Leticia Ovalle v. Felicia Mares--Appeal from 288th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00806-CV

Leticia OVALLE,

Appellant

v.

Felicia MARES,

Appellee

From the 288th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CI-17255

Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 28, 2005

AFFIRMED

Leticia Ovalle appeals the trial court s summary judgment against her in her negligence suit against Felicia Mares. We affirm the trial court s judgment.

The night before the accident, sixteen-year-old Ovalle was spending the night with her friend, Janelle Mares. At approximately 3:30 a.m, Janelle s mother, Felicia Mares, was awakened by the closing of the front door. When Mares entered the living room, she saw that Ovalle had come in from outside. When Mares asked Ovalle what she was doing and who was outside, Ovalle answered that her boyfriend, Roland Hernandez, had come at her mother s request to pick her up and take her home. Mares told Ovalle to stay and that she would talk to her mother. Disregarding Mares, Ovalle headed into Janelle s bedroom to gather her belongings. When Mares opened the front door, she saw Hernandez, told him to leave, and closed the door. When she turned around, she saw Ovalle behind her with her belongings. Mares again told Ovalle not to leave and this time asked Ovalle for her cell phone so she could call Ovalle s mother. When Ovalle would not give her the cell phone, Mares went into the kitchen to use her cordless phone. Ovalle remained near the door, which Mares could not see from the kitchen. After three or four unsuccessful attempts to reach Ovalle s mother, Mares returned to the living room and discovered that Ovalle had left. Mares learned the next morning that Ovalle had sustained serious personal injuries when Hernandez ran into a parked car.

Ovalle sued both Hernandez and Mares. Ovalle settled with Hernandez for the limits on his insurance policy. With respect to Mares, Ovalle alleged she was acting in loco parentis and negligently failed to supervise her. Mares filed both a traditional and no-evidence motion for summary judgment, arguing that Ovalle s suit was barred by the doctrine of parental immunity; there was no evidence of duty, breach, or proximate cause; and the evidence conclusively disproved each of the alleged acts of negligence. The trial court granted Mares s motion without specifying the basis for its judgment. Ovalle appealed.

1. Ovalle first argues the trial court erred in granting Mares s motion for summary judgment because Mares owed Ovalle a duty to force Hernandez to leave and to prevent Ovalle from leaving.

The existence of such a duty is a question of law for the court to decide from the surrounding facts. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). In doing so, we must be mindful of social, economic, and political questions, and their application to the particular facts at hand. Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993) (quoting Mitchell v. Missouri-Kansas-Texas R.R. Co., 786 S.W.2d 659, 662 (Tex. 1990)). Consequently, we must consider the extent of the risk involved, the foreseeability and likelihood of injury weighed against the social utility of the actor s conduct, the magnitude of the burden of guarding against the injury, ... the consequences of placing the burden on the defendant[,] whether one party has superior knowledge of the risk, and whether a right to control the actor whose conduct precipitated the harm exists. Id. (quoting Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1991)). Applying these factors, we conclude Mares did not owe Ovalle a duty to force Hernandez to leave and to prevent Ovalle from leaving.

We first look at the extent of the risk involved and the foreseeability and likelihood of injury weighed against the social utility of the actor s conduct. There is no evidence Mares knew or suspected that Hernandez had been drinking. Accordingly, the extent of the risk involved from her perspective was that Ovalle s mother had not in fact authorized Hernandez to pick up Ovalle and drive her home. Therefore, the consequent foreseeability and likelihood of injury was thus relatively slight. On the other hand, the magnitude and consequences of placing the burden of guarding against the injury on Mares are significant. If we were to impose such a duty on Mares, it would require a social host who is unable to verify the assertion of a minor overnight guest that he or she must return home to take whatever action is necessary, including physical restraint, to ensure that the minor does not leave. Imposing this duty leaves too many unanswered questions in its wake. What are the appropriate and inappropriate methods and manners of restraint? How long must the minor be restrained? What if the minor resists or flees? Additionally, we must consider that it was Ovalle, not Mares, who had superior knowledge of the risk. Even if Ovalle was not aware Hernandez had been drinking the night of the accident, she had been his girlfriend for three years, ridden with him before, and drunk alcohol with him before; and it was Ovalle, not Mares, who spoke with Hernandez outside Mares s home on the night in question.

Finally, we must consider whether Mares had a right to control Hernandez s conduct. The only authority Ovalle cites in support of her argument that Mares owed her a duty to control Hernandez s conduct is section 320 of the Restatement (Second) of Torts, which provides as follows:

One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor

(a)knows or has reason to know that he has the ability to control the conduct of the third persons, and

(b)knows or should know the necessity and opportunity for exercising such control.

Restatement (Second) of Torts 320 (1965). Ovalle particularly points to comment b, which states that the actor who takes custody ... of a child is properly required to give him the protection which the custody ... has deprived him. Id. cmt. b. However, comment a make clear that section 320 applies only to certain authority figures: a sheriff or peace officer, a jailer or warden of a penal institution, officials in charge of a state asylum or hospital for the criminally insane, ... to teachers or other persons in charge of a public school[,] ... persons conducting a private hospital or asylum, a private school, and to lessees of convict labor. Id. cmt. a; see Tex. Dep t of Mental Health & Mental Retardation v. McClain, 947 S.W.2d 694 (Tex. App. Austin 1997, pet. denied) (applying section 320 to impose a duty on officials in charge of a state-run mental hospital that had assumed custody of two involuntarily committed patients).

In light of the relevant factors, we hold that Mares did not have a duty to take any further action to prevent Ovalle from leaving and had no duty to force Hernandez to leave. The trial court therefore correctly granted Mares s motion for summary judgment.

2. Ovalle next argues the trial court erred in granting Mares s motion for summary judgment because the summary judgment record raises genuine issues of material fact regarding whether Mares was negligent. However, this argument is premised on the existence of a duty. Since we have held that Mares did not owe Ovalle a duty to prevent her from leaving or to force Hernandez to leave, we need not address this issue.

The trial court s judgment is affirmed.

Sarah B. Duncan, Justice