United States District Court, N.D. Texas, Amarillo Division
KIMBERLY D. POLLARD and J.S. A Minor Child, PLAINTIFFS,
CHURCH OF GOD IN CHRIST, INC., an Active Domestic Tennessee Nonprofit Corporation, and CHURCH OF GOD IN CHRIST, BOARD OF BISHOPS, and BISHOP JAMES L'KEITH JONES, DEFENDANTS.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
LOU ROBINSON, SENIOR UNITED STATES DISTRICT JUDGE.
the Court is Defendant Church of God in Christ, Inc.' s
motion, filed August 18, 2017, for summary judgment on the
claims asserted in this suit on behalf of J.S.,
Plaintiffs' response thereto, and the Defendant's
reply. For the following reasons, summary judgment for
Defendant Church of God in Christ, Inc. is granted.
an action brought on behalf of the alleged victim of a
potential sexual assault against the national church by which
the future suspected assailant, Bishop James L'Keith
Jones, was ordained. A final default judgment against
Defendant Jones was entered in the amount of $750, 000.00 in
damages, plus reasonable and necessary costs in this action.
That judgment is now final.
allege direct liability against the national church - based
upon its alleged negligent supervision of Bishop Jones - as
well as vicarious liability for Jones' acts of grooming
J.S. for some future sexual assault. Specifically, Plaintiffs
assert that the national church knew or should have known of
the illicit conduct that Jones had engaged in with Plaintiff
Kimberly Pollard because a basic investigation would have
revealed those facts and, because Jones allegedly worked for
and was ordained by the national church, it is liable for his
alleged in Plaintiff Kimberly Pollard's complaint and
explained in her summary judgment affidavit, Plaintiff states
that she had her first sexual encounter with then-pastor
Jones in 1995 in New Mexico, when she was 16 years of age.
The age of consent is 16 in New Mexico. At some point in time
Plaintiff and her daughter moved to Texas. In about 2002,
when Plaintiff was 23 years old, she states that she stopped
seeing Jones. In November of 2014 - twelve years later -
Jones and Plaintiff Pollard, then age 35, began a second,
consensual, sexual affair in Texas. Plaintiff ended that
affair in or around February of 2016 when she states she
realized that Jones was allegedly "grooming" her
daughter for a future sexual affair - as she then realized he
had groomed her when she was age 15. Specifically, Jones told
Pollard that J.S. - then age 6 - was "sexy" in her
nightgown and that he would "date" J.S. in the
future when she was older.
first reported the sexual misconduct by Jones to the national
office of the church during the summer of 2016. Pollard
characterizes Jones's underlying conduct as grooming her
daughter for a potential future sexual assault, sexual abuse,
and/or sexual molestation of a minor, her daughter, similar
to the multiple assaults against her that continued well into
Plaintiff Kimberly Pollard's adulthood.
Court may terminate litigation by rendering a summary
judgement where no genuine issue of material fact exists and
the moving party is entitled to judgement as a matter of
law." Honore v. Douglas, 833 F.2d 565, 567 (5th
Cir. 1987)(citations omitted). See also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91
L.Ed.2d265 (1986)(initial burden is on movant to show
entitlement to summary judgment with competent evidence);
Fed. R. Civ. Pro. 56©. "Summary judgement
disposition is inappropriate if the evidence before the
court, viewed as a whole, could lead to different factual
findings and conclusions." Honore v. Douglas,
833 F.2d at 567. This Court must resolve "all factual
uncertainties and mak[e] all reasonable inferences in favor
of the nonmoving party." See Id. Accord Bienkowski
v. American Airlines, 851 F.2d 1503, 1504 (5th Cir.
1988). Such a finding may be supported by the
absence of evidence necessary to establish an essential
element of the non-moving party's case. See Celotex
Corp. 477 U.S. at 322; Topalian v. Ehrman, 954
F.2d 1125, 1131 (5th Cir.), cert, denied, 954 U.S.
