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FILED
DALLAS COUNTY
8/30/2016 12:18:51 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO DC-15-07174
JOHN DOE I, INDIVIDUALLY AND AS NEXT § IN THE DISTRICT COURT
FRIEND OF JOHN DOE II, A MINOR §
§
Plaintiffs, §
§
vs. § DALLAS COUNTY, TEXAS
§
THE ANDERSON PRIVATE SCHOOL, WILLIAM§
C. ANDERSON, INDIVIDUALLY, LEVONNA C.§
ANDERSON, INDIVIDUALLY, ALEXANDER A.§
ANDERSON, INDIVIDUALLY, RIPLEY §
ENTERTAINMENT, INC. AND JIM PATTISON §
U.S.A., INC. §
§
Defendants. § 44TH JUDICIAL DISTRICT
DEFENDANT RIPLEY ENTERTAINMENT, INC. AND JIM PATTISON U.S.A, INC.'S
NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, RIPLEY ENTERTAINMENT, INC. AND JIM PATTISON U.S.A,
INC.'S (hereinafter "Defendants"), Defendant in the above entitled and numbered cause, and files
this its No-Evidence Motion for Partial Summary Judgment and in support thereof would
respectfully represent and show unto the Court the following:
I.
BACKGROUND
This lawsuit arises from an alleged incident that occurred on October 31, 2014 at a Ripley's
Believe It or Not in Grand Prairie, Texas ("RBI ON"). Plaintiffs allege that while on a school field
trip to RBION, minor Plaintiff, John Doe II, was sexually assaulted by a school administrator
named Alexander Anderson ("Anderson".) In their Petition, Plaintiffs state that Alexander
Anderson targeted Doe II because Anderson "knew about John Doe II's autism" and that
DEFENDANT'S TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE I
Anderson "took advantage of Doe's disability." Plaintiffs further allege that Anderson "was able
to lure John Doe II into the Ripley's 'Odditorium' where he knew they were alone and away from
the group ... "
Neither of the Plaintiffs reported the incident at the time it allegedly occurred, and neither
of the Plaintiffs reported the alleged incident to RBI ON immediately after John Doe II first advised
John Doe I of the alleged incident. RBION's first notice of the incident was weeks after the
incident when the Grand Prairie Police Department requested copies of RBION's surveillance
footage. No allegations of assault, violent crime, a crime against any person, or inappropriate
sexual conduct at RBION have ever been reported to RBI ON prior to Plaintiffs' allegations.
Based upon the undisputed facts and the pertinent case law, Defendant is entitled to
summary judgment because Plaintiffs cannot raise a genuine issue of material supporting a
liability finding against RBI ON.
DEFENDANTS' NO EVIDENCE MOTION FOR SUMMARY JUDGMENT
III.
NO EVIDENCE SUMMARY JUDGMENT STANDARD
The Texas Rules of Civil Procedure provide that a party may move for a summary
judgment where there is no evidence of one of the elements of a claim. Rule 166a(i) of the Texas
Rules of Civil Procedure states:
After adequate time for discovery, a party without presenting
summary judgment evidence may move for summary judgment on
the ground that there is no evidence of one or more essential
elements of a claim or defense on which an adverse party would
have the burden of proof at trial. The motion must state the
DEFENDANT'S TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 2
elements as to which there is no evidence. The court must grant the
motion unless the respondent produces summary judgment
evidence raising a genuine issue of material fact.
A no evidence summary judgment is the functional equivalent of a pre-trial directed
verdict. Aguirre v. South Tex. Blood and Tissue Center, 2 S.W.3d 454 (Tex.App.-- San Antonio
1999, writ denied). The new no-evidence summary judgment shifts the burden of proof to the
non-movant to present enough evidence to be entitled to a trial. If the non-movant is unable to
provide enough evidence, then the trial court must grant the motion. Lampasas v. Spring Center,
Inc., 988 S.W.2d 428, 432 (Tex.App.-- Houston [14th Dist.]l999, n.p.h.).
IV.
ADEQUATE TIME
This lawsuit was filed on June 24, 2015 and is set for trial on February 27, 2017. The
parties have conducted party depositions and written discovery. It is therefore proper for this Court
to consider this no-evidence motion for summary judgment. See TEX. R. CIV. P. 166a(i).
III.
