Case Information
*0 FILED IN 8th COURT OF APPEALS EL PASO, TEXAS 10/27/2016 3:58:06 PM DENISE PACHECO Clerk *1 ACCEPTED 08-16-00134-cv EIGHTH COURT OF APPEALS EL PASO, TEXAS 08-16-00134-CV 10/27/2016 3:58:06 PM DENISE PACHECO CLERK Case Number 08-16-00134-CV IN THE EIGHTH COURT OF APPEALS at El Paso, Texas
PAUL FLETCHER and wife, JAIME FLETCHER as Next Friends of Their Daughter, IF,
Appellants,
v. STEVEN STRIFLER, SS, and SYDNEY STRIFLER, Appellees.
O N A PPEAL FROM THE 442 ND J UDICIAL D ISTRICT C OURT , D ENTON C OUNTY , T EXAS T RIAL C OURT C AUSE N O . 16-03909-443 APPELLANTS’ BRIEF
THE LAW OFFICE OF ALDOUS\WALKER, LLP
CHRISTOPHER A. PAYNE, PLLC
Christopher A. Payne Charla G. Aldous
State Bar No. 15651500 State Bar No. 20545235
9101 LBJ Freeway, Suite 760 Brent R. Walker
Dallas, Texas 75231 State Bar No. 24047053
Telephone Number (972) 755-1954 Heather L. Long
Facsimile Number (214) 453-2435 State Bar No. 24055865
2311 Cedar Springs Rd., Suite 200 Dallas, TX 75201 Telephone Number (214)526-5595 ATTORNEYS FOR APPELLANTS Facsimile Number (214) 526-5525
PAUL FLETCHER and wife,
JAIME FLETCHER as Next
Friends of their Daughter, IF October 27, 2016
ORAL ARGUMENT REQUESTED *2 IDENTITY OF PARTIES AND COUNSEL 1. A PPELLANTS
Paul Fletcher, Jaime Fletcher, as Next Friends of IF 2. A PPELLANTS ’ T RIAL AND A PPELLATE C OUNSEL
Christopher A. Payne
L AW O FFICE OF C HRISTOPHER A. P AYNE , PLLC
9101 LBJ Freeway, Suite 760
Dallas, Texas 75243
Charla G. Aldous
Brent Walker
Heather Long
A LDOUS \W ALKER , LLP
2311 Cedar Springs Road, Suite 200
Dallas, Texas 75201
3. A PPELLEES
Steven Strifler, Sydney Strifler, and SS
4. A PPELLEES ’ T RIAL AND A PPELLATE C OUNSEL
Carlos Balido
Matt Montgomery
W ALTERS , B ALIDO & C RAIN , LLP
10440 N. Central Expressway, Suite 1500
Dallas, Texas 75231
5. D ISTRICT C OURT T RIAL J UDGE
Hon. Tiffany Haertling sitting as Judge of the 442 nd Judicial District Court of Denton County, Texas
ii *3 TABLE OF CONTENTS
Pages Identity of Parties and Counsel ..................................................................... iii
Table of Contents ............................................................................................. iv
Index of Authorities ......................................................................................... vi
Statement of the Case ........................................................................................ 1
Issue Presented ................................................................................................... 2
Statement of Facts ............................................................................................... 3
I. Allowing Teenagers in the Home Unsupervised Proximately Caused IF Harm ............................................................................... 3 II. The Strifler Teenagers Had Notice of the Danger AV Posed to IF ......................................................................................................... 7 III. Leaving the House Unsupervised Created an Environment for the Teenagers to Break Rules and Take Risks ........................ 11 IV. Steven Strifler Learned About the Party and Did Nothing .. 14 V. IF Experienced Harm .................................................................... 15 Standard of Review .......................................................................................... 15
Summary of the Argument ............................................................................. 16
Argument ........................................................................................................... 17
I. The Trial Court Erred if it Granted Summary Judgment on iii *4 Duty ................................................................................................. 17 A. The Striflers are Not Social Hosts Entitled to Invoke the Dram Shop Act Exclusive Remedy Provision ................... 18 1. The Act only applies to those who serve or sell alcohol .................................................................................................. 20 2. Providing alcohol must proximately cause the harm ... 22 3. Common-law liability not foreclosed to Plaintiffs under age eighteen .............................................................. 24 B. The Striflers’ Duties t o IF Arose Under Common-Law ... 25
II. The Trial Court Erred If It Granted Summary Judgment on Proximate Cause ............................................................................ 30 A. The Acts of Third Parties Did Not Destroy the Causal Links Between the Striflers’ Negligence and IF’s Injuries .................................................................................................... 31 Prayer .................................................................................................................. 34
Certificate of Service ........................................................................................ 35
Certificate of Compliance .............................................................................. 36
iv *5 INDEX OF AUTHORITIES
Pages Cases:
Carter v. Abbyad ,
299 S.W.3d 892 (Tex. App. — Austin 2009, no pet.) ................. 23, 26, 27
Dew v. Crown Derrick Erectors, Inc. ,
208 S.W.3d 448 (Tex. 2016) .......................................................................... 31 Doe v. Messina ,
349 S.W.3d 797 (Tex. App. — Houston [14 th Dist.] 2011, pet. denied) ....... ............................................................................................................. 31, 32, 33 El Chico Corp. v. Poole ,
732 S.W.2d 306, 312 (Tex. 1987) ................................................................. 26 Ford Motor Co. v. Ridgway ,
135 S.W.3d 598, 600 (Tex. 2004) ................................................................. 15 Golden v. Tips ,
651 S.W.2d 364 (Tex. App. — Tyler 1983, no writ) .................................. 26
Graff v. Beard ,
858 S.W.2d 918 (Tex. 1993) ....................................................... 18, 19, 20, 25 Greater Hous. Transp. Co. v. Phillips ,
801 S.W.2d 523 (Tex. 1990) ............................................................. 23, 25, 26 Inc. v. Parker ,
249 S.W.3d 392, 399 (Tex. 2008) ................................................................. 16 Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding ,
289 S.W.3d 844, 848 (Tex. 2009) ................................................................. 16 v *6 Nall v. Plunkett ,
404 S.W.3d 552 (Tex. 2013) ......................................................................... 23 Newson v. B.B. ,
