Case Number: 01-97-01125-CV 01/06/2003 Description of document returned to Supreme Court 12/20/2002 Case stored in record room 12/17/2002 Mandate issued 12/17/2002 Created for Data Conversion -- an event inserted to correspond to the mandate date of a process 12/12/2002 Motion for Rehearing - Disposed Denied with Justice not sitting. 11/25/2002 Motion for Rehearing - Filed 11/25/2002 Motion for Rehearing forwarded 11/15/2002 M/E/T to file Motion for Rehearing disposed Granted 11/14/2002 M/E/T to file motion for rehearing 10/31/2002 Opinion issued judgment of the court of appeals affirmed 10/31/2002 Opinion issued judgment of the court of appeals affirmed 10/31/2002 Opinion issued judgment of the court of appeals affirmed 10/31/2002 Court approved judgment sent to attys of record 04/18/2001 Created for Data Conversion -- an event inserted to correspond to the submitted date of a process 04/18/2001 Created for Data Conversion -- an event inserted to correspond to the submission date of a process 04/18/2001 Oral argument 03/01/2001 Petition for Review disposed Granted 03/01/2001 Petition for Review disposed Granted 03/01/2001 Set for Submission 03/01/2001 Amount of time allotted for oral argument. 01/17/2001 Reply filed 01/02/2001 Brief filed. 12/11/2000 Brief filed. 11/17/2000 Record Received (See Remarks) 11/09/2000 Record Requested in Petition for Review 11/09/2000 Brief on the Merits Requested 10/25/2000 Response to Petition for Review filed 09/26/2000 Supreme Court of Texas Requested Response; mailbox rule does not apply 09/19/2000 Case forwarded to Court 09/12/2000 Response to Petition for Review waived 08/29/2000 Petition for Review filed 08/29/2000 Appendix Filed
Appellants, Edith Carol Peavy and O.L. Peavy, individually and as personal representative of the estate of Elizabeth Ann Peavy, deceased, appeal the rendition of summary judgment in favor of appellee, Texas Home Management, Inc. ("THM"), on their negligence and breach-of-contract causes of action. We affirm in part and reverse in part.
The Peavys sued THM for negligence and gross negligence. THM moved for summary judgment on the basis that it did not owe the Peavys a duty under Texas law. After responding to the motion for summary judgment, the Peavys amended their petition to assert a breach-of-contract claim, alleging they were third-party beneficiaries of the contract between THM and DHS, as well as beneficiaries of the court's order committing Dixon to the control of the Texas Department of Mental Health and Mental Retardation ("MHMR").
On June 4, 1997, the trial court granted THM's motion for summary judgment. The summary judgment did not address the Peavys' breach-of-contract claim. THM moved to sever the Peavys' claims against Dixon from those against THM, and the court granted the severance. The Peavys then filed their notice of appeal. After the notice of appeal was filed, the Peavys filed their brief asserting their third-party-beneficiary claim had not been addressed by the summary judgment and, therefore, that summary judgment was interlocutory. In response, THM filed a motion for summary judgment on the Peavys' third-party-beneficiary claim. Eight months after the notice of appeal was filed, on April 13, 1998, the trial court signed a summary judgment, which disposed of Peavys' third-party-beneficiary claim, thereby resulting in all of Peavys' claims against THM becoming final and appealable.
After a complete diagnostic evaluation by MHMR, Dixon was committed by court order to the custody of MHMR for an indefinite period for his "own welfare and the protection of others." The referral to MHMR was made by the juvenile probation department after Dixon was taken into custody for burglary. Based on the *Page 798 pleadings, evidence, argument of counsel, and certificates filed with the court, the district court found that (1) Dixon was mentally retarded and (2) Dixon was not a threat to himself or others.
