 5) whether the intervening force was due to

an act of a third person which is wrongful toward the other and, as such, subjects

the third person to liability; and 6) the degree of culpability of a wrongful act of a

third person which sets the intervening force in motion. Id. Should the movant

satisfy his burden, then the obligation falls upon the plaintiff to create a material

issue of fact by presenting evidence that, “despite the extraordinary and abnormal

nature of the intervening force, there was some indication at the time that such a

crime would be committed.” Id. at 501–02.

      That Alvin, Ivan, and Joe engaged in oral or vaginal sex with Irsia without

her consent are the purported superseding criminal events. They occurred several

hours into the party. Yet, by that time, Debbie, the chaperone: 1) knew the ratio of

boys to girls had grown anywhere from 5-to-1 to 10-to-1; 2) knew the attendees

were 9th graders approximately fourteen to fifteen years old; 3) knew Irsia was

highly intoxicated; 4) knew many other attendees were quite intoxicated; 5) knew

Irsia had been “on the couch with one of the boys, and [she] had to like -- it was


                                         15
getting kind of inappropriate, so [she] was like, okay, y’all need to break it up”;

6) knew “at parties people hook up”; 7) knew that things “started getting crazy”;

8) knew (as did Junior) one of the few females at the party had engaged in oral

sex in a bathroom with Alvin; 9) knew everyone at the party was laughing at what

occurred in the bathroom between Annette and Alvin; 10) knew that the attendees

viewed the engagement in such sexual activity with minimal seriousness or

nonchalance; and 11) knew that by 9:30 p.m. everyone was becoming too drunk

to control themselves. When becoming too drunk to control themselves, several

of the kids were taken home by Debbie, and it was then that Alvin, Ivan, and Joe

struck.

      There is evidence of record also disclosing that Junior 1) believed Irsia was

drunk soon after arriving at the party, if not when she arrived; 2) witnessed Irsia’s

intoxication progress to the point where she was stumbling; 3) considered the

event as getting out of control; 4) knew of the oral sex occurring in the bathroom;

5) knew the attendees were laughing about it; 6) thought everyone was just having

fun; 7) would have “kicked everybody out” if he was not himself drunk; 8) witnessed

Irsia becoming “flirtatious”; 9) saw her becoming “really touchy, just as girls are

when they’re drunk”; 10) saw Irsia and Annette sitting on boys’ laps and hugging

them; and 11) believed Irsia became so drunk that she would not have been able

to consent to sex.

      The crime of sexual assault occurs in numerous ways. Though consent, or

the lack thereof, is often an element of the offense, it need not be if the victim is a


                                          16
child. See, e.g., Tex. Penal Code Ann. § 22.011(a)(2)(A) (West Supp. 2017)

(making it a crime to intentionally or knowingly cause the penetration of a sexual

organ of a child by any means); Smallwood v. State, 471 S.W.3d 601, 607 (Tex.

App.—Fort Worth 2015, pet. ref’d) (op. on reh’g) (stating that a child cannot

consent to sexual contact or intercourse and that compulsion is not an element

required to be proved in the aggravated sexual assault or sexual assault of a child).

And, a “child” is anyone younger than seventeen.           Tex. Penal Code Ann.

§ 22.011(c)(1).

      Moreover, penetrating a child’s sexual organ, id. § 22.011(a)(2)(A), or

penetrating a child’s mouth with a sexual organ, id. § 22.011(a)(2)(B), fall within

the scope of sexual assault.      Given this, the factual nature of the conduct

transpiring at the party, in the bathroom, and involving a fourteen- or fifteen-year-

old female child likened to factual conduct deemed criminal under state law. Again,

being a child, Annette could not have consented to the activity. Smallwood,

471 S.W.3d at 607. And, most importantly, Debbie, the chaperone, knew of its

occurrence before leaving the house to take home several drunk children. She

also knew of the general attitude of the attendees towards the sexual act and the

inappropriate behavior between Irsia and a boy on the couch.