306 S.W.3d 910 (Tex. App. — Beaumont 2010, pet. denied) ................... 26
Nixon v. Mr. Prop. Mgmt. Co .,
690 S.W.2d 546 (Tex. 1985) ......................................................................... 31 Reeder v. Daniel ,
61 S.W.3d 359 (Tex. 2001) ............................................................... 20, 24, 25 Smith v. Merritt ,
940 S.W.2d 602 (Tex. 1997) ......................................................................... 20 Smith v. O'Donnell ,
288 S.W.3d 417, 424 (Tex. 2009) ........................................................... 15, 16 Valence Operating Co. v. Dorsett ,
164 S.W.3d 656 (Tex. 2005) ......................................................................... 15 Williams v. Steves Indus., Inc .,
699 S.W.2d 570 (Tex. 1985) ......................................................................... 26 Statutes:
T EX . A LCO . B EV . C ODE § 1.06 .............................................................................. 23
T EX . A LCO . B EV . C ODE § 2.01 ........................................................................ 20, 21
T EX . A LCO . B EV . C ODE § 2.02(c) ................................................................... 20, 22
T EX . A LCO . B EV . C ODE § 2.03 .............................................................................. 20
T EX . A LCO . B EV . C ODE § 2.03(a) ......................................................................... 21
T EX . A LCO . B EV . CODE § 2.03(c) .................................................................. 24, 25
vi *7 Secondary Sources:
R ESTATEMENT (S ECOND ) OF T ORTS § 315 ...................................................... 26
R ESTATEMENT (S ECOND ) OF T ORTS § 323 ...................................................... 23
vii *8 STATEMENT OF THE CASE This lawsuit for damages arose from the actions Appellees took which turned their home into a dangerous place for I.F. and others. This appeal is
from a summary judgment order that granted Defendants Steven Strifler, SS,
and Sydney Strifler’s Traditional and No -Evidence Motion for Summary
Judgment in which Defendants challenged the duties owed to I.F. as well as
the foreseeability of the harm she endured. Summary judgment was made
final by an order severing I.F.’s claims against the Appellees from claims
against other Defendants named in the underlying lawsuit.
The Hon. Tiffany Haertling sitting as Judge of the 442 nd Judicial District Court of Denton County, Texas, signed the Order granting Defendants
summary judgment on April 4 th , 2016 and signed the Order granting
Defendants motion for severance on May, 18 th , 2016. Plaintiff filed a Notice of
Appeal on June 7 th , 2016.
ISSUE PRESENTED
The trial court got it wrong. IF asks this Court to reverse the order granting summary judgment on her negligence claims none of the grounds
advanced in the Striflers’ hybrid motion support the trial court’s order.
1. Mr. Strifler left his two teenage children home alone overnight. The teens gave their friends permission to take dangerous actions, including consuming drugs, at the home. Teenage boys sexually assaulted IF during the party. The Striflers argued they were social hosts relieved of common law duties to IF. The trial court erred if it agreed with them.
2. Mr. Strifler gave his children authority over the home, and they exercised that authority over their guests throughout the night. The Strifler teenagers watched as the danger increased during the night, including IF and the boys’ interactions before the assault. They chose to allow the party to continue, but claim their own negligence was not a concurrent cause. The trial court erred if it agreed with them. *10 STATEMENT OF FACTS
I . A LLOWING T EENAGERS IN THE H OME U NSUPERVISED P ROXIMATELY
C AUSED IF H ARM .
“I allowed them to stay by themselves at the house on Friday night,” admitted Steven Strifler when asked who was in charge of supervising his
children on September 28, 2012. C.R. at 220. As a father of three, Mr. Strifler
knew that children, especially teenagers, needed supervision. Id. He
specifically knew that his children, fifteen-year-old SS and sixteen-year-old
Sydney, needed supervision when he left them in his home alone while he
went out of town for the weekend. Id. Mr. Strifler could have sent the children
to stay at his parents’ home less than an hour away, but decided to let them
stay home alone instead. C.R. at 292. Indeed, that Friday night Mr. Strifler’s
teenagers took advantage of their adult-free house and held the gathering
where teenage boys sexually assaulted fourteen-year-old IF.
Mr. Strifler's decision to allow his children to stay in the family home
without adult supervision set in motion a series of events that forever changed
IF's life:
Q. You would agree with me that the kids who came over to your house on September 28, 2012, basically were unsupervised?
A. Yes, ma'am.
Q. And had you been home, I assume you would have never allowed that to happen.
A. They would have never came in the house.
Q. And, certainly, [IF] wouldn't have been in a situation where she was intoxicated in your home and got raped by two boys if you had been there, correct?
A. Whatever happened to her would not have happened if I was there.
C.R. at 233.
His, SS, took the opportunity to invite his friends to come over, which grew into the party which IF attended that Friday night. C.R. at 264 – 65. Mr.
Strifler’s other teenage child, a junior in high school, Sydney Strifler was
notified of the gathering, and took it upon herself to supervise the guests. C.R.
at 294 - Sydney Strifler Dep. at 15:24-16:12.
One of the people SS invited to the party was his classmate and teammate from the football team, AV. C.R. at 265 - SS Dep. at 18:16-19. Over
the course of the w eek before Mr. Strifler’s departure, the teenagers made
plans to take advantage of the adult-free house. C.R. at 265 – SS Dep. at 20:3-
21:7.
Based on Sydney’s recollection, there were 15 to 20 teenagers at the house during the height of the party. C.R. at 297 Sydney Strifler Dep. at 27:7-
10. Of those, only four were female —IF, AH, Sydney, and Sydney’s best frie nd
and fellow junior, Kristin. C.R. at 296-297 – Sydney Strifler Dep. at 25:25-26:13.
The gathering began with SS hanging out with his male friend DM in the
Strifler house in the presence of then sixteen-year-old Sydney. C.R. at 294 –
Sydney Strifler Dep. at 15:6-16. At around 7:00-8:00pm, the first guests arrived
and brought alcohol with them. C.R. at 294 – Sydney Strifler Dep. at 16:25-17:2.