Dixon was later admitted to Lakewood. Lakewood provided residential services to persons with mental disabilities. All residents of Lakewood were diagnosed as having mental retardation. Lakewood assessed the manner and degree to which the residents suffered from a disability. The services provided by Lakewood included healthcare, social services, and psychological and psychiatric evaluation and treatment, if needed. Lakewood established goals for the residents based on the resident's abilities. Training was provided to help the residents achieve these goals. Residential services did not involve incarceration. Federal regulations required the facility to promote family visits and frequent and informal leave.
Avant was employed by THM as a consulting social worker for Lakewood. Dixon attended public school at Nacogdoches Independent School District. Avant worked directly with Dixon, which included dealing with issues related to Dixon's behavior within the school system and methods of controlling that behavior. In Avant's affidavit, he stated he had never heard Dixon make threats about specific individuals. Nor had he heard of any threats Dixon had made while on weekend release. In his sworn testimony during the punishment phase of Dixon's criminal trial for Elizabeth's murder, Avant testified he was aware, before Elizabeth's murder, that Dixon had broken the law during home visits, including an incident in which Dixon reportedly had a weapon.
Harrison, Lakewood's home manager, testified Dixon had been violent at Lakewood on several occasions, including threatening to kill another resident of the facility. Harrison was also aware Dixon had broken the law during visits with his mother in Houston before Elizabeth's death. Harrison stated she had been opposed to Dixon's home visits because his behavior problems increased when he returned to Lakewood. According to Harrison, THM's interdisciplinary team made the decisions regarding whether Dixon went home for visits.
Dixon's mother also testified at Dixon's criminal trial for Elizabeth's murder that MHMR determined whether Dixon could go home for visits. Dixon's home visits had been suspended at one time because of his behavioral problems. On one occasion, Dixon's mother called Lakewood staff and told them not to send Dixon back home because of his behavior during visits.
According to Lakewood's records and sworn testimony during the punishment phase of Dixon's criminal trial, Dixon had committed numerous acts of violence, including an incident that occurred while he was visiting his mother in which he possessed a gun. Lakewood employees were aware of these incidents before Elizabeth's death.
Duty is the threshold issue in a negligence case, and the existence of a duty is a question of law for the court to decide from the circumstances surrounding the occurrence. Greater HoustonTransp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). In assessing whether a defendant owes a duty, the court considers several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden on the defendant. Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983). Of these factors, foreseeability of the risk is the *Page 799 dominant consideration. El Chico Corp. v. Poole, 732 S.W.2d 306,311 (Tex. 1987).
THM alleges the Peavys must show that Elizabeth was a readily identifiable victim of Dixon and that a special relationship existed between Dixon and THM. To support its position, THM relies on Kehler v. Eudaly, 933 S.W.2d 321 (Tex.App.-Fort Worth, 1996, writ denied), Williams v. Sun Valley Hospital,723 S.W.2d 783 (Tex.App.-El Paso 1987, writ ref'd n.r.e.), and Limon v.Gonzaba, 940 S.W.2d 236 (Tex.App.-San Antonio 1997, writ denied). However, all of these cases are Tarasoff/Thompson-type1 cases that addressed the issue of a health care provider's duty towarn a foreseeable victim. The Peavys have not pleaded negligent failure to warn. Rather, they allege in their pleadings that THM was negligent in failing to control Dixon. Therefore, THM's reliance on these cases is misplaced.
While there is generally no duty to control the conduct of third persons, this rule does not apply when a special relationship exists between the actor and the third person which imposes a duty on the actor to control the third person's conduct.Phillips, 801 S.W.2d at 525. Such relationship has been found between employer and employee, parent and child, and independent contractor and contractee under special circumstances. Id.