ARGUMENTS AND AUTHORITIES
Defendants are entitled to summary judgment as a matter of law on all causes of action
Plaintiff has brought against RBI ON because Plaintiffs can present no evidence to support all
elements of their claims. Specifically, Defendant would show the following:
1. Premises liability:
Plaintiff alleges that Doe II was an invitee of RBI ON and owed a duty of care to those who
may be harmed by criminal acts on the premises, where RBI ON controlled the security and safety
of the premises. Plaintiff further alleges that the risk of criminal conduct was both unreasonable
and foreseeable, that RBI ON was aware of or should have been aware of the potential criminal acts
DEFENDANT'S TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 3
of assault on the property, and that RBI ON breached the duty by failing to have adequate and
proper security and safeguards for John Doe II.
The elements for Plaintiffs premises liability cause of action are:
1) That an unreasonable risk of criminal conduct was foreseeable by the Defendant;
2) The Defendant failed to warn against or take measures to prevent the criminal conduct;
3) The Plaintiff was injured; and
4) The Defendant's acts or omissions were the proximate cause of Plaintiffs injuries.
Plaintiffs are attempting to hold Defendant liable for the criminal acts of a third party by
alleging that Defendants failed to take appropriate security measures to prevent the alleged act of
Defendant Alexander Anderson. In a premises liability cause of action regarding the criminal acts
of third parties, the Texas Supreme Court has imposed a very strict standard governing the
foreseeability element (element I) of Plaintiffs' claims. TimberwalkApartments Partners, Inc. v.
Cain, 972 S.W.2d 749, 753 (Tex. 1998). The foreseeability of an unreasonable risk of criminal
conduct is a prerequisite to imposing a duty of care on a person who owns or controls premises to
protect others on the property from the risk. !d. Once this prerequisite is met, the parameters of the
duty must still be determined. /d. "[C]rime may be visited upon virtually anyone at any time or
place" but criminal conduct of a specific nature at a particular location is never foreseeable merely
because crime is increasingly random and violent and may possibly occur almost anywhere,
especially in a large city. Lefmark Management Co. v. Old, 946 S.W.2d 52, 53, (Tex. 1997). A
duty exists only when the risk of criminal conduct is so great that it is both unreasonable and
foreseeable. Timberwalk, 972 S.W.2d at 757. Whether such risk was foreseeable must not be
determined in hindsight but rather in light of what the premises owner knew or should have known
before the criminal act occurred. !d.
DEFENDANT'S TRADITIONAL AND NO· EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 4
In determining whether the occurrence of certain criminal conduct on a landowner's
property should have been foreseen (and therefore whether the defendant owes Plaintiff a duty),
courts must consider (1) whether any criminal conduct previously occurred on or near the
property, (2) how recently it occurred, (3) how often it occurred, (4) how similar the conduct was
to the conduct on the property, and (5) what publicity was given the occurrences to indicate that the
landowner knew or should have known about them. Timberwalk, 972 S.W.2d at 757. These factors
are commonly referred to as proximity, publicity, recency, frequency, and similarity. If, and only
if, the Plaintiff presents evidence to show that an unreasonable risk of criminal conduct was
foreseeable, the court may then move on to whether the Defendant failed to warn or protect and
whether there was a causal link between Plaintiffs injuries and the Defendant's acts or omissions.
Defendant would show that Plaintiff has produced no evidence and can produce no
evidence to support elements 1-4 of their premises liability cause of action: (1) That an
unreasonable risk of criminal conduct was foreseeable by the Defendant; 2) The Defendant failed
to warn against or take measures to prevent the criminal conduct; 3) The Plaintiff was injured; and
4) The Defendant's acts or omissions were the proximate cause of Plaintiffs injuries.
Because Plaintiffs are unable to present any evidence supporting their premises liability
cause of action, Defendant would show that it is entitled to summary judgement as a matter oflaw.
VI.
CONCLUSION
The evidence and case law presented conclusively establish that Plaintiffs' premises
liability claims are insupportable. Therefore, Defendant is entitled to summary judgment as a
matter of law.
WHEREFORE, PREMISES CONSIDERED, Defendant RIPLEY ENTERTAINMENT,
DEFENDANT'S TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 5
INC. AND JIM PATTISON U.S.A, INC. pray that this Court enter summary judgment in its
favor and that Plaintiffs take nothing on these claims against this Defendant, that this Defendant
recover its costs from Plaintiff, and for all such further reliefthat this Court deems just and proper.
Respectfully submitted,
S. TODD PARKS- 15526520
10440 North Central Expressway
Meadow Park Tower, Suite 1500
Dallas, Texas 75231
Phone: 214-749-4805
Fax:214-760-1670
Email: todd. parks@wbclawfirm.com
ATTORNEY FOR DEFENDANT
RIPLEY ENTERTAINMENT, INC. AND JIM
PATTISON U.S.A, INC.