Later, IF arrived with her friend AH and a group of freshman boys that
included AV. C.R. at 239-240 – IF Dep. at 38:15-43:5.
IF and AH met AV and the other freshman boys at the home of a male classmate down the street from the Strifler house. Id. The group walked to the
Strifler home, bringing their own alcohol with them. Id. IF remembered
accepting a beer from SS, drinking less than half of it, and walking outside to
the backyard. C.R. at 242 – IF Dep. at 49:7-50:15. Once outside, IF observed a
group of people smoking marijuana, including IG. C.R. at 242 – IF Dep. at
50:16-51:1. IF smoked marijuana, and walked back inside the house. C.R. at 242
– IF Dep. at 52:11-52:20.
Later, the guests exhausted the supply of alcoholic beverages, and a guest contacted his family friend, J.T. Abbott, to bring over more. C.R. at 265
SS Dep. at 20:16-21:7. Abbott brought the alcohol, and IF remembered his
arrival. C.R. at 243 – IF Dep. at 53:25-54:22.
IF recalled seeing AV with a baggie containing Xanax pills and hearing others joking about how it would be funny to put the drugs in people’s drinks.
C.R. at 244-245 – IF Dep. at 59:22-61:8. Later, IF was handed a cup that she
believed to contain a mixture of Coca-Cola and liquor. C.R. at 243-244 – IF Dep.
at 55:24-57:1. After starting to drink from the cup, IF began to have gaps in her
memory. C.R. at 244 – IF Dep. at 58:17-59:10.
SS, Sydney, and the other guests noticed that IF became completely incoherent very quickly. C.R. at 278-279 – SS Dep. 71:4-12, 74:6-10; C.R. at 298-
299 – Sydney Strifler Dep. at 33:8-34:23 . IF’s first memory after consuming the
drink was looking for AH and finding her in a restroom performing oral sex
on AV. C.R. at 245 – IF Dep. at 61:24-62:5. IF recalled SS being beside her and
telling him what she had seen. Id. SS responded: “Are you kidding me? No,
you didn’t see that.” C.R. at 245 – IF Dep. at 62:6-9. IF also recalled vomiting
blood in the presence of SS, and asking him to take her to the hospital. C.R. at
245 IF Dep. at 63:5-19.
After seeing AH and AV in the restroom, IF recalled leaving the house through the front door, stumbling outside, and AV following her. C.R. at 245-
246 - IF Dep. at 64:23-65:9. IF described the events that followed in the pages
cited, including: “I remember [AV] bugging me, trying to kiss me … and I wa s
falling all over the place.” C.R. at 245-247 – IF Dep. at 64:23-69:9. She cried as
she fell on the ground and felt AV push her head onto his penis. Id. IF recalled
IG joining them and the two boys trying to get her to give them oral sex at the
same time. Id. She also remembered hearing Sydney’s voice outside and J.T.
Abbott attempting to have IF perform oral sex on him. Id. The next thing IF
remembered was waking up in Mr. Strifler’s bedroom. Id.
Sydney recalled IF coming back inside the house and vomiting for approximately an hour. C.R. at 318 – Sydney Strifler Dep. at 111:4-113:7.
Sydney recognized that IF was too intoxicated to leave the house with AH and
AH’s mother. Id. She feared that AH’s mother would learn abo ut the party,
and Sydney insisted the IF stay at the Strifler house. Id. Sydney drove IF home
the following morning. Id.
II. The Strifler Teenagers Had Notice of the Danger AV Posed to IF.
SS knew that AV posed a danger to the girls who attended that party at the Strifler home while his father was away. C.R. at 281 – SS Dep. at 84:9-21
[referencing DX 29]. There were several warning signs indicating that at least
AV had every intent of engaging in sexual contact with females impaired by
alcohol at the party. Id. ; See also C.R. at 351-352 AV Dep. at 46:8-49:6. The
evening before the party, AV exchanged the following text message about the
party with AH, IF’s best friend. AV asked SS before the party if IF and AH could come over on the night boys planned to drink unsupervised in the Strifler house. C.R. at 281 - SS Dep.
at 84:9-85:21. SS could not remember if he had seen the text exchange above,
but admitted that is was possible he had seen it (though he claimed not to
understand what it meant). ( Id.) .
AV was questioned about the above text message exchange that occurred before SS allowed him to bring AH and IF to the party, and his
response was to assert his Fifth Amendment privilege against self-
incrimination. C.R. at 351 – AV Dep. at 47:16-48:7. Information available to SS
on AV’s Twitter account at the time of the party also put SS on notice that AV
wanted to have sex with girls, even if girls protested. C.R. at 353 - AV Dep. at
55:1-56:3; C.R. at 359 - Ex. 8, AV’s Public Claim “It’s Not Rape if I Have Swag”
posted prior to the rape [DX 37]. The week before the party, SS could also see
that AV publicly announced his approval of the following Adolf Hitler
statement : “Don’t let what other people think, stop you fr om doing the things
you love.” C.R. at 353 AV Dep. at 55:1-58:14; C.R. at 362 - Ex. 9, Hitler
Approval [DX 38].
Further, AV publicly displayed approval of rape and fixation on rape just four days prior to SS allowing him to come into the unsupervised Strifler
house with two girls, one of which he had already expressed a desire to obtain
oral sex from that she stated she would not consent to give. C.R. at 354 - AV
Dep. at 58:15-59:24; C.R. at 363 - Ex. 10, Raped in Hell Post 9/24/12 [DX 39]. *17 In fact, SS and Sydney witnessed AV having oral sex with AH (the girl that had told AV “no” when he requested oral sex at the party via text message
the previous day). C.R. at 351 AV Dep. at 47:16-48:7; C.R. at 344 - AV Text
Re: Inviting IF and AH [DX 29 & DX 34]; C.R. at 267 - SS Dep. at 26:18-34:1;
C.R. at 320-321 - Sydney Strifler Dep. at 119:20-122:12. Sydney confirmed that
she and SS witnessed this act before IF was raped. C.R. at 320-321 - Sydney
Strifler Dep. at 119:20-122:12 . Sydney’s testimony about the sequence of events
is consistent with IF’s recollection and provides strong evidence that Sydney
was present when AV was showing the Xanax around the kitchen and talking
with others about putting it in drinks as IF recalls. According to Sydney, she
was in the kitchen at the beginning of the party before those events happened
to AH and after AV arrived. C.R. at 295 – Sydney Strifler Dep. at 19:21-20:14.
