Affirm and Opinion Filed April 29, 2020




                                        In The
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                No. 05-18-00592-CV

                       ARKING JONES, Appellant
                                V.
               KIRKSTALL ROAD ENTERPRISES, INC., Appellee

                 On Appeal from the 191st Judicial District Court
                              Dallas County, Texas
                      Trial Court Cause No. DC-16-01794

                          MEMORANDUM OPINION
                  Before Justices Pedersen, III, Reichek, and Carlyle
                           Opinion by Justice Pedersen, III
         Appellant Arking Jones challenges the trial court’s order granting summary

judgment in favor of appellee, Kirkstall Road Enterprises, Inc. (Kirkstall). Jones

argues that the trial court erroneously granted the motion for summary judgment

because (1) he sufficiently raised a fact issue as to whether Kirkstall was entitled to

First Amendment immunity, and (2) he produced clear and specific evidence of each

element of his claim for negligence against Kirkstall. We affirm the trial court’s

order.
                                     Background

      Kirkstall produces a nationally broadcasted reality television show, The First

48. The show features homicide detectives, and it includes recordings of actual

police interviews as well as dramatizations and reenactments of events surrounding

the early days of murder investigations. The program at issue in this case aired on

June 9, 2014 (the Episode). It involved the Dallas murder of Donovan Reid, a

suspected drug dealer. Reid had been shot in his home during what police believed

was a robbery by rival drug dealers.

      Jones was interviewed by Dallas detectives during their investigation of the

Reid murder. Jones is the second person whose police interview is shown in the

Episode. His image—like that of the other witness—is blurred, and his voice is

altered. Jones relates a conversation he had with Clint Dewayne Stoker, whom police

had identified early on as a suspect. Jones explains that Stoker told him details of the

robbery and murder. According to Jones, Stoker implicated himself and another man

known as “21.” Jones tells the detectives, “21 and them . . . they’re some killers. Let

me tell you the full scoop” and goes on to relate the conversation he had with Stoker.

      Jones asserts that immediately after the Episode aired, he and his mother

received threats from Stoker and a friend of Stoker’s, Shmyron Cooper. Jones

reported the threats to the Dallas Police Department, and both Stoker and Cooper

were indicted soon afterward for retaliation. But Jones asserts that he continued to

be victimized—assaulted, robbed, and threatened—because of his “perceived
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depiction” as a “snitch” regarding Reid’s murder. Fourteen months after the Episode

aired, Jones was shot four times by Michael Scott, a man Jones had known since

high school and yet another friend of Stoker’s.

      Jones filed suit, alleging that Kirkstall was negligent in the editing,

production, and release of his image and voice on national television. Kirkstall filed

a traditional motion for summary judgment, arguing that it enjoyed First Amendment

immunity and that Jones could not prove the elements of his negligence claim. The

trial court granted the motion and dismissed Jones’s claims. He appeals.

                                     Discussion

      We apply well-known standards in our review of traditional summary

judgment motions. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.

1985). The movant has the burden to demonstrate that no genuine issue of material

fact exists and it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);

Nixon, 690 S.W.2d at 548–49. We consider the evidence in the light most favorable

to the nonmovant. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). We

credit evidence favorable to the nonmovant if reasonable jurors could, and we

disregard evidence contrary to the nonmovant unless reasonable jurors could not.

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.

2009). Within the framework of these standards, we review the summary judgment

de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). The trial

court granted the motion without identifying the basis of its ruling. Accordingly, we
                                         –3–
must affirm the order if any of the summary judgment grounds are meritorious. FM

Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73 (Tex. 2000).

      To prevail on his negligence claim, Jones had to establish that (1) Kirkstall

owed him a legal duty, (2) Kirkstall breached that duty, and (3) the breach

proximately caused his injury. See Nabors Drilling, U.S.A. v. Escoto, 288 S.W.3d

401, 404 (Tex. 2009). Kirkstall’s motion challenged Jones’s ability to prove each of

those three elements. We focus here on the requirement of a legal duty owed by

Kirkstall to Jones. “A duty represents a legally enforceable obligation to conform to

a particular standard of conduct.” Way v. Boy Scouts of Am., 856 S.W.2d 230, 233

(Tex. App.—Dallas 1993, writ denied). The existence of such a duty is a question of

law to be determined by the court. Trammell Crow Cent. Tex., Ltd. v. Gutierrez, 267

S.W.3d 9, 12 (Tex. 2008).