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has ~r~en E-served, in
compliance with Rule 21 a of the Texas Rules of Civil Procedure, on this~11ax ugust 2016.
S. TODD PARKS
DEFENDANT'S TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 6
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FILED DALLAS COUNTY 8/30/2016 12:18:51 PM FELICIA PITRE DISTRICT CLERK CAUSE NO DC-15-07174 JOHN DOE I, INDIVIDUALLY AND AS NEXT § IN THE DISTRICT COURT FRIEND OF JOHN DOE II, A MINOR § § Plaintiffs, § § vs. § DALLAS COUNTY, TEXAS § THE ANDERSON PRIVATE SCHOOL, WILLIAM§ C. ANDERSON, INDIVIDUALLY, LEVONNA C.§ ANDERSON, INDIVIDUALLY, ALEXANDER A.§ ANDERSON, INDIVIDUALLY, RIPLEY § ENTERTAINMENT, INC. AND JIM PATTISON § U.S.A., INC. § § Defendants. § 44TH JUDICIAL DISTRICT DEFENDANT RIPLEY ENTERTAINMENT, INC. AND JIM PATTISON U.S.A, INC.'S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, RIPLEY ENTERTAINMENT, INC. AND JIM PATTISON U.S.A, INC.'S (hereinafter "Defendants"), Defendant in the above entitled and numbered cause, and files this its No-Evidence Motion for Partial Summary Judgment and in support thereof would respectfully represent and show unto the Court the following: I. BACKGROUND This lawsuit arises from an alleged incident that occurred on October 31, 2014 at a Ripley's Believe It or Not in Grand Prairie, Texas ("RBI ON"). Plaintiffs allege that while on a school field trip to RBION, minor Plaintiff, John Doe II, was sexually assaulted by a school administrator named Alexander Anderson ("Anderson".) In their Petition, Plaintiffs state that Alexander Anderson targeted Doe II because Anderson "knew about John Doe II's autism" and that DEFENDANT'S TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE I Anderson "took advantage of Doe's disability." Plaintiffs further allege that Anderson "was able to lure John Doe II into the Ripley's 'Odditorium' where he knew they were alone and away from the group ... " Neither of the Plaintiffs reported the incident at the time it allegedly occurred, and neither of the Plaintiffs reported the alleged incident to RBI ON immediately after John Doe II first advised John Doe I of the alleged incident. RBION's first notice of the incident was weeks after the incident when the Grand Prairie Police Department requested copies of RBION's surveillance footage. No allegations of assault, violent crime, a crime against any person, or inappropriate sexual conduct at RBION have ever been reported to RBI ON prior to Plaintiffs' allegations. Based upon the undisputed facts and the pertinent case law, Defendant is entitled to summary judgment because Plaintiffs cannot raise a genuine issue of material supporting a liability finding against RBI ON. DEFENDANTS' NO EVIDENCE MOTION FOR SUMMARY JUDGMENT III. NO EVIDENCE SUMMARY JUDGMENT STANDARD The Texas Rules of Civil Procedure provide that a party may move for a summary judgment where there is no evidence of one of the elements of a claim. Rule 166a(i) of the Texas Rules of Civil Procedure states: After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the DEFENDANT'S TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 2 elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. A no evidence summary judgment is the functional equivalent of a pre-trial directed verdict. Aguirre v. South Tex. Blood and Tissue Center, 2 S.W.3d 454 (Tex.App.-- San Antonio 1999, writ denied). The new no-evidence summary judgment shifts the burden of proof to the non-movant to present enough evidence to be entitled to a trial. If the non-movant is unable to provide enough evidence, then the trial court must grant the motion. Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 432 (Tex.App.-- Houston [14th Dist.]l999, n.p.h.). IV. ADEQUATE TIME This lawsuit was filed on June 24, 2015 and is set for trial on February 27, 2017. The parties have conducted party depositions and written discovery. It is therefore proper for this Court to consider this no-evidence motion for summary judgment. See TEX. R. CIV. P. 166a(i). III. ARGUMENTS AND AUTHORITIES Defendants are entitled to summary judgment as a matter of law on all causes of action Plaintiff has brought against RBI ON because Plaintiffs can present no evidence to support all elements of their claims. Specifically, Defendant would show the following: 1. Premises liability: Plaintiff alleges that Doe II was an invitee of RBI ON and owed a duty of care to those who may be harmed by criminal acts on the premises, where RBI ON controlled the security and safety of the premises. Plaintiff further alleges that the risk of criminal conduct was both unreasonable and foreseeable, that RBI ON was aware of or should have been aware of the potential criminal acts DEFENDANT'S TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 