III. L EAVING THE H OUSE U NSUPERVISED C REATED AN E NVIRONMENT FOR THE
T EENAGERS TO B REAK R ULES AND T AKE R ISKS .
Allowing teenagers to stay home alone on a Friday night without any supervision created an environment ripe for breaking rules and taking risks.
Although he did not keep alcoholic beverages in the home, Steven Strifler had
previously caught Sydney intoxicated and in possession of alcohol. C.R. at 220
– Steven Strifler Dep. at 16:25-17:2; C.R. at 222 – Steven Strifler Dep. at 22:9-
23:23. Since there was no alcohol in the home, the teenagers brought their own
beverages and used the home as a place to consume their drinks since there
were no adults present to stop them.
Sydney, a high school junior at the time, was at home when her brother’s freshman friends began to arrive with alcohol, marijuana, and other
substances. C.R. at 294-295 – Sydney Strifler Dep. at 14:11-29:24; C.R. at 266-
267 SS Dep. at 24:1-26:2. She knew SS, AV, and the other freshmen intended
to experiment with alcohol since there were no parents in the house and she
knew that drinking alcohol, particularly when consumed in combination with
other substances, could lead to several harmful situations. C.R. at 293-294 –
Sydney Strifler Dep. at 11:16-14:10; C.R. at 294-295 – Sydney Strifler Dep. at
14:11- 29:24. Rather than tell SS’s guests to leave or call her father to report the
gathering, Sydney decided to let the group stay and undertook to supervise
them herself. C.R. at 294 – Sydney Strifler Dep. at 15:21-16:12. Sydney believed
herself to be mature enough to supervise and control the party. Id. In her own
words: “At the moment it didn’t concern me because I wasn’t aware my father
was going to find out, so I was okay with them drinking that small amount of
alcohol f I was there to watch them.” C.R. at 295 – Sydney Strifler Dep. at 19:3-
10.
The kitchen quickly transformed into a bar with alcohol for the teenagers to consume. C.R. at 294-298 – Sydney Strifler Dep. at 14:11-29:24. The backyard
became a place for the teenagers to smoke marijuana. C.R. at 297 – Sydney
Dep. at 27:14-28:12. Illicit sexual acts began occurring in bedrooms and
bathrooms. C.R. at 266-269 - SS Dep. at 24:19-35:23; C.R. at 297, 316-326 -
Sydney Dep. at 26:18-27:7, 102:11-144:24.
During the course of the party, Sydney became nervous about the guests opening and closing the doors to the house, and feared that it would alert the
neighbors. C.R. at 295-296 Sydney Strifler Dep. at 21:24-22:13. Sydney
instructed the guests to text her if additional individuals needed to enter the
house, and she would open the doors. Id. Sydney recognized the party was
getting out of control and becoming dangerous, but chose not to call her father
or otherwise attempt to stop the growing crowd of unsupervised teenagers
going in and out of the house. C.R. at 294-298 – Sydney Dep. at 14:11-29:24.
SS and Sydney knew that their guests were present without the knowledge of their parents in order to take advantage of the adult-free
environment. C.R. at 296 – Sydney Rep. at 25:8-27:6. Instead of stopping the
party that was getting out of hand, Sydney called her high school classmates
Kristin and Chance to help her watch over the party. Id.
Sydney personally witness AV —one of IF’s assailants— receive oral sex from the other freshman girl at the party before he sexually assaulted IF. C.R.
at 320-321 - Sydney Strifler Dep. at 119:20-122:12. SS and others at the party
witness the sexual interaction as well. C.R. at 267 - SS Dep. at 26:18-34:1. The
party was quickly getting out of control, and if SS had been in sober mind, he
would have sent everyone home when the initial supply of alcohol was
depleted. Instead, SS encouraged the other teenagers to procure more alcohol.
C.R. at 265 SS Dep. at 20:16-21:7.
After the party, SS told the police that IF was incapable of consenting to *21 sex when she was at his party: C.R. at 277-278, 285 - SS Dep. at 68:4-72:20, 98:1-
19; C.R. at 372 - Ex. 13, SS Aff. 10/29/12 [DX 26].
He described her to police as “out of it,” “falling,” and not having “a clue.”
C.R. at 278 - SS Dep. at 70:18-71:12. Sydney confirmed the same in her
statements to police and during her deposition. C.R. at 298-299 – Sydney
Strifler Dep. at 33:8-34:23.
IV. S TEVEN S TRIFLER L EARNED A BOUT THE P ARTY AND D ID N OTHING .
The mother of one of the freshman boys who attended the party called Steven Strifler when she found her son extremely intoxicated and informed
him of the party. C.R. at 220-221 – Steven Strifler Dep. at 12:11-15:15. Mr.
Strifler asked her to bang on the door and stop the party while he began calling
his children. Id. The teenagers did not answer the phone, and Mr. Strifler took
no further action until the following morning. C.R. at 221 Steven Strifler Dep.
at 14:14-16:14. Rather than co ntacting neighbors, the children’s mother, the
children’s grandparents, or the police in order to check on the situation at his
home, Mr. Strifler chose not to act. Id.
V. IF Experienced Harm.
IF has suffered severe mental anguish and developed post-traumatic stress disorder since these events occurred. C.R. at 252 IF Dep. at 89:1-91:24.
She left school as a result of the bullying and harassment by Sydney and others
as well as the trauma of having to go to school with her rapists. C.R. at 274-280
- SS Dep. at 55:16-81:12.
