Golden Spread Council, Inc. 562 of the Boy Scouts of America v. Akins

Justice ENOCH,

concurring in part and dissenting in part.

The Court correctly concludes that the Boy Scouts of America cannot be liable to C.C. because it owed no duty to C.C. and it was not otherwise vicariously liable to C.C. for Estes’s actions. 926 S.W.2d at 292. Thus, I concur in the Court’s judgment in part. The Court today, though, adopts a new common law cause of action for Texas — the duty to not negligently refer one individual to another. And this duty not only runs to the one to whom the referral is made, but also to whomever is injured by the individual referred. I would not adopt such a duty. Therefore, I must dissent in part.

The record in this case is virtually undisputed. I simply emphasize that C.C. was abused by Estes on a number of occasions, all before C.C. had any connection with the scouting program. And C.C. rejected the two sexual advances that form the basis of this suit and that were made by Estes while C.C. was a scout in Troop 223.

*294 I begin by noting that C.C.’s mother has sued the Council under two major theories. The first is that the Council failed to properly train, supervise, investigate, and ultimately remove Estes as the scoutmaster. The second is that the Council failed to warn the sponsoring organization of Estes’s dangerous propensities. To recover under the first theory, C.C.’s mother must succeed in proving that the Council was negligent in hiring Estes. In Texas, an employer who negligently hires an incompetent or unfit individual may be liable to a third party whose injury was proximately caused by the employee’s negligent or intentional act. Salinas v. Fort Worth Cab & Baggage Co., 725 S.W.2d 701, 703-04 (Tex.1987); King v. McGuff, 149 Tex. 432 , 234 S.W.2d 403, 405 (1950); see Dieter v. Baker Serv. Tools, 739 S.W.2d 405, 408 (Tex.App.—Corpus Christi 1987, writ denied); Estate of Arrington v. Fields, 578 S.W.2d 173, 178 (Tex.Civ.App.—Tyler 1979, writ ref'd n.r.e.). But the Council did not hire Estes. The Council, therefore, is not liable under a negligent hiring theory, a point the Court concedes. 926 S.W.2d at 290.

Under the second theory — that of failing to warn — C.C.’s mother must prove that the Council is in a special relationship with Estes, the individual causing the personal injuries. There is no duty to warn of another’s dangerous propensities unless there is a special relationship between the alleged tort-feasor and the dangerous person. In Greater Houston Transp. Co. v. Phillips, we said:

Generally, there is no duty to control the conduct of third persons.... This general rule does not apply when a special relationship exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct.... These include the relationship between employer and employee, parent and child, and independent contractor and contractee under special circumstances.

801 S.W.2d 523, 525 (Tex.1990)(emphasis added). Likewise, without a special relationship, a party does not have a duty to warn of another’s dangerous propensities. See J.A.W. v. Roberts, 627 N.E.2d 802 , 809 & 813 (Ind.Ct.App.1994); Moore v. St. Joseph Nursing Home, Inc., 184 Mich.App. 766 , 459 N.W.2d 100, 102-03 (1990); Cohen v. Wales, 133 A.D.2d 94 , 518 N.Y.S.2d 633, 634 (N.Y.App.Div.1987). The Court tacitly agrees that “control” is an element necessary to justifiably impose a duty upon the Council. 926 S.W.2d at 289. I agree with this assessment. See, e.g., Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 198-99 (Tex.1995)(control over security must be present before liability for failing to provide security at parking garage can be assessed); Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex.1993)(eentral focus in premises liability action is control over the instrumentality causing the plaintiffs injury); Exxon Corp. v. Quinn, 726 S.W.2d 17, 20 (Tex.1987)(employer not liable for conduct of independent contractor if no control); see also Kahn, Organizations’ Liability for Torts of Volunteers, 133 U. Pa L. Rev. 1433, 1441-42 (1985)(examining the degree and character of charitable organizations’ control over their volunteers that could impose liability). Conspicuously absent in this case is the Council’s control over Estes. I note only that the Court skirts this missing element by weakly concluding that had the Council not given Estes’s name to the new troop sponsor, it “might well have prevented Estes from being scoutmaster_” 926 S.W.2d at 291.

Instead of reversing the judgment of the court of appeals, which held to the contrary on the first theory and did not address the second, the Court searches for and finds a new theory of recovery — one that was neither alleged, nor briefed, nor argued, and one this Court has rejected in past years. The Court holds that the Council had a “duty not to recommend [Estes] as a scoutmaster ... if [it] knew or should have known that Estes was peculiarly likely to molest boys.” 926 S.W.2d at 292. Despite the obvious implications of its holding, the Court explains that its “limited” duty to not recommend Estes as a potential scoutmaster does not encompass the duty to investigate or warn others of Estes’s dangerous propensities. This notion, however, is fundamentally inconsistent; according to the Court, the Council’s duty to avoid recommending Estes arises only after it has undertaken to recommend Estes. Reducing this duty to its effect, the Council breaches its duty only if it recommends *295 Estes without also disclosing the allegations made against him. The Court is simply describing a negligent misrepresentation cause of action for a non-peeuniary injury. See Randi W. v. Livingston Union Sch. Dist., 41 Cal.App.4th 400 , 49 Cal.Rptr.2d 471 , 483 (1995); Restatement (Second) of Torts § 311 (1965).

