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Doe v. Ripley Entertainment, Inc.

Court of Appeals of Texas, Fifth District, Dallas

January 6, 2020

JOHN DOE I, INDIVIDUALLY AND AS NEXT FRIEND OF JOHN DOE II, A MINOR, Appellants
v.
RIPLEY ENTERTAINMENT, INC., AND JIM PATTISON U.S.A., INC., Appellees

          On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-07174

          Before Justices Bridges, Molberg, and Partida-Kipness

          MEMORANDUM OPINION

          DAVID L. BRIDGES, JUSTICE.

         Appellants John Doe I, individually and as next friend of John Doe II, a minor, filed suit against appellees William C. Anderson, LeVonna C. Anderson, Alexander A. Anderson (the Anderson defendants), Ripley Entertainment, Inc. (Ripley), and Jim Pattison U.S.A., Inc. (Pattison) for various causes of action arising out of a sexual assault perpetrated by a school employee against John Doe II while on a school-sponsored field trip to Ripley's Believe it or Not!® (RBION).

         Appellants asserted seven causes of action against Ripley and Pattison. Ripley and Pattison filed seven no-evidence motions for summary judgment, which the trial court granted. Appellants proceeded to trial against the Anderson defendants, and a jury awarded a multi-million dollar verdict in their favor. The parties eventually settled for an undisclosed amount, and appellants now appeal five of the seven no-evidence summary judgments.[1] We affirm.

         Background

         Doe II was an eleven-year-old boy with autism, who attended a private school owned by William and LeVonna Anderson. The Anderson's son, Alex, served as teacher and director of technology.

         In October 2014, the school planned a field trip to RBION. Doe I volunteered to drive and chaperone students on the field trip. Several other parents and school faculty, including Alex, also volunteered to chaperone.

         On October 31, 2014, Doe I drove a van of students, including Doe II, to RBION. Upon pulling into the parking lot entrance, he noticed a sign posted that stated, "For the security of our guests, these premises are being electronically monitored 24 hours a day." Based on the sign, Doe I believed RBION had monitored surveillance cameras throughout the premises to protect visitors. Instead, he later learned video cameras were placed in revenue areas to prevent employee theft and to monitor employee performance. Cameras were not everywhere throughout the exhibit halls.

         Despite the number of chaperones in attendance, Doe I and Doe II got separated for a period of less than seven minutes.[2] During this short time, Alex "lured" Doe II into the "House of Wax" exhibit. According to Doe I, surveillance cameras captured Alex "walk up, peek around the corner, peek around this way to see what was going on, where I was, and then he let [Doe II] go through and follows him in." In that short time, Alex sexually assaulted Doe II.

         Appellants filed suit against the Anderson defendants, Ripley, and Pattison for numerous causes of action. The trial court granted summary judgment in favor of Ripley and Pattison on appellants' premises liability, negligent misrepresentation/Restatement (Second) of Torts § 311, negligent undertaking/Restatement (Second) § 323, Restatement (Second) of Torts § 344, DTPA, breach of warranty, and gross negligence claims. The case proceeded to trial against the Anderson defendants, and a jury awarded appellants a multi-million dollar verdict. Appellants now appeal five of the seven summary judgments.

         Discussion

         In a single issue, appellants argue the trial court erred by granting no-evidence summary judgments on their causes of action against Ripley and Pattison for (1) DTPA violations, (2) breach of warranty, (3) negligent misrepresentation/Restatement (Second) of Torts § 311, (4) negligent undertaking/Restatement (Second) of Torts § 323, and (5) gross negligence. Appellees contend, in part, that appellants failed to provide evidence of causation on any of their claims; therefore, summary judgment was appropriate.

         We review the trial court's grant of a no-evidence summary judgment de novo. Cmty. Health Sys. Prof'l Servs. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017). We review a no-evidence summary judgment using the well-established legal sufficiency standard. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). To defeat a no-evidence summary judgment, the nonmovant is required to produce evidence that raises a genuine issue of material fact on each challenged element of its claim. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); see Tex. R. Civ. P. 166a(i). A no-evidence challenge will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence ...


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