      Viewing the events in reverse, a fact-finder reasonably could analogize them

to a snowball rolling down a hill. Things began with drinking and ingesting drugs,

grew to inappropriate sexual activity on a couch, soon became oral sex in a

bathroom, and culminated in rape outside. Though Debbie tried to intervene when


                                         17
the snowball grew to oral sex in the bathroom with a child, she ultimately “walked

away” as everyone else laughed. Junior would have “kicked everyone out” if he

was not so drunk and, therefore, thought people were just having fun. And, if the

fact-finder so viewed the developing events, it also would have evidence before it

to support a reasonable inference that 1) the sexual assaults committed by Alvin,

Ivan, and Joe were not necessarily different in kind from that which would

otherwise have resulted from failing to stop earlier sexual conduct; 2) their sexual

assaults were not extraordinary given the circumstances existing at the time;

3) their sexual assaults were not necessarily independent of the relatively lax

attitude toward “hooking-up” between drunk children at the party; or 4) their sexual

assaults would not have occurred had the chaperone done more than simply walk

away from the kids engaging in oral sex in the bathroom.

      The same evidence also presents a fact-finder with a question of fact

regarding whether the assaults would have occurred had Junior been sober and

Debbie not simply walked away from the events transpiring in the bathroom given

the escalating nature of the conduct. She had undertaken the role of chaperone

and undertaken the effort to control both conduct in general and conduct of a

sexual nature. Nothing was done to control the escalating events, though, when

her initial effort was met with noncompliance. Despite previously realizing that

circumstances were growing so crazy that she needed help to control the party,

the chaperone walked away, allowed the party to continue, let Alvin stay, and did

nothing else as everyone merely laughed at the fact of children engaging in sex.


                                        18
In short, the summary judgment record contained some evidence creating a

material issue of fact concerning whether Debbie failed to exercise reasonable

care after assuming control of the kids and that her failure proximately caused

Irsia’s eventual injuries.

      That the events began with inappropriate behavior between children on a

couch and turned into oral sex in a bathroom are also important bits of evidence

serving to distinguish the situation at bar from those in an opinion upon which Dad

and his children place much reliance, Doe v. Messina, 349 S.W.3d 797 (Tex.

App.—Houston [14th Dist.] 2011, pet. denied). The Messina court had before it

circumstances involving teenagers having a party, drinking alcohol, and ingesting

drugs at a house. Id. at 799. Eventually, the party ended, and the attendees went

to sleep. Id. One of the female attendees (Doe) was later awakened by another

guest (Kervin) who proceeded to rape her, and the victim sued the homeowner for

negligence and premises liability.    Id.    Like Dad and the others here, the

homeowner in Messina attacked causation by interjecting Kervin’s criminal

conduct.    Id. at 800.      Summary judgment was entered against Doe and

subsequently affirmed on appeal. See id. at 799. In deciding to affirm, the

reviewing court conceded that teenagers consuming alcohol without adult

supervision could lead to foreseeable consequences such as “promiscuity.” Id. at

803. Yet, it concluded that the act of rape was “an extraordinary consequence.”

Id. The court’s decision, however, must be placed in context. Doe seemed to be

arguing that rape was a foreseeable consequence of the mere ingestion of drugs


                                        19
and alcohol by a group of young people at a party. Id. at 802–03 (stating that “we

will determine whether Doe’s sexual assault was the foreseeable consequence of

appellees’ alleged failure to supervise a group of teenagers who were consuming

alcohol”). The appellate court disagreed because, among other things, there was

no evidence that the assault happened due to the victim’s drunken state. Id. at

804.

       Here, Irsia testified, via deposition, about 1) being “very, very incoherent” at

the time of the assaults, 2) running outside and stumbling, 3) Alvin following her

outside, 4) Alvin “bugging” and “trying to kiss” her, 5) her “falling all over the place”

and eventually falling to the ground, 6) Alvin removing her pants, 7) Alvin “kind of

. . . pushing [her] head to give him oral sex” 8) “being drunk and [so] intoxicated”

that she did not exactly remember what Alvin and Ivan spoke about after Ivan

appeared at Alvin’s side, and 9) both Alvin and Ivan trying to force her to perform

oral sex as she tried to get up from the ground while incoherent. It must not be

forgotten that by the time she was on the ground outside, she and another boy had

already engaged in inappropriate behavior on a couch while drunk. This is some

evidence indicating that the victim’s drunken state played a role in the assaults,

unlike the circumstances in Messina.

