holding that the BSA had no vicarious liability under a theory of respondeat superior to a scout molested by a scout leader where the BSA and the local council, Golden, were separate corporations, the BSA had no right to control Golden’s activities, and Golden had its own board of directors
How later courts described this case
- holding that the BSA had no vicarious liability under a theory of respondeat superior to a scout molested by a scout leader where the BSA and the local council, Golden, were separate corporations, the BSA had no right to control Golden’s activities, and Golden had its own board of directors
- holding that scouting organization owed duty to minor and his parents because organization knew or should have known that circumstances of working with children as their mentor would provide peculiar opportunity for employee to engage in intentional misconduct
- recognizing that "the right to control remains the 'supreme test' for whether the master-servant relationship exists"
- holding that sexual abuse of boy scout by scoutmaster was foreseeable because regional council had recommended scoutmaster despite complaints that scoutmaster was “messing with” some boy scouts and concerns that the complaints might be serious
Written by the judges who cited it.
Distinguished
Distinguished by the Scott Fetzer Company D/B/A the Kirby Company v. Dena Kristi Read (1997)
We believe Akins is distinguishable from the present case.
The opinion
Justice CORNYN,
concurring.
I agree with the Court’s judgment, which remands this case for a trial. I write separately, however, because section 261.101(a) of the Family Code imposes an independent duty to report abuse or neglect of a child, and that duty should be acknowledged by the Court as an additional basis of civil liability. Instead, under the narrow duty imposed by the Court, a person who knows that a child has been abused, but who does nothing, is absolved from civil liability for whatever preventable harm is subsequently done to the child — harm that might have been prevented had that person merely dialed the telephone and reported it to authorities.
Section 261.101(a) provides that “a person having cause to believe that a child’s physical or mental health or welfare has been or may be adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.” The report must be made to a local or state law enforcement agency, or under certain circumstances, to other government agencies. Tex. Fam. Code § 261.103. A person who has cause to believe that a child may be subject to abuse or neglect and knowingly fails to report the situation to an appropriate authority commits a criminal offense, a class B misdemeanor. Tex. Fam.Code § 261.109.
Tort law, like the criminal law, is concerned with the prevention of future harm. See Keeton et al., PROSSER and Keeton on the Law of ToRTS, § 4, at 25 (5th ed. 1984) (referring to the “prophylactic” purpose of tort law). Thus, it should not be surprising that a penal statute may in itself create a legal duty in a civil case, separate and apart from any duty imposed by common law. El Chico Corp. v. Poole, 732 S.W.2d 306, 312 (Tex.1987); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985). The unexcused violation of a statute may be negligence per se if the statute is designed to prevent an injury to the class of people to which the injured party belongs. El Chico Corp., 732 S.W.2d at 312 ; Nixon, 690 S.W.2d at 549 . A violation of section 261.101(a) of the Family Code, in my opinion, fits this well-established paradigm for civil liability and should be adopted by the Court.
The Court implicitly recognizes the force of this argument by citing section 261.101(a) and the strong public policy underlying the Legislature’s adoption of this statute as support for its adoption of a narrow legal duty in this case. 926 S.W.2d at 291. Yet, for reasons its opinion does not explain, the Court stops short of holding that section 261.101(a) imposes a legal duty. I do not agree with this arbitrary limitation, and therefore I concur in the Court’s judgment.