Opinion
CIVIL ACTION NO. 03-173
November 3, 2003
ORDER AND REASONS
Before the Court is a Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, filed by defendant Frank Glenn. For the reasons that follow, the motion is DENIED.
I. BACKGROUND
Plaintiff, Bill Brantley, brings this action seeking damages for injuries he sustained while working as a referee at a high school boys basketball game at Bowling Green School. According to the complaint, defendant Frank Glenn came onto the court and began assaulting plaintiff's referee partner, Charlie Ackerman. See Compl. ¶ 13. Apparently, this occurred when Glenn's minor son was ejected from the game because of a technical foul. Glenn allegedly was joined in his assault of Ackerman by defendant, Donald McGehee. Id. at ¶ 14. When plaintiff tried to stop the assault, McGehee allegedly punched, clawed, and battered plaintiff. Id. In the melee that ensued, McGehee was soon joined by two other McGehees, who allegedly punched, kicked, and beat plaintiff until he was unconscious. Id. Plaintiff alleges that his injuries were caused by the negligent and/or intentional acts of all the defendants: Glenn, Bowling Green School, and the three McGehees. Defendant Glenn argues that plaintiff has stated no claim for relief against him because plaintiff docs not allege that Glenn personally punched, kicked, or clawed plaintiff.
II. LAW AND ANALYSIS
"A 