STANDARD OF REVIEW This appeal arises from a general order granting a hybrid motion for summary judgment on all of Appellant’s claims. Whether the trial court
erred in granting summary judgment on Appellant’s negligence claim is the
only matter raised on this appeal. Normally, appellate courts reviewing
hybrid summary judgment decisions, consider whether the non-movant met
her burden on no-evidence points before evaluating error on the propriety of
traditional summary judgment. Ford Motor Co. v. Ridgway , 135 S.W.3d 598,
600 (Tex. 2004)
This Court reviews summary judgment decisions de novo . Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). In reviewing both a
traditional and no-evidence summary judgment, it considers the evidence in
the light most favorable to the non-movant. Smith v. O'Donnell , 288 S.W.3d
417, 424 (Tex. 2009); 20801, Inc. v. Parker , 249 S.W.3d 392, 399 (Tex. 2008). It
credits evidence favorable to the non-movant if reasonable jurors could, and
disregards evidence contrary to the non-movant unless reasonable jurors
could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d
844, 848 (Tex. 2009).
Because this appeal arises from a general order that did not specify the grounds for the tria l court’s decision and both parts of the hybrid motion
raised identical grounds for summary judgment, this brief addresses the
hybrid standards for each ground raised together.
SUMMARY OF THE ARGUMENT This is a case for a jury to decide. The Striflers voluntarily engaged in conduct that turned their residential home into a dangerous place for IF and
others. They cannot use the exclusive statutory remedy provision of the Dram
Shop Act to shield themselves from the duties they owed IF under common
law. That provision only applies to providers that sell or serve alcohol for
injuries proximately caused by providing alcohol, none of which forms the
factual basis of IF’s claims against the Striflers. Further, the exclusive statutory
remedy does not apply to claims involving providing alcohol to persons under
the age of eighteen, and cannot apply here because IF was fourteen when these
events took place.
Summary judgment on proximate cause was also wrong. The sexual assault IF endured naturally progressed from the environment that Appellees
created and the actions they took. Their actions were a proximate cause of the
harm IF suffered and that cause was not superseded by others' foreseeable
criminal acts.
IF asks this Court to reverse the trial court’s order granting summary judgment on her negligence claim so that a jury can consider the case.
ARGUMENT
I. T HE T RIAL C OURT E RRED IF IT G RANTED S UMMARY J UDGMENT ON D UTY .
In their hybrid motion for summary judgment, the Striflers argued that they should not be held liable for the harm that came to IF while at their home
because they did not owe IF a legal duty. They argued that they were social
hosts liable only to the extent provided by statute for providers of alcohol.
They did not, however, challenge the duty element on any other grounds
under the no-evidence summary judgment standard. Nor did they meet their
traditional summary judgment burden to conclusively negate the element of
duty on any other basis than as social hosts.
The Striflers were not social hosts entitled to avoid the imposition of *25 other common law duties. The law does not support their position, and
neither do the facts. If the trial court granted summary judgment based on
the element of duty, it did so in error. The Striflers owed IF a duty to take
affirmative action to control or avoid increasing the danger from another
persons ’ conduct which because they at least partially created the danger by
their own acts.
A. T HE S TRIFLERS A RE N OT S OCIAL H OSTS E NTITLED TO I NVOKE THE D RAM S HOP A CT E XCLUSIVE R EMEDY P ROVISION .
This is not a social host case. This is not a case where evidence shows the hosts of the party provided alcohol to a person that was injured due to the
alcohol’s intoxicating affects. Instead, it is a case where the residents of a house
made the house available to teenagers for the purpose of engaging in
dangerous activities without adult supervision including use of illegal
drugs, drinking, and sexual assault. And a case where two of the residents
had every reason to know someone at the party intended to get sexual
intercourse from female guests who were unable to consent. And it is a case
where a resident of the home recognized the danger that was created, in part
by her own conduct, and took action to increase the danger that had been
created.
In Graff v. Beard , the Supreme Court of Texas decided whether it should *26 impose a common law duty on a social host who makes alcohol available to
an intoxicated adult guest who the host knows will be driving. 858 S.W.2d 918
(Tex. 1993). The injured person at issue in that case was a motorist hit by the
drunk guest after leaving the host ’s home. Id. at 918 – 19. The decision did not
expand beyond the facts presented by the parties to the case and did not
address situations where a person may be harmed at a social gathering where
alcohol was consumed but that harm was not proximately caused by an
intoxicated person. Id. at 919. Indeed, as noted in the dissent by Justice
Gammage and joined by Justice Doggett:
The legislature may enact a statute that creates a duty. But the legislature’s failure to act does not “ uncreate ” an existing duty. A duty created by the common law continues to exist unless and until the legislature changes it, and as such the existing common law duty applies to the defendant here.
Id. at 922.
The Graff Court placed significant emphasis on the legislature’s then - recent (1993) passage of legislation making the Texas Dram Shop Act the
exclusive basis for civil liability of commercial providers of alcohol: “The
statutory duty established by the legislature also placed a less onerous burden
on commercial providers and a correspondingly higher burden of prove on
injured parties than the common law duty. ” Id. at 919 20. The decision came
out nearly ten years before the legislature amended the Texas Dram Shop Act
to expand social host liability.
The cases relied on by the Striflers below — Reeder v. Daniel and Smith v. Merritt — also pre-dated the 2005 legislative expansion of social host liability
and involved individuals over the age of eighteen. Reeder v. Daniel , 61 S.W.3d
359 (Tex. 2001); Smith v. Merritt , 940 S.W.2d 602 (Tex. 1997). The Reeder Court
held that it was not permitted to recognize a social host cause of action under
Texas law based on the same 1993 amendments relied on by the Graff Court
to reach its conclusions and those amendments did not include any provision
for social host liability. Reeder , 61 S.W.3d at 362-65.
After Reeder and Smith were decided, the 2005 Legislature amended the Act to add a statutory duty for certain social hosts in situations involving
alcohol. Lawmakers did not, however, go so far as to expressly excuse hosts
of social gatherings from other common law duties that might exist simply
because alcohol consumption took place at the gathering. The express
language of the present statute makes its inapplicability to this case clear. See
T EX . A LCO . B EV . C ODE §§ 2.01, 2.02, 2.03.