In Otis, the Texas Supreme Court held that employers who exercise control over an incapacitated employee owe a duty of reasonable care to third parties who are at risk of injury from that employee. Otis, 668 S.W.2d at 311. "Such a duty may be analogized to cases in which a defendant can exercise some control over a dangerous person when there is a recognizable great danger of harm to third persons." Id.; see also Graff v. Beard,858 S.W.2d 918, 920 (Tex. 1993) (stating right to control is factor in determining duty) (emphasis added). Moreover, a person may be liable for the acts of another person when he or she has superior knowledge of a particular risk the other person poses. El Chico,732 S.W.2d at 314; Texas Dep't. of Mental Health MentalRetardation v. McClain, 947 S.W.2d 694, 697 (Tex.App.-Austin 1997, no writ).
In recognizing this duty, the Court in Otis relied in part on the Restatement (Second) of Torts, section 319,2 which provides:
One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.
Restatement (Second) of Torts § 319 (1965); see Otis,668 S.W.2d at 311.
In addition to Otis, a more recent case embracing the duty imposed by Otis and section 319 is Kerrville State Hospital v.Clark, 900 S.W.2d 425 (Tex.App.-Austin, 1995), rev'd on othergrounds, 923 S.W.2d 582 (Tex. 1996). In Kerrville, the parents of a woman who had been murdered by her estranged husband while he was on outpatient commitment at a state hospital sued the hospital and MHMR for wrongful death. The court of appeals held that the *Page 800 state hospital took charge of the patient when it permitted his voluntary commitment and, as such, had a duty to use reasonable care in its release of the patient. Kerrville, 900 S.W.2d at 436. In concluding that a duty existed, the court of appeals held that the state hospital had two options in exercising control over the patient: (1) petition the court to change the outpatient commitment to inpatient commitment or (2) prescribe an injectable antipsychotic medication that would have stabilized the patient's outpatient condition. Id.3
The cases that have found that a duty to control exists do not require that the victim be readily identifiable. Rather, the focus has been on whether or not the defendant had taken charge of the dangerous person and whether or not there was a foreseeable danger to others. See McClain, 947 S.W.2d at 697 (holding one who can exercise charge over dangerous person has duty to exercise some measure of reasonable control when there is recognizable and great danger of harm to others).
We hold that a special relationship existed between THM and Dixon sufficient to impose a duty on THM to control Dixon's behavior. Clearly, THM was responsible for controlling Dixon when he became a resident of its facility pursuant to Dixon's court-ordered commitment4 and its contract with DHS to provide Dixon with services; thus, it was under a duty to use reasonable care in determining whether Dixon was allowed to continue unsupervised home visits. Like the hospital in Kerrville, THM had a choice other than allowing Dixon to go home.
In the instant case, the risk, foreseeability, and likelihood of injury were within the knowledge of THM. Evidence in the record indicates Dixon's behavior worsened during home visits. The record is replete with incidents of violence by Dixon of which THM was aware, including an incident in which Dixon possessed a gun. Further, THM had superior knowledge of Dixon's violent behavior. Therefore, the trier of fact in this case should be left free to decide whether THM acted reasonably, considering it had a duty to control Dixon and had the authority to restrict his unsupervised home visits. As the summary judgment proof raises fact questions concerning the reasonableness of THM's conduct, a fact issue is present and summary judgment was improper.
Point of error one is sustained.
Point of error two is overruled.
While we recognize that section 319 has not been adopted as the law in Texas, we find it persuasive that the Texas Supreme Court relied on section 319 in Otis and that four justices relied on section 319 in their dissent in KerrvilleState Hospital v. Clark, 923 S.W.2d 583 (Tex. 1996).
In a 5-4 decision, the Texas Supreme Court reversed the judgment of the court of appeals and rendered judgment for Kerrville on the grounds that Kerrville had not waived its sovereign immunity. The majority opinion never addressed the issue of duty.
Justice Abbott, joined by Chief Justice Phillips and Justices Cornyn and Spector, dissented. The dissent went beyond the issue of sovereign immunity and addressed the merits of the negligence claim, specifically the element of duty, stating that the Restatement (Second) of Torts, section 319, established a duty of care in this case.