      Jones’s petition alleged that Kirkstall owed him “a duty to exercise reasonable

care in the editing, production, and release of [Jones’s] image, likeness, and/or voice

on national television.” Specifically, Jones contends that Kirkstall owed him a duty

to present the Episode in a manner that assured (1) his identity was not discernable

and (2) he was not falsely portrayed as a confidential informant or a witness who

otherwise voluntarily assisted the police in their investigation of Reid’s murder.

      Kirkstall’s motion negated traditional sources of a duty under Texas law.

Jones did not attempt to establish a statutory source for the duty he claims. And

Texas common law imposes no duty to control the actions of a third party unless a
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special relationship exists between the parties. Pagayon v. Exxon Mobil Corp., 536

S.W.3d 499, 504 (Tex. 2017).1 More specifically, Texas does not recognize a general

duty to protect others from the criminal acts of third parties. Trammell Crow, 267

S.W.3d at 12. As to a duty owed by a media defendant, Kirkstall asserts that no

Texas authority recognizes a duty to avoid negligent editing or production.

         Kirkstall relies on a case from this Court addressing whether the media owes

a duty to protect persons from a risk of violence arising after a publication: Orozco

v. Dallas Morning News, Inc., 975 S.W.2d 392 (Tex. App.—Dallas 1998, no pet.). 2

In Orozco, the newspaper published a story concerning the arrest of Natividad

Orozco, Jr. as a murder suspect in a drive-by shooting. Id. at 393–94. The article

included Orozco’s name and the street and block number where he lived. Id. at 394.

The day the article circulated, the family with whom Orozco lived began receiving

telephoned threats of retaliation for the murder, and gunshots were fired at the house.

Id. That evening, when Orozco’s sister answered the door, she and her son were shot;

her wounds were fatal. Id. The family sued, alleging that the newspaper was



    1
        Jones does not contend that such a special relationship existed between him and Kirkstall.
    2
        Kirkstall also relies on Way v. Boy Scouts of America, 856 S.W.2d 230 (Tex. App—Dallas 1993, writ
denied). In that case, the plaintiff was the mother of a twelve-year-old boy who was killed when the rifle
he and friends were playing with accidentally discharged. Id. at 232. She sued, alleging that her son had
read a supplement about shooting sports published in Boys’ Life magazine shortly before the accident and
blaming the supplement for causing his death. Id. We concluded that the appellees—the supplement’s
publishers and an advertiser—had no duty to refrain from publishing the supplement or to affix a warning
to it. Id. at 237. Because Way involved commercial speech and accidental conduct of children, we find it
less helpful than Orozco, which involved a publication relating to crime and subsequent, intentional
criminal activity.
                                                    –5–
negligent in publishing where they lived. We concluded that the newspaper had no

duty to refrain from publishing where the arrested man lived. Id. at 396. In coming

to that conclusion, we stated that we were “directed to no case imposing under Texas

law a duty upon a newspaper to refrain from publishing what is a true, public, facially

harmless, and newsworthy fact.” Id. at 395. We remain unaware of any authority

imposing such a duty on a member of the media.

      Jones argues, however, that Kirkstall’s duty can be derived from a traditional

risk-utility analysis. Such an analysis requires us to consider a number of factors. In

this case we weigh the risk, its foreseeability, and the likelihood of injury to Jones,

against the social utility of Kirkstall’s conduct, the magnitude of the burden of

guarding against the injury, and the consequences of placing that burden on

Kirkstall. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.

1990). Of these factors, the most important is the foreseeability of the risk. Tex.

Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 36 (Tex. 2002). A risk of injury is

foreseeable if, under the circumstances, one should reasonably anticipate the injury

as a consequence of the contemplated conduct. Way, 856 S.W.2d at 234.

      Jones contends that criminal conduct was a foreseeable result of Kirkstall’s

false portrayal of him as a confidential informant. But even considering all summary

judgment in the light most favorable to Jones as we must, see Parker, 249 S.W.3d

at 399, we cannot agree that the Episode suggests that Jones was a confidential

informant. On the contrary, although the possibility is raised that a confidential
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informant for a Gang Unit detective might have information about the murder, the

Episode makes clear that the informant refused to talk to the police and that the

investigating detectives would need to find information elsewhere. Jones’s

appearance in the Episode comes a day later and is not tied in any way to the earlier

conversation with the Gang Unit detective. We conclude that no reasonable juror

could have viewed the Episode and believed that Jones was portrayed as a

confidential informant. See Fielding, 289 S.W.3d at 848 (reviewing summary

judgment evidence by “crediting evidence favorable to [the nonmovant] if

reasonable jurors could, and disregarding contrary evidence unless reasonable jurors

could not”). Jones’s contention that he was so portrayed fails to raise a genuine issue

of material fact and cannot support his foreseeability argument.

      As to the general notion that Jones came forward voluntarily to give evidence

against Stoker and thereby made retaliation against him foreseeable, the summary

judgment evidence is not similarly certain. In his affidavit, Jones states that he did

not agree to be interviewed by the police. To the contrary, he states that he was pulled

over, handcuffed, and taken to the police station where “detectives implied that if

[he] did not cooperate, they would arrest [him] for an unknown crime.” At the same

time, Kirkstall’s evidence includes a statement by The First 48’s executive producer

that “Kirkstall believed that [Jones] had come forward voluntarily to speak with law

enforcement as they attempted to solve the murder of Donovan Reid.” The tenor of

Jones’s interview—“Let me tell you the whole scoop”—does not challenge that
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belief. Moreover, Jones’s own summary judgment evidence includes an affidavit

supporting the retaliation arrest warrant for Cooper, which states that “Complainant

Jones is a witness who came forward and implicated accomplice Stoker as a suspect

in a Capital Murder offense.” (Emphasis added.)

      This conflict in the evidence, however, does not resolve the summary

judgment issue of duty. Kirkstall’s contract with the City provided that each episode

was submitted for review by the Dallas Police Department (DPD):

      Prior to the airing of each episode of the Program, Producer shall
      provide the DPD Chief of Police or his designee (the “Representative”)
      with 1 (one) DVD copy of the near final version of Program Materials
      (the “DVD”). Producer shall allow the Representative 5 (five) business
      days from receipt of the DVD to review and to notify Producer of
      factual inaccuracies contained in the Program Materials so that
      Producer can correct any such inaccuracies and depict the investigation
      accurately.

Based on this provision, Kirkstall was entitled to rely upon the DPD to correct any

inaccuracies within the Episode, including any incorrect suggestion that Jones was

a willing witness. Thus, for our limited purposes, it does not matter whether Jones

“came forward” to give information about the murder. The DPD—not Kirkstall—

knew the circumstances under which Jones was interviewed. Any obligation to

prevent inaccuracies was the DPD’s, not Kirkstall’s.

      Kirkstall’s summary judgment evidence establishes that it was never informed

of threats made to Jones or to his mother. It was never informed by Jones or the DPD

of any mistreatment or potential risk of injury to Jones. Nor had the broadcast of any


                                         –8–
other episode of The First 48 ever been followed by retaliatory conduct.3 We cannot

conclude that Jones’s appearance on the Episode engendered a risk that would be

foreseeable to Kirkstall. Likewise we cannot conclude that there was a likelihood

Jones would be shot more than a year later because of the manner in which Kirkstall

edited and produced the Episode.