1. The Act only applies to those who serve or sell alcohol. The presence and consumption of alcohol alone does not bring a case *28 within the Act and its limits on available causes of action. Rather, drafters
narrowly defined the class of actors and the activities they intended the
statute to address — providers that sell or serve alcohol for harms proximately
caused by such provision . See T EX . A LCO . B EV . C ODE at § 2.01 (defining
“provider” and “provision” ).
Only providers are entitled to the Act’s elimination of common law
duties, as evidenced by the express language of section 2.03(a) and (b):
(a) The liability of providers under this chapter for the actions of their employees, customers, members, or guests who are or become intoxicated is in lieu of common law or other statutory law warranties and duties of providers of alcoholic beverages. (b) This chapter does not impose obligations on a provider of alcoholic beverages other than those expressly stated in this chapter.
Id at § 2.03(a), (b) (emphasis added).
The Striflers’ own summary judgment evidence disproved their status as “providers” entitled to protection for common law duties by the Act’s
exclusive remedy provision. To be considered providers, the Striflers had to
conclusively prove they sold or served alcohol that proximately caused the
occurrence at issue. Steve Strifler testified he did not keep any alcohol in the
house at the relevant time. S.C.R. at 105 06. His (then) seventeen-year-old
daughter Sydney and son SS confirmed that they did not have alcohol to
provide teens coming to their adult-free house. S.C.R. at 120-22. Instead, the
teenagers visiting the unsupervised house brought their own alcohol with
them. S.C.R. at 142-43. Both Sydney and SS denied mixing or serving drinks to
other people at their house. S.C.R. at 120-25, 142-50. According to their own
admission, the Striflers provided an environment conducive to dangerous
activities like drinking but they did not provide alcohol to any of the
individuals involved.
2. Providing alcohol must proximately cause the harm.
Had the legislature wanted to relieve all hosts of social gatherings of
their existing common law duties to situations where providing alcohol was
not a proximate cause of the harm it would have done so. It did not when it
amended the Act to address the very narrow situation of when an adult age
twenty-one or older can be held liable for damages proximately caused by
providing the intoxication of a minor under the age of eighteen. T EX . A LCO .
B EV . C ODE at § 2.02(c). By their plain meaning, the amendment does not
wholly absolve individuals below, at, or above the age of twenty-one from
common law duties that exist in situations where the intoxication did not
proximately cause the damages at issue. Id.
In cases where allegations are made of a recognized tort separate and apart from the mere negligence in the serving of alcohol, the persons who host
a party where alcohol happens to be consumed can and should be held liable
for damages caused by breaching other common law duties. See e.g., Phillips ,
801 S.W.2d at 525 (party who agreed to help someone owes a duty); Carter v.
Abbyad , 299 S.W.3d 892, 895-98 (Tex. App. — Austin, no pet.) (recognizing an
undertaking under Restatement (S econd) of Torts § 323 constitutes a “special
relationship” or control).
The Act’s stated purpose confirms the statute was not created to eliminate common law duties in situations where alcohol is not the proximate
cause of the occurrence at issue. It exclusively deals with the safe sale and
regulation of alcoholic beverages. See T EX . A LCO . B EV . C ODE § 1.06. It does not
govern situations where a person engages in acts unrelated to the
consumption of alcohol that proximately cause injury. In fact, in Nall v.
Plunkett , the Supreme Court of Texas twice emphasized that it would not
decide the merits of a case alleging the social hosts owed duties to the plaintiff
outside the social host liability provision enacted in 2005, and instead decided
the matter pending before it on procedural grounds alone. 404 S.W.3d 552,
554 56 (Tex. 2013).
As explained in further detail later in this brief, the Striflers’ undertook actions that turned their residential home into a dangerous place for IF and others.
The sexual assault IF endured naturally progressed from the environment that
Defendants created and the actions they took. Their actions were a proximate
cause of the harm IF suffered and that cause was not superseded by others'
foreseeable criminal acts.
3. Common-law liability not foreclosed to plaintiffs under age eighteen.
Plaintiffs under the age of eighteen maintain their common law liability claims under the plain language of the exclusive statutory remedy provision:
(c) This chapter provides the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older .
T EX . A LCO . B EV . C ODE § 2.03(c) (emphasis added). If the legislature intended to
prevent minors like IF from recovering for all injuries in which they could be
harmed by the provision of alcoholic beverages, it would have included
persons under the age of eighteen in the exclusive remedy provision.
Justices on the Reeder Court recognized this very point. The concurring opinion authored by Chief Justice Phillips with Justice Hankinson and O’Neill
joining, stated:
Nothing in the Dram Shop Act itself forecloses common-law liability for an adult who provi des alcohol to a minor… If the Legislature wanted to foreclose a cause of action for providing alcohol to persons under eighteen, it could have easily written the law so that it would provide the exclusive remedy for providing alcohol to anyone, regardless of age.
Reeder , 61 S.W.3d at 365 (Phillips, CJ concurring) (citing T EX . A LCO . B EV . C ODE
§ 2.03(c)). The concurrence also noted that Graff clearly left open the question
of liability for social host providing alcohol to minors. Id.
Again, this is not a social host case. The Striflers were not entitled to no- evidence or traditional summary judgment on duty and the order granting
summary judgment cannot be affirmed on that ground.
B. T HE S TRIFLERS ’ D UTIES TO IF A ROSE U NDER C OMMON L AW . The facts and circumstances surrounding IF’s sexual assault gave rise to common law duties because: (1) the Striflers’ actions increased IF’s risk of
harm, (2) the Striflers engaged in negligent undertaking; or (3) both. IF’s
negligence claims should not have been dismissed based on a lack of duty.
To determine whether a duty exists, courts consider several interrelated factors: risk, foreseeability, and likelihood of injury weighed against the social
utility of the actor’s conduct, the magnitude of the burden of guardi ng against
the injury, and the consequences of placing the burden on the defendant.
Phillips , 801 S.W.2d at 525.
Generally, the law does not impose a duty on persons to control the conduct of others. Id. However, one of the core principles of common law
n egligence recognizes a people “have the duty to take affirmative action to
control or avoid increasing the danger from another’s conduct which the actor
has at least partially created.” El Chico Corp. v. Poole , 732 S.W.2d 306, 312 (Tex.
