Jason Woolard v. Life Time Fitness, Inc.

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JASON WOOLARD,

Plaintiff,

v. No. 4:23-cv-00844-P

LIFE TIME FITNESS, INC., ET AL.,

Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff’s Motion to Remand. Having reviewed

the Motion and applicable law, the Court concludes that the Motion

should be and is hereby GRANTED.

BACKGROUND

This negligence case arises from the drowning death of Billy Claude

Woolard in the pool at a Life Time Fitness health club (“Life Time”) in

Mansfield, Texas. Plaintiff sued Life Time along with the manager,

Tyler Yates (who has not been served) and the lifeguards on duty—

Julian Tijerina and Preston Riggs (“Individual Defendants”). Plaintiff

Jason Woolard is the representative of Billy Claude Woolard’s estate.

Jason Woolard is a resident of Tarrant County, Texas and Billy Claude

Woolard was a resident of Hood County, Texas. Defendant Life Time

Fitness, Inc. is a Minnesota corporation with its principal place of

business in Minnesota. Defendant Tyler Yates is a resident of Denton

County, Texas and Defendants Julian Tijerina and Preston Riggs are

residents of Tarrant County, Texas.

Plaintiff sued in state court and Life Time removed the case to this

Court based on diversity jurisdiction, arguing that Defendants Tyler

Yates, Julian Tijerina, and Preston Riggs were improperly joined and

their Texas citizenship should be disregarded. Plaintiff disagrees. Thus,

the issue before the Court is whether the Individual Defendants were

improperly joined.

LEGAL STANDARD

A defendant may remove to federal court any civil action brought in

state court over which the district court would have had original

jurisdiction. 28 U.S.C. § 1441(a); Mumfrey v. CVS Pharm., Inc., 719 F.3d

392, 397 (5th Cir. 2013). Original jurisdiction may be based on either

diversity of citizenship or the existence of a federal question.

Halmekangas v. State Farm Fire & Cas. Co., 603 F.3d 290, 295 (5th Cir.

2010). Ordinarily, diversity jurisdiction requires complete diversity—

that “all persons on one side of the controversy be citizens of different

states than all persons on the other side.” McLaughlin v. Miss. Power

Co., 376 F.3d 344, 353 (5th Cir. 2004).

But if the plaintiff improperly joins a non-diverse defendant, then

the court may disregard the citizenship of that defendant, dismiss the

non-diverse defendant from the case, and exercise subject matter

jurisdiction over the remaining diverse defendant. See Flagg v. Stryker

Corp., 819 F.3d 132, 136 (5th Cir. 2016). There are two ways to establish

improper joinder: “(1) actual fraud in the pleading of jurisdictional facts,

or (2) inability of the plaintiff to establish a cause of action against the

non-diverse party in state court.” Smallwood v. Illinois Cent. R. Co., 385

F.3d 568, 573 (5th Cir. 2004) (en banc). As to the second way of

establishing improper joinder, the Court applies the federal pleading

standard in making this determination, which requires that the

pleading contain “enough facts to state a claim to relief.” Int’l Energy

Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 208

(5th Cir. 2016); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

In reviewing a motion to remand based on a challenge to subject

matter jurisdiction, federal courts “must presume that a suit lies outside

[their] limited jurisdiction, and the burden of establishing federal

jurisdiction rests on the party seeking the federal forum.” Howrey v.

Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). “[A]ll contested

factual issues and ambiguities of state law [are resolved] in favor of the

plaintiff.” Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281 (5th

Cir. 2007); see also Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3d 535,

537 (5th Cir. 2014) (“Any doubts regarding whether removal jurisdiction

is proper should be resolved against federal jurisdiction.”). The

defendant bears a heavy burden in the removal context because “the

effect of removal is to deprive the state court of an action properly before

it,” thus raising “significant federalism concerns.” Gasch, 491 F.3d at

281.

ANALYSIS

At first glance, the Court appears to lack subject-matter jurisdiction

because Plaintiff and the Individual Defendants are Texas citizens. Life

Time, however, contends that the Court has jurisdiction and should

disregard the Individual Defendants’ Texas citizenship because Plaintiff

“has failed to state a claim upon which relief may be granted and thus

is guilty of improper joinder.” ECF No. 1 at 5. Specifically, Life Time

argues that the Individual Defendants—the lifeguards on duty at the

time of Woolard’s death—did not owe an independent duty of reasonable

care apart from the employer’s duty, and therefore were improperly

joined. See ECF No. 14 at 3.

The general rule in Texas “has always been that ‘a corporation's

employee is personally liable for tortious acts which he directs or

participates in during his employment.’” Alexander v. Lincare Inc., No.