A quick look at Restatement (Second) section 311 demonstrates my point. Section 311 provides:

(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results

(a) to the other, or

(b) to such third persons as the actor should expect to be put in peril by the action taken.

(2) Such negligence may consist of failure to exercise reasonable care

(a) in ascertaining the accuracy of the information, or

(b) in the manner in which it is communicated.

Restatement (Second) of Torts § 311 (1965). The similarities between the duty adopted by the Court today and section 311’s duty are striking. Even more striking is that this Court has refused to recognize the tort of negligent misrepresentation for a non-peeuniary injury. See Federal Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex.1991). And as recently as last year, when called to do so, we did not. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 482-83 (Tex.1995)(Gammage, J., joined by Hightower, Cornyn & Spector, JJ., dissenting).

In Texas, the only cause of action for negligent misrepresentation that exists is if (1) the representation is made by a defendant in the course of his or her business, or in a transaction in which he or she has a pecuniary interest, (2) the defendant supplies false information for the guidance of others in their business, (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information, and (4) the plaintiff suffers pecuniary loss by justifiably relying on the representation. Federal Land Bank Ass’n of Tyler, 825 S.W.2d at 442 . That claim is not present in this case.

Not acknowledging the true duty it imposes, the Court asserts that it is following paragraph D of comment e to section 302B of the Restatement (Second) of Torts. But section 302B states:

An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.

And comment e and paragraph D to this section provide:

There are ... situations in which the actor, as a reasonable man, is required to anticipate and guard against the intentional, or even criminal misconduct of others. In general, these situations arise when the actor is under a special responsibility toward the one who suffers the harm, which includes the duty to protect him against such intentional misconduct; or where the actor’s own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account.

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[This duty is breached wjhere the actor has brought into contact or association with the other a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct.

Restatement (Second) of ToRts § 302B, cmt. e, ¶ D (1965). These provisions do not address the issues in the present ease. And as I have mentioned, the parties neither pleaded, nor briefed, nor argued that these provisions applied.

Furthermore, neither of the illustrations accompanying paragraph D is remotely related to the factual pattern of this case. In the *296 first illustration, an employer hires a violent employee, knowing the violent tendencies of the employee, and that employee injures another. Id. § 302B, cmt. e, ¶ D, ill. 9. This does not illustrate a duty to avoid a negligent recommendation — it illustrates the negligent hiring doctrine, which the Court concedes is not applicable to this case. 926 S.W.2d at 290. In the next illustration, a common carrier places its passenger in harm’s way by depositing the sleeping passenger near woods in which violent hobos are known to reside. Id. § 302B, cmt. e, ¶ D, ill. 10. But common carriers already have a well-defined duty to their passengers irrespective of section 302B. See Houston Transit Co. v. McQuade, 223 S.W.2d 64, 65 (Tex.Civ.App.—Galveston 1949, writ ref' d)(duty to discharge passengers in a reasonably safe place). These illustrations are illuminating, but do not support the Court’s holding. To the contrary, considering the facts of the present case, these illustrations confirm that the Court errs in basing its holding on section 302B of the Restatement (Second).

The Court’s misdirection in this case is troubling in two respects. First, it fails to limit the Council’s duty to only those harmed by reasonably relying on the referral. At least if it explicitly adopted section 311, the Council's duty would be so limited. Restatement (Second) of ToRts § 311(1) (1965). Even under the cause of action for negligent misrepresentation in the commercial context, which we have previously recognized, the duty has been limited to those who suffer loss while justifiably relying on the representation. Federal Land Bank Ass’n of Tyler, 825 S.W.2d at 442 . The Court establishes no such limit to its newly found duty in this case. To the contrary, it appears that once an organization negligently refers another, it will be liable for any resulting personal injuries irrespective of any party’s reliance. Second, the duty established by the Court, despite its protestations to the contrary, entails an obligation to warn of another’s potentially dangerous propensities. The Court acknowledges that spreading rumors about child molestation can result in the undeserved destruction of an individual’s reputation, 926 S.W.2d at 291-292, but its decision virtually mandates the dissemination of unconfirmed reports of child molestation.

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In my view, the Court errs in creating a common law cause of action for negligent misrepresentation in non-pecuniary loss cases. Because no such duty has existed before today and should not exist tomorrow, I would reverse the court of appeals’ judgment in its entirety. I respectfully dissent.