1987) (citing Williams v. Steves Indus., Inc ., 699 S.W.2d 570 (Tex. 1985), Golden
v. Tips , 651 S.W.2d 364 (Tex. App. — Tyler 1983, no writ), and R ESTATEMENT
(S ECOND ) T ORTS § 315 (1965)).
Likewise, an actor that voluntarily takes on a duty he or she would otherwise not have, must act reasonably in that undertaking. Newson v. B.B.,
306 S.W.3d 910, 914 (Tex. App. — Beaumont 2010, pet. denied). For instance, in
Carter v. Abbyad , victims stabbed by a drugged and threatening party goer
filed suit against the assailant’s main companions for bringing him to the
party. 299 S.W.3d at 894 95. The trial court dismissed the claims on the
pleadings after several rounds of special exceptions. Id. According to those
pleadings, the assailant’s companions observed him acting bizarr e and
threatening under the influence of drugs and decided to take him to a party
in that condition because it would be fun to watch the assailant be ridiculed.
The court examined whether the companions had a duty to the partygoers
that the assailant stabbed, and found the facts compelling enough to find the
companions owed a duty. Id. However, after balancing the risk, foreseeability,
and likelihood of injury based on the facts alleged in the petition, it could not
find any allegations to support that the companions had reason to believe that
the assailant would use a knife to attack someone at the party. Id. at 895 900.
The court ultimately held that it could not find a duty because there was no
evidence of the companions having a special relationship or voluntarily
taking control of the assailant with others’ reliance on that control.
Jointly and individually each of the Striflers had a legal duty to IF . Steven Strifler voluntarily took the affirmative course of action to allow his
teenagers to stay home without any adult supervision. C.R. at 220. He had an
obligation to engage in that course of action reasonably and a special
relationship with his children that gave him the right of control over them. Id.
His children, over whom he had a right of control and who he gave authority
to regulate his home, allowed: drugs, alcohol, and a person they had reason
to know glorified rape in that home. At the time they let those things happen,
they had reason to know that AV intended to take sexual advantage of at least
one girl who had already told him she did not consent to sexual contact with
him at that party.
SS and Sydney had individual duties that arose separate and apart from Strifler’s assumed course of conduct. SS and Sydney voluntarily allowed
multiple minors to enter their home with drugs and alcohol so that those
minors could take advantage of the fact that there were no adults around to
stop them. C.R. at 294 Sydney Strifler Dep. at 16:25-17:2. At the time SS invited
AV, he had reason to know and should have known that AV glorified rape
and intended to engage in sexual contact with females at the party regardless
of whether they consented to his advances. C.R. at 281 – SS Dep. at 84:9-85:21
[referencing DX 29]; C.R. at 351-353 AV Dep. at 46:8-49:6, 55:1-56:3; C.R. at
359 - Ex. 8, AV’s Public Claim “It’s Not Rape if I Have Swag” posted prior to
the rape [DX 37].
Moreover, even if SS’s pre -party knowledge of the danger AV posed to females at the party was not enough to create a duty, events that took place
before the sexual assault put them on notice of the risk they increased by
allowing AV in their home. Specifically, the evidence shows SS and Sydney
were aware of the danger they created by opening their home to AV because:
(1) both witnessed AV engaging in sexual contact with AH, a girl with whom
he had no prior romantic relationship; (2) they observed AV handling Xanax
drugs in their home; (3) they saw these things prior to AV’s attack on IF; (4)
they witnessed IF becoming suddenly incoherent and unaware of her
surroundings; and (5) they witnessed AV paying romantic attention to IF in
that state. C.R. at 295, 298-300, 318, 320-321 - Sydney Strifler Dep. at 19:21-
20:14, 33:8-34:23, 39:8-40:22, 111:4-113:7, 119:20-122:12; C.R. at 267, 278 - SS
Dep. at 26:18-34:1, 70:18-71:12; C.R. at 244-245 IF Dep. at 59:22-61:8.
SS and Sydney gave AV and the other teens at the party permission to remain in the home after witnessing these events. Id. They had the authority
to make AV leave after witnessing those things, but they chose to allow him
to remain in the environment. They chose to allow him to remain in the
environment despite witnessing him begin paying romantic attention to IF
after she became suddenly incoherent and unaware. SS and Sydney were not
under an obligation to continue the party as they witnessed these increasing
dangers. The party continued because they affirmatively decided to let it
continue.
The Strifler children’s voluntary choice and their control is evidenced by their conduct. They exhibited their control over the home by making
demands on the people there throughout the night, for instance: (1) requiring
new people to be allowed in by texting a guest and the guest having Sydney
open the door; (2) kicking DM out when he was too intoxicated; (3) refusing
to allow IF to leave with her preset ride; (4) moving all people out of the
backyard when DM’s mother approached the home; (5) demanding AV get
out of the bathroom when he was there with AH. C.R. at 295-296, 304, 318,
320-321 Sydney Strifler Dep. at 21:24-22:13, 54:24-57:17, 111:4-113:7, 119:20-
122:13. AV knew SS and Sydney controlled who could come and who could
stay at the party because he asked SS for permission to invite IF and AH in the
first place. C.R. at 281 - SS Dep. at 84:9-85:21. Moreover, they were ON
NOTICE that AV was dangerous in exactly this way.
Simply put, the Striflers owed IF a duty to act reasonably based on the courses of action they willfully chose to take. IF’s injuries were not
proximately caused by intoxication. They were caused by the environment
Appellees willfully created. This is not a social host matter. It is a matter of
common law negligence. Therefore, IF’s negligence claims are not precluded
by the Dram Shop Act, and evidence provided by IF raised a genuine fact issue
as to the existence of the common law . The trial court’s order should not be
affirmed as to the existence of a duty.
II. T HE T RIAL C OURT E RRED IF IT G RANTED S UMMARY J UDGMENT ON
P ROXIMATE C AUSE .
Appellees also moved for summary judgment under both traditional and no-evidence standards on the proximate cause on IF’ s negligence claims.
