Preview
FILED
DALLAS COUNTY
11/23/2016 12:50:22 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-15-07174
JOHN DOE I, INDIVIDUALL YAND AS NEXT § IN THE DISTRICT COURT
FRIEND OF JOHN DOE II, A MINOR §
Plaintiffs, §
§
vs. §
§ 44TH JUDICIAL DISTRICT
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. § DALLASCOUNTY,TEXAS
DEFENDANT RIPLEY ENTERTAINMENT, INC. AND JIM PATTISON U.S.A, INC.'S
NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING
GROSS NEGLIGENCE
Ripley Entertainment, Inc. and Jim Pattison U.S.A., Inc. (hereinafter "Defendants") file
this No-Evidence Motion for Partial Summary Judgment Regarding Gross Negligence, and
respectfully show the Court as follows:
BACKGROUND FACTS
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
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 .... "
In Plaintiffs Second Amended Petition Plaintiffs allege that Defendants are liable for
gross negligence. (Second Amended Pet. at 23-25)
DEFENDANT RIPLEY ENTERTAINMENT, INC. AND JIM PATTISON U.S.A, INC.'S NO EVIDENCE MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING GROSS NEGLIGENCE
0287-78669 PAGE 1
STANDARD OF REVIEW
A no-evidence summary judgment motion under Rule 166a(i) is essentially a motion for a
pretrial directed verdict; it requires the nonmoving party to present evidence raising a genuine
issue of material fact supporting each element contested in the motion. TEX. R. CIV. P. 166a(i);
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006). The summary judgment rule
provides 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
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.
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, no pet.). Adequate time has passed. 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).
NO EVIDENCE OF GROSS NEGLIGENCE
A. Negligence is a prerequisite of gross negligence.
"One's conduct cannot be grossly negligent without being negligent." Trevino v.
Lightning Laydown, Inc., 782 S.W.2d 946, 949 (Tex. App.-Austin 1990, writ denied). By
separate motions for partial summary judgment, Defendants assert that Plaintiffs have no evidence
to support any of their general negligence claims, in any of the forms presented (premises liability,
Restatement, etc.). Because a finding of gross negligence is necessarily predicated on a finding of
DEFENDANT RIPLEY ENTERTAINMENT, INC. AND JIM PATTISON U.S.A, INC.'S NO EVIDENCE MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING GROSS NEGLIGENCE
0287-78669 PAGE 2
general negligence, and Plaintiffs have no evidence to support a general negligence claim,
Plaintiffs' gross negligence claim fails as a matter of law.
B. No evidence of gross negligence.
Gross negligence has two elements, both of which Plaintiffs must prove by clear and
convincing evidence. "First, viewed objectively from the actor's standpoint, the act or omission
complained of must depart from the ordinary standard of care to such an extent that it creates an
extreme degree of risk of harming others." Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue,
271 S.W.3d 238, 248 (Tex. 2008); TEX. CJV. PRAC. & REM. CODE§ 41.001(11)(A). "'Extreme
risk' is not 'a remote possibility of injury or even a high probability of minor harm, but rather the
likelihood of serious injury to the plaintiff."' Hogue, 271 S.W.3d at 248. "[T]he risk must be
examined prospectively from the perspective of the actor, not in hindsight." !d. "Second, the
actor must have actual, subjective awareness of the risk involved and choose to proceed in
conscious indifference to the rights, safety, or welfare of others." !d.
The Texas Supreme Court repeatedly has emphasized that 'what separates ordinary
negligence from gross negligence is the defendant's state of mind; in other words, the plaintiff
must show that the defendant knew about the peril, but his acts or omissions demonstrate that he
did not care."' Ardoin v. Anheuser-Busch, Inc., 267 S.W.3d 498 503, 503 (Tex. App.-Houston
[14th Dist.] 2008, no pet.) (citing Diamond Shamrock Ref Co. v. Hall, 168 S.W.3d 164, 173 (Tex.
2005)). Conduct that is "merely thoughtless, careless, or not inordinately risky" is not grossly
negligent. Id. Thus, Plaintiffs cannot prove the two prongs of their gross negligence claim
through evidence of ordinary negligence or even of bad faith. Wal-Mart Stores, Inc. v. Alexander,
868 S.W.2d 322, 326 (Tex. 1993); Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785
(Tex. 2001)).
DEFENDANT RIPLEY ENTERTAINMENT, INC. AND JIM PATTISON U.S.A, INC.'S NO EVIDENCE MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING GROSS NEGLIGENCE
0287-78669 PAGE 3
Because there is no evidence of any of either of two elements of a gross negligence claim,
Defendants are entitled to summary judgment as a matter oflaw.
CONCLUSION & PRAYER
Plaintiffs have not and cannot produce evidence to support their gross negligence claims.
Therefore, Defendants are entitled to summary judgment as a matter of law. Defendants therefore
pray that this Court enter summary judgment in its favor and that Plaintiffs take nothing on these
claims against these Defendants, that these Defendants recover their costs from Plaintiffs, and for
all such further relief that this Court deems just and proper.