1125, 113 S.Ct. 82, 121 L.Ed.2d 46(1992).
Pollard pleads that Jones made one inappropriate comment to
J.S. about how sexy she looked in her nightgown.
Plaintiffs' complaint states that Jones made a comment to
Kimberly Pollard - not directly to J.S. - about Jones dating
J.S. when she turned 18. There is no allegation in the
complaint, no evidence in the record before the Court, and no
testimony in Kimberly Pollard's affidavit stating that
Jones made any other inappropriate comment to J.S. or that he
touched her inappropriately. A single inappropriate comment -
even with Pollard's real and valid belief that Jones was
grooming her daughter for a future sexual relationship - do
not constitute an overt act of now-actionable sexual assault
as that conduct is defined by Texas law. Plaintiffs, both
citizens of Texas, do not plead or argue that any other
state's law applies under the facts of this case.
the church's vicarious liability, that theory of
liability centers around the relationship between a
tortfeasor's alleged misbehavior and the work he was
hired to do. Under the doctrine of respondeat
superior, an employer is liable for an employee's
torts if: (1) his acts were within the employee's general
authority; (2) the acts were in furtherance of the
employer's business; and (3) the acts were aimed to
accomplish the employment objectives for which the employee
was hired. See Minyard Food Stores v. Goodman, 80
S.W.3d 573, 577 (Tex. 2002). If the employee was acting
within the course and scope of his employment at the time he
committed the wrongful acts, liability for the act is imputed
to the employer. See Baptist Mem'l Hospital v.
Sampson, 969 S.W.2d 945, 947 (Tex. 1998). However,
employers generally are not liable for an employee's
"purely personal" pursuits or "errands of his
own, " "doing nothing to further the master's
business or to accomplish the object for which he was
employed." See Mitchell v. Ellis, 374 S.W.2d
333, 336 (Tex. Civ. App. - Fort Worth 1963, writ
ref'd). Cf. Hein v. Harris Co., 557 S.W.2d 366, 368
(Tex. Civ. App. -Houston [1st Dist] 1977, writ ref'd
n.r.e.)(("The rule is that when a servant turns
aside, no matter how short the time, from the prosecution of
the master's work to engage in an affair wholly his own,
he ceases to act for the master, and the responsibility for
his actions in pursuing his own business or pleasure is upon
him alone.")(c//mg Texas & P. Ry. Co. v.
Hagenloh, 151 Tex. 191, 247 S.W.2d 236 (1952)).
assuming Jones was a national church employee, and without
needing to consider Defendant' legal contentions that
Jones actually was not its employee, the clear Texas rule is
that even if Jones was a national church employee, the church
as his employer is not liable for employee Jones'
wrongful acts if and when he as an employee strayed from his
employer's work for a purely personal pleasure or
pursuit. See Southwest Dairy Products Co. v. De
Frates, 132 Tex. 556, 559, 125 S.W.2d 282, 283(1939).
assault claims on behalf of J.S. therefore can not trigger
vicarious liability upon the church unless the church somehow
ratified his wrongful actions. "In Texas it is not
within the scope of a servant's authority to commit an
assault on a third person." Geiger v. Varo,
Inc., 1994 WL 246159, *5 (Tex. App. - Dallas, June 6,
1994, writ denied)(citing Green v. Jackson, 674
S.W.2d 395, 398 (Tex. App. - Amarillo 1984, writ
ref'd n.r.e.)). Here, Pollard complains of
"sexual abuse, " "sexual molestation" and
other intentional misbehavior by Jones. The national church
is not vicariously liable for these intentional torts which,
on the basis of the facts pled, were personal pursuits of
J.S. by Jones and no contention is pled, argued or briefed
that the national church somehow ratified his actions.
Plaintiff cites to no evidence showing Jones' wrongful
acts were done for other than his own personal pursuits, or
were done on ...