       We also have evidence of an eventual assailant engaging in sexual activity

in a bathroom, activity which the chaperone knew of and considered disgusting.

Such was missing in Messina, as was evidence that the kids at the gathering




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viewed sexual activity with nonchalance and laughter or that the person who opted

to supervise the drunk kids viewed parties as a place to “hook up.”

      Simply put, the evidence underlying the decision in Messina differs greatly

from that here. And, the evidence present here but absent in Messina could

reasonably support a fact-finder’s conclusion that sexual assault at the gathering

was not necessarily an extraordinary consequence.

      The same can be said of another opinion upon which Dad, Debbie, and

Junior relied, Spears v. Coffee, 153 S.W.3d 103 (Tex. App.—San Antonio 2004,

no pet.). It involved a physical altercation between minors at the Coffee home. Id.

at 105. Spears sued the Coffees for negligently supervising the group. In affirming

the summary judgment upon the claim of superseding cause, the reviewing court

noted 1) Spears’s admission that “prior to the incident, Michael and Billy had not

been involved in any physical confrontation”; 2) “Mrs. Coffee[’s] state[ment] that

nothing like this incident had ever before occurred in her home”; and 3) her

daughter’s statement that though Billy seemed aggravated upon arriving at the

house on the day of the incident, “he ‘got fine’ within a few minutes.” Id. at 107.

Here, there is evidence of sexual activity at the party progressing from displays of

inappropriate conduct on a couch to oral sex in a bathroom and, ultimately, to rape

in the front yard. Moreover, all knew, including the chaperone, that Alvin was a

participant in the bathroom episode. This evidence tends to render Spears quite

distinguishable.




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      Missing from the record at bar, though, is evidence that Dad knew or

approved of the party before leaving to visit his eldest daughter at college. Again,

Junior planned the gathering without anyone knowing until guests began to arrive.

He, not Dad or Debbie, determined who to invite and anticipated that they would

bring alcohol. And, while there is evidence that Dad eventually became aware of

the venture, that did not occur until hours after it had begun and participants were

leaving. Nothing of record suggests he approved of it after being contacted by an

attendee’s mother, knew the identities of those attending the event, or knew about

the sexual activities in which various attendees engaged. The absence of this

evidence leads us to find the observation and holding in Messina applicable as to

him. Belatedly discovering that his children hosted an event involving minors

wherein alcohol was present is, alone, not a basis upon which a rational fact-finder

could reasonably deduce that sexual assault was a foreseeable consequence of

the event from Dad’s viewpoint. From his perspective and vis-a-vis any potential

negligent act he may have committed, the criminal conduct of Alvin, Ivan, and Joe

was a superseding cause of Irsia’s injuries, and Irsia presented no evidence

creating a material fact on the issue.

      In sum, the evidence of record creates material issues of fact regarding both

proximate and superseding cause. That is true only with regard to the negligence

claims asserted against Debbie and Junior. Thus, the trial court did not err in

granting Dad summary judgment.




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      We reverse the trial court’s summary judgment denying Irsia recovery upon

her claim of negligence asserted against Debbie and Junior and remand the cause

to the trial court for further proceedings as to Debbie and Junior. See Williams v.

Lavender, 797 S.W.2d 410, 412 (Tex. App.—Fort Worth 1990, writ. denied)

(recognizing the general rule that, in Texas, minors are severally liable for their

own torts). In all other things, the summary judgment is affirmed.


                                                   /s/ Brian Quinn

                                                   BRIAN QUINN
                                                   CHIEF JUSTICE

PANEL: SUDDERTH, C.J.; MEIER, J.; and QUINN, C.J. (Sitting by Assignment).

SUDDERTH, C.J., and MEIER, J., concur without opinion.

DELIVERED: July 19, 2018




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