3 of assault on the property, and that RBI ON breached the duty by failing to have adequate and proper security and safeguards for John Doe II. The elements for Plaintiffs premises liability cause of action are: 1) That an unreasonable risk of criminal conduct was foreseeable by the Defendant; 2) The Defendant failed to warn against or take measures to prevent the criminal conduct; 3) The Plaintiff was injured; and 4) The Defendant's acts or omissions were the proximate cause of Plaintiffs injuries. Plaintiffs are attempting to hold Defendant liable for the criminal acts of a third party by alleging that Defendants failed to take appropriate security measures to prevent the alleged act of Defendant Alexander Anderson. In a premises liability cause of action regarding the criminal acts of third parties, the Texas Supreme Court has imposed a very strict standard governing the foreseeability element (element I) of Plaintiffs' claims. TimberwalkApartments Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998). The foreseeability of an unreasonable risk of criminal conduct is a prerequisite to imposing a duty of care on a person who owns or controls premises to protect others on the property from the risk. !d. Once this prerequisite is met, the parameters of the duty must still be determined. /d. "[C]rime may be visited upon virtually anyone at any time or place" but criminal conduct of a specific nature at a particular location is never foreseeable merely because crime is increasingly random and violent and may possibly occur almost anywhere, especially in a large city. Lefmark Management Co. v. Old, 946 S.W.2d 52, 53, (Tex. 1997). A duty exists only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable. Timberwalk, 972 S.W.2d at 757. Whether such risk was foreseeable must not be determined in hindsight but rather in light of what the premises owner knew or should have known before the criminal act occurred. !d. DEFENDANT'S TRADITIONAL AND NO· EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 4 In determining whether the occurrence of certain criminal conduct on a landowner's property should have been foreseen (and therefore whether the defendant owes Plaintiff a duty), courts must consider (1) whether any criminal conduct previously occurred on or near the property, (2) how recently it occurred, (3) how often it occurred, (4) how similar the conduct was to the conduct on the property, and (5) what publicity was given the occurrences to indicate that the landowner knew or should have known about them. Timberwalk, 972 S.W.2d at 757. These factors are commonly referred to as proximity, publicity, recency, frequency, and similarity. If, and only if, the Plaintiff presents evidence to show that an unreasonable risk of criminal conduct was foreseeable, the court may then move on to whether the Defendant failed to warn or protect and whether there was a causal link between Plaintiffs injuries and the Defendant's acts or omissions. Defendant would show that Plaintiff has produced no evidence and can produce no evidence to support elements 1-4 of their premises liability cause of action: (1) That an unreasonable risk of criminal conduct was foreseeable by the Defendant; 2) The Defendant failed to warn against or take measures to prevent the criminal conduct; 3) The Plaintiff was injured; and 4) The Defendant's acts or omissions were the proximate cause of Plaintiffs injuries. Because Plaintiffs are unable to present any evidence supporting their premises liability cause of action, Defendant would show that it is entitled to summary judgement as a matter oflaw. VI. CONCLUSION The evidence and case law presented conclusively establish that Plaintiffs' premises liability claims are insupportable. Therefore, Defendant is entitled to summary judgment as a matter of law. WHEREFORE, PREMISES CONSIDERED, Defendant RIPLEY ENTERTAINMENT, DEFENDANT'S TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 5 INC. AND JIM PATTISON U.S.A, INC. pray that this Court enter summary judgment in its favor and that Plaintiffs take nothing on these claims against this Defendant, that this Defendant recover its costs from Plaintiff, and for all such further reliefthat this Court deems just and proper. Respectfully submitted, S. TODD PARKS- 15526520 10440 North Central Expressway Meadow Park Tower, Suite 1500 Dallas, Texas 75231 Phone: 214-749-4805 Fax:214-760-1670 Email: todd. parks@wbclawfirm.com ATTORNEY FOR DEFENDANT RIPLEY ENTERTAINMENT, INC. AND JIM PATTISON U.S.A, INC. CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has ~r~en E-served, in compliance with Rule 21 a of the Texas Rules of Civil Procedure, on this~11ax ugust 2016. S. TODD PARKS DEFENDANT'S TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 6