Respectfully submitted,
WALTERS, BALIDO & C IN, LLP
~
By:~
S. TODD PARKS- 15526520
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
(214) 749-4805
(214) 760-1670 (Facsimile)
todd.parks@wbclawfirm.com
Service of Documents:
ParksEDocsNotifications@wbclawfirm.com
ATTORNEY FOR DEFENDANTS
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 been served, in
compliance with Rule 2la of the Texas Rules of Civil Procedure, on this~ day of November
2016. ~
~-~--32c---
s. ()D PARKS
DEFENDANT RIPLEY ENTERTAINMENT, INC. AND JIM PATTISON U.S.A, INC.'S NO EVIDENCE MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING GROSS NEGLIGENCE
0287-78669 PAGE 4
Preview
FILED DALLAS COUNTY 11/23/2016 12:50:22 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-15-07174 JOHN DOE I, INDIVIDUALL YAND AS NEXT § IN THE DISTRICT COURT FRIEND OF JOHN DOE II, A MINOR § Plaintiffs, § § vs. § § 44TH JUDICIAL DISTRICT 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. § DALLASCOUNTY,TEXAS DEFENDANT RIPLEY ENTERTAINMENT, INC. AND JIM PATTISON U.S.A, INC.'S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING GROSS NEGLIGENCE Ripley Entertainment, Inc. and Jim Pattison U.S.A., Inc. (hereinafter "Defendants") file this No-Evidence Motion for Partial Summary Judgment Regarding Gross Negligence, and respectfully show the Court as follows: BACKGROUND FACTS 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 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 .... " In Plaintiffs Second Amended Petition Plaintiffs allege that Defendants are liable for gross negligence. (Second Amended Pet. at 23-25) DEFENDANT RIPLEY ENTERTAINMENT, INC. AND JIM PATTISON U.S.A, INC.'S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING GROSS NEGLIGENCE 0287-78669 PAGE 1 STANDARD OF REVIEW A no-evidence summary judgment motion under Rule 166a(i) is essentially a motion for a pretrial directed verdict; it requires the nonmoving party to present evidence raising a genuine issue of material fact supporting each element contested in the motion. TEX. R. CIV. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006). The summary judgment rule provides 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 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. 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, no pet.). Adequate time has passed. 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). NO EVIDENCE OF GROSS NEGLIGENCE A. Negligence is a prerequisite of gross negligence. "One's conduct cannot be grossly negligent without being negligent." Trevino v. Lightning Laydown, Inc., 782 S.W.2d 946, 949 (Tex. App.-Austin 1990, writ denied). By separate motions for partial summary judgment, Defendants assert that Plaintiffs have no evidence to support any of their general negligence claims, in any of the forms presented (premises liability, Restatement, etc.). Because a finding of gross negligence is necessarily predicated on a finding of DEFENDANT RIPLEY ENTERTAINMENT, INC. AND JIM PATTISON U.S.A, INC.'S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING GROSS NEGLIGENCE 0287-78669 PAGE 2 general negligence, and Plaintiffs have no evidence to support a general negligence claim, Plaintiffs' gross negligence claim fails as a matter of law. B. No evidence of gross negligence. Gross negligence has two elements, both of which Plaintiffs must prove by clear and convincing evidence. "First, viewed objectively from the actor's standpoint, the act or omission complained of must depart from the ordinary standard of care to such an extent that it creates an extreme degree of risk of harming others." Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008); TEX. CJV. PRAC. & REM. CODE§ 41.001(11)(A). "'Extreme risk' is not 'a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff."' Hogue, 271 S.W.3d at 248. "[T]he risk must be examined prospectively from the perspective of the actor, not in hindsight." !d. "Second, the actor must have actual, subjective awareness of the risk involved and choose to proceed in conscious indifference to the rights, safety, or welfare of others." !d. The Texas Supreme Court repeatedly has emphasized that 'what separates ordinary negligence from gross negligence is the defendant's state of mind; in other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrate that he did not care."' Ardoin v. Anheuser-Busch, Inc., 267 S.W.3d 498 503, 503 (Tex. App.-Houston [14th Dist.] 2008, no pet.) (citing Diamond Shamrock Ref Co. v. Hall, 168 S.W.3d 164, 173 (Tex. 2005)). Conduct that is "merely thoughtless, careless, or not inordinately risky" is not grossly negligent. Id. Thus, Plaintiffs cannot prove the two prongs of their gross negligence claim through evidence of ordinary negligence or even of bad faith. Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex. 1993); Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001)). DEFENDANT RIPLEY ENTERTAINMENT, INC. AND JIM PATTISON U.S.A, INC.'S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING GROSS NEGLIGENCE 0287-78669 PAGE 3 Because there is no evidence of any of either of two elements of a gross negligence claim, Defendants are entitled to summary judgment as a matter oflaw. CONCLUSION & PRAYER Plaintiffs have not and cannot produce evidence to support their gross negligence claims. Therefore, Defendants are entitled to summary judgment as a matter of law. Defendants therefore pray that this Court enter summary judgment in its favor and that Plaintiffs take nothing on these claims against these Defendants, that these Defendants recover their costs from Plaintiffs, and for all such further relief that this Court deems just and proper. Respectfully submitted, WALTERS, BALIDO & C IN, LLP ~ By:~ S. TODD PARKS- 15526520 Meadow Park Tower, Suite 1500 10440 North Central Expressway Dallas, Texas 75231 (214) 749-4805 (214) 760-1670 (Facsimile) todd.parks@wbclawfirm.com Service of Documents: ParksEDocsNotifications@wbclawfirm.com ATTORNEY FOR DEFENDANTS 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 been served, in compliance with Rule 2la of the Texas Rules of Civil Procedure, on this~ day of November 2016. ~ ~-~--32c--- s. ()D PARKS DEFENDANT RIPLEY ENTERTAINMENT, INC. AND JIM PATTISON U.S.A, INC.'S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING GROSS NEGLIGENCE 0287-78669 PAGE 4