# Jason Woolard v. Life Time Fitness, Inc.

> District Court, N.D. Texas · September 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10671195

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** September 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10671195

## How later opinions describe it (automated extraction)

- holding a corporate officer is not individually liable for the company’s failure to provide a safe workplace
- finding a duty to observe swimmers for signs of distress and attempt rescue

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10671195. Public record. Not legal advice.