         While we conclude the likelihood of injury was low in this case, the utility of

Kirkstall’s programming was significant. Although we need not reach Kirkstall’s

immunity ground for summary judgment, we do consider the First Amendment’s

impact on our risk-utility analysis. See Orozco, 975 S.W.2d at 396. Jones dismisses

the relevance of First Amendment concerns in this case, distinguishing between what

it calls Kirkstall’s “scripted, dramatized, inaccurate, and for-profit reality television

show” and a news outlet. However, it is settled that entertainment programs, as well

as news programs, enjoy First Amendment protection. Zacchini v. Scripps-Howard

Broad. Co., 433 U.S. 562, 578 (1977). We have acknowledged “society’s keen

interest in a press free to report newsworthy facts” as well as the social utility of

crime reporting. Orozco, 975 S.W.2d at 396, 397. If we were to place the burden to


    3
        The program’s executive producer testified:
         Kirkstall is not aware of any repercussions suffered by witnesses, and certainly no
         shootings that have occurred as a result of a witness appearing in an episode of The First
         48. Since its inception in 2004, The First 48 has broadcast over 500 murder investigations.
         In that time, Kirkstall is not aware of any violent acts of retaliation against witnesses that
         occurred as a result of them appearing, whether fully recognizable as themselves or with
         their identities obscured, in The First 48.

Jones does not dispute this testimony.

                                                      –9–
prevent the kind of unforeseeable injury that befell Jones in this case on the media,

the result would be a significant infringement on its Constitutional protections when

reporting matters of public interest.

      Given the facts of this case, we conclude that the remote possibility of a

violent retaliation against Jones did not create a duty on the part of Kirkstall to refrain

from editing and producing the Episode as it did. See Greater Houston Transp. Co.,

801 S.W.2d at 525. The balance of the actual risk of harm presented and the burden

of preventing that harm weighs in favor of Kirkstall.

      Finally, Jones argues that even if Kirkstall originally bore no duty to protect

him from identification, it actually assumed that duty by disguising his image and

voice in the first place. He contends that having undertaken that effort, Kirkstall was

required to perform without negligence. To that end, Jones declares that Kirkstall’s

blurring of his image and altering his voice shows that it “knew that publishing

Jones’[s] identity created a high risk and likelihood of harm, and very specifically,

the high risk of retaliation against Jones by third parties who were at the center of

the episode created by [Kirkstall].” There is no summary judgment evidence that

supports this assertion concerning Kirkstall’s knowledge. Nor is there summary

judgment evidence supporting the premise that Kirkstall blurred Jones’s image and

altered his voice to protect Jones. On the contrary, the only evidence concerning

Kirkstall’s motive is its acknowledgement that it disguised participants’ identities to

avoid obtaining releases: its contract with the City required it to secure permission
                                          –10–
from each individual before exhibiting any “identifiable image” of that individual.

We conclude Kirkstall did not voluntarily assume a legal duty to disguise Jones in

the Episode.

      Under the facts of this case, we conclude that Kirkstall owed no legal duty to

Jones. Accordingly, Jones could not establish an essential element of his negligence

cause of action. The trial court correctly granted summary judgment on that ground.

We overrule Jones’s second issue and, therefore, need not reach his first issue

regarding Kirkstall’s First Amendment immunity.

                                   Conclusion

      We affirm the trial court’s order granting summary judgment in Kirkstall’s

favor and dismissing Jones’s claims.




                                          /Bill Pedersen, III//
                                          BILL PEDERSEN, III
                                          JUSTICE




180592f.p05




                                       –11–
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                   JUDGMENT

 ARKING JONES, Appellant                        On Appeal from the 191st Judicial
                                                District Court, Dallas County, Texas
 No. 05-18-00592-CV           V.                Trial Court Cause No. DC-16-01794.
                                                Opinion delivered by Justice
 KIRKSTALL ROAD                                 Pedersen, III. Justices Reichek and
 ENTERPRISES, INC., Appellee                    Carlyle participating.

       In accordance with this Court’s opinion of this date, the order of the trial
court is AFFIRMED.

       It is ORDERED that appellee Kirkstall Road Enterprises, Inc. recover its
costs of this appeal from appellant Arking Jones.


Judgment entered this 29th day of April, 2020.




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