They argued that they should not be held liable for the harm that came to IF
while at their home because: (1) the conduct of the boys that sexually
assaulted IF constituted an intervening and superseding cause; and (2) IF’s
injuries were not foreseeable. The evidence IF submitted shows there are fact
issues as to both arguments that a jury should decide. Therefore, the trial
court erred if its order dismissing IF’s negligence claims was based on a lack
of proximate cause.
A. The Acts of Third Parties Did Not Destroy the Causal Links Between the Striflers’ Negligence and IF’s Injuries.
There can be more than one proximate cause of a person’s injury. A superseding cause is one that alters the natural sequence of events flowing
from the Defendants’ negligence, causing an injury different from that which
might have been expected at the time of the original negligent act. Dew v.
Crown Derrick Erectors, Inc., 208 S.W.3d 448, 451 52 (Tex. 2016). Not all new
and independent causes destroy the causal link necessary to hold a defendant
liable. Id. To destroy liability, the new and independent cause must be a
superseding cause — causing a wholly unexpected injury. Id.
Criminal conduct of a third party is not a superseding cause if that conduct is a foreseeable consequence of negligence. Nixon v. Mr. Prop. Mgmt.
Co ., 690 S.W. 2d 546, 549-50 (Tex. 1985). In Doe v. Messina , a case relied on by
Appellees, Doe brought suit against the owners of a property on Lake Travis
that included two large houses. 349 S.W.3d 797, 799 (Tex. App. — Houston
[14 th Dist.] 2011, pet. filed). Doe, her eventual assailant Kervin , Doe’s brother,
and the owners’ two twin sons used the guest house on the property to party
after going to a concert. Doe fell asleep on the couch and woke to Kervin
sexually assaulting her. She asserted a claim against the property owners,
alleging that they were negligent in supervising the teenagers and knowingly
allowed them to consume drugs and alcohol. Id . She did not assert the
property owners’ sons were liable for any negligence, and did not provide
any evidence that the property owner knew or should have known there was
alcohol and drug use in the house. Id. at 801 03. The appellate court affirmed
summary judgment, because the evidence showed there was no evidence
presented that the sexual assault was foreseeable as a consequence of
allowing those teenagers to consume alcohol without adult supervision. Id. at
803.
This case is different. Here, there is plenty of evidence for a jury to conclude that Mr. Strifler should have known his children would experiment
with alcohol, drugs, and invite friends over to his unsupervised home despite
his testimony to the contrary. He recognized that he had caught Sydney
drinking on a prior occasion, and Sydney herself testified that she was an
experienced drinker by the time Mr. Strifler left she and her brother alone in
her home. C.R. at 293 - Sydney Strifler Dep. at 11:12-13:14. Even if Mr. Strifler
did not keep alcohol in his home, he was on notice that his daughter knew
how to get alcohol from other sources.
More importantly, Mr. Strifler aside, this case involves direct claims of
negligence against SS and Sydney for their own acts on the night of September
28, 2012. And there is ample evidence, as described above, that SS and Sydney
were absolutely aware of the drugs, alcohol, sexual intentions of AV, and his
targets before he sexually assaulted IF in the front yard while she was
drugged. These claims and this type of evidence was not present in Messina ,
but it was properly before the trial court in this case.
The sexual assault of IF was part of the natural progression of events that SS and Sydney put into motion when they allowed their unsupervised house
to be a place where teens used alcohol, illegal drugs, and joked about putting
drugs in drinks. They were both aware that AV and AH engaged in oral sex
and that IF was absolutely unaware of the things around her. They also knew
AV glorified rape and did not have any regard for whether a girl told him to
stop.
They had multiple opportunities to ask any and all guests to leave as they witnessed the party becoming more and more dangerous. And they had
utilized their authority over the events taking place in their home in other
ways throughout the night. None of the evidence indicates the teenagers
there would not have left the home if Sydney or SS told them to do so. To the
contrary, the evidence shows the teenagers were following the directions
Sydney gave them while at the home. CR at 366 & 373.
The summary judgment evidence IF brought before the trial court contradicts the self-serving, conclusory testimony offered by the Striflers to
prove they could not have anticipated AV’s attac k that night. Therefore, the
evidence and facts provided by IF raised a genuine fact issue, as to whether
IF’s injuries were foreseeable to the Striflers and that should have precluded
summary judgment at the trial court.
PRAYER
WHEREFORE, PREMISED CONSIDERED, the Appellant respectfully
prays that the Honorable Court sustain their point of error and reverse the
judgement of the trial court and either render a judgment for Appellant or
remand the case for further proceedings in the case.
R ESPECTFULLY SUBMITTED , /s/ Christopher A. Payne Christopher A. Payne State Bar No. 15651500 chris@christopherapayne.com THE LAW OFFICE OF CHRISTOPHER A. PAYNE, PLLC 9101 LBJ Freeway, Suite 760 Dallas, Texas, 75243 Phone: 972-775-1954 Fax: 214 435-2435
CHARLA G. ALDOUS Texas Bar No. 20545235 caldous@aldouslaw.com BRENT R. WALKER Texas Bar No. 24047053 bwalker@aldouslaw.com HEATHER L. LONG Texas Bar No. 24055865 hlong@aldouslaw.com ALDOUS\WALKER, LLP 2311 Cedar Springs Rd., Suite 200 Dallas, TX 75201
Phone: (214) 526 — 5595 Fax: (214) 526-5525 ATTORNEYS FOR APPELLANTS CERTIFICATE OF SERVICE On October 27th, 2016, this Appellate Brief is being served upon all counsel of record through the Court’s e-filing system.
/s/ Christopher A. Payne Christopher A. Payne Gregory R. Ave
Greg.Ave@wbclawfirm.com
Carlos Balido
Carlos.balido@wbclawfirm.com
W ALTERS B ALIDO & C RAIN
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
Phone: (214) 347-8320
Fax: (214) 347-8321
Attorneys for Appellees
Steven Strifler, SS and
Sydney Strifler
CERTIFICATE OF COMPLIANCE As required by Texas Rule of Appellate Procedure 9.4(i)(3), I certify that there are 8191 words in the Appellant ’ s brief. I relied on the word counter in Microsoft
Word.
/s/ Christopher A. Payne Christopher A. Payne