3:07-cv-1137-D, 2007 WL 4178592, at *3 (Fitzwater, J.) (N.D. Tex. Nov.

27, 2007) (citing Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369,

375 (Tex. 1984)). However, an employee is liable for actions undertaken

during the scope of his employment only if he owes the plaintiff an

“independent duty of care apart from his employer's duty.” See Leitch v.

Hornsby, 935 S.W.2d 114, 117 (Tex. 1996) (holding a corporate officer is

not individually liable for the company’s failure to provide a safe

workplace). But “[n]othing in Leitch suggests that the court intended to

alter the general rule that a company employee is personally liable for

tortious conduct in which she participates during the course and scope

of her employment, provided she owes a legal duty to the person who

brings the claim against her.” Alexander, 2007 WL 4178592, at *3.

Because the Individual Defendants participated in the events at issue

during the course of their employment, the question is whether the

Individual Defendants owed a legal duty to Mr. Woolard.

With limited caselaw involving the legal duty owed by lifeguards to

swimmers under Texas law, Plaintiff cites analogous cases in which

employees owe an independent duty of care to third parties when they

participate in tortious conduct during the course of their employment.

In 1892, the Texas Supreme Court held that a railroad engineer owed

an independent duty to keep a lookout to avoid potential collisions, and

that his “negligent failure to keep a proper lookout” gave rise to

individual liability. See Werner v. Colwell, 909 S.W.2d 866, 868 (Tex.

1995) (citing Fort Worth & D.C. Ry. Co. v. Mackney, 83 Tex. 410 (1892)).

In modern cases, this independent duty is often observed in the motor-

vehicle context. “There is an independent duty—the breach of which is

personal negligence—if [an] employee fails to drive an automobile or

other vehicle in a reasonably safe and prudent manner, causing injury

to third parties or a fellow employee.” Werner, 909 S.W.2d at 868

(cleaned up) (citing LeSage v. Pryor, 137 Tex. 455 (1941)). Further, in

the context of employees charged with ensuring the health and well-

being of others, Texas courts have consistently held that nurses and

therapists may be personally liable for tortious conduct in which they

participate during the course of their employment, and thus are not

improperly joined when sued individually. See Alexander, 2007 WL

4178592, at *3 (collecting cases).

Notably, Life Time is unable to cite any case in which a Texas court

(or a court in any other state1) has considered and rejected the existence

of an independent duty owed by lifeguards to swimmers. The cases cited

by Life Time in which courts have found no independent duty involve

corporate officers, supervisors, or employees who were not personally

involved in the alleged tortious conduct and thus did not owe a duty of

1When courts of other states have considered this issue, they have found that such

a duty exists. See, e.g., S C Company v. Horne, 218 Va. 124, 128-29 (1977) (finding a

duty to observe swimmers for signs of distress and attempt rescue); Schalman v.

Aquatic Recreational Management, Inc., 2019 WL 1491674, at *1, affirmed, 137

N.Y.S.3d 701 (2021) (finding a duty to supervise swimmers and assist them in

distress); Williams v. City of Baton Rouge, 252 LA. 770 (La. 1968) (finding a duty to

rescue swimmers in danger of drowning); see also Sickel v. State, 363 P.3d 115, 117

(Alaska Ct. App. 2015) (“[A] person employed as a lifeguard at a beach or swimming

pool assumes a duty of care toward the swimmers.”); Avery v. Schneider as Next Friend

of Schneider, 356 Ga. App. 304, 310 (2020) (“[T]his Court has recognized that

lifeguards . . . may owe a duty to swimmers who suffer injuries at a pool.”).

care independent of the company’s duties. See ECF No. 14; Leitch, 935

S.W.2d 114 (holding a corporate officer is not individually liable for the

company’s failure to provide a safe workplace); Garcia v. Nordex USA,

Inc, 2019 WL 10093091, at *2 (Rodriguez, J.) (S.D. Tex. Dec. 10, 2019)

(holding a site supervisor was improperly joined when sued individually

for improperly training the plaintiff); Dargan v. Bridgestone Retail

Operations, LLC, 2018 WL 8546112 (W.D. Tex. Mar. 13, 2018) (holding

a store manager was improperly joined when sued individually for

negligent supervision); Palmer v. Wal-Mart Stores, Inc., 65 F. Supp. 2d

564, 567 (W.D. Tex. 1999) (holding a store manager who allowed a defect

to exist on store premises did not owe an independent duty of care to the

injured customer).

If nothing else, this shows that an ambiguity exists in Texas law as

to whether lifeguards owe an independent duty of care to swimmers.

Consequently, at the remand stage, the Court must construe this

ambiguity in favor of remand—leaving Texas courts to resolve

ambiguities in Texas law. See Smallwood, 385 F.3d at 573.

Life Time argues that even if the Individual Defendants owed a legal

duty to Mr. Woolard, an ordinary negligence claim against the

Individual Defendants is barred under the Texas Good Samaritan Law.2

ECF No. 14 at 9; Tex. Civ. Prac. & Rem. Code § 74.151 et seq. “The Good

Samaritan statute is comparable to other immunity statutes that have

been found to create affirmative defenses.” Campbell v. Pompa, 585

S.W.3d 561, 570 (Tex. App.—Fort Worth 2019, pet. denied). The statute

“creates an immunity, a set of facts which the defendant may prove to

show that it is not liable in civil damages.” Id. (citations omitted). In

unusual cases, a claim may be dismissed “if a successful affirmative

defense appears clearly on the face of the pleadings.” Clark v. Amoco

Prod. Co., 794 F.2d 967, 970 (5th Cir.1986).

2The Texas Good Samaritan Law does not shield defendants from liability in claims

involving gross negligence. Tex. Civ. Prac. & Rem. Code § 74.151. The Parties brief the

issue of whether Plaintiff has sufficiently pled the elements of gross negligence. See

ECF Nos. 14 at 11, 15 at 9. If so, the Good Samaritan Law’s affirmative defense would

be unavailable. The Court does not address this issue because it is not necessary to do

so at this time.

Assuming for a moment that the affirmative defense appears clearly

on the face of the pleadings, it is not clear that this defense applies to

lifeguards. Section 74.151 broadly limits liability for individuals “who in

good faith administer[] emergency care.” Tex. Civ. Prac. & Rem. Code §

74.151. But § 74.151 “does not apply to care administered . . . for or in

expectation of remuneration.” Id. Thus, “the purpose of [§ 74.151] is to

lower the standard of care in order to encourage certain medically

trained persons and laypersons to render aid in emergency situations.”

Moore v. Trevino, 94 S.W.3d 723, 728 (Tex. App.—San Antonio 2002,

pet. denied). However, this section does not apply to the Individual

Defendants because they had an expectation of remuneration for care

administered within the scope of their employment as lifeguards.

Section 74.152, on the other hand, limits liability for “persons not

licensed or certified in the healing arts who in good faith administer

emergency care as emergency medical service personnel.” Tex. Civ. Prac.

& Rem. Code § 74.152. This section applies “without regard to whether

the care is provided for or in expectation of remuneration.” Id. Section

74.152 arguably applies to the Individual Defendants if indeed the

Individual Defendants were not licensed or certified in the healing arts

and were acting in good faith as medical service personnel.

But as to § 74.152, there have been no published cases applying the

statute to lifeguards. See ECF No. 14 at 9. Life Time, however, points to

language in Moore v. Trevino, which states in relevant part:

In support of his argument that section [74.152] applies only to

volunteers who provide unpaid emergency care, Moore relies on

the interplay between sections [74.151] and [74.152]. Moore

argues that section [74.152] is intended to protect police officers,

firemen, security guards, lifeguards, and other persons who are

not emergency medical personnel but who are trained to provide

emergency care. Moore's basis for this conclusion is that the

purpose of the Good Samaritan Statute is to protect from

liability those people who volunteer their services. We agree that

the Good Samaritan Statute offers protection to individuals who

voluntarily administer emergency care. We disagree that it

protects only those individuals.

94 S.W.3d at 727–28 (citations omitted) (emphasis added). Although the

court rejected Moore’s argument, it did so because Moore’s reading of

the statute was too narrow. A Texas court may find that lifeguards fall

within the protection of § 74.152, but the Moore court did not settle this

issue. See Moore, 94 S.W.3d at 729 (“With this opinion we hold

emergency medical technicians and paramedics are included within the

scope of section 74.002.”). This is an ambiguity in the law that must be

resolved in favor of remand. See Smallwood, 385 F.3d at 573.

In light of these ambiguities, Life Time cannot meet its heavy burden

of establishing that there is “no reasonable basis for the court to predict”

that Plaintiff might be able to recover under Texas law against the

Individual Defendants for negligent acts committed within the scope of

their employment. See Smallwood, 385 F.3d at 573.

CONCLUSION

Since the Court must resolve all contested factual issues and

ambiguities of state law in favor of the plaintiff, the Court finds that Life

Time has not met its burden of establishing the Individual Defendants

were improperly joined. Accordingly, the Court concludes that the

Individual Defendants were not improperly joined, that the case should

be remanded. Plaintiffs Motion to Remand (ECF No. 12) is hereby

GRANTED.

SO ORDERED on this 28th day of September 2023.

Mark T. Pittman

UNITED STATED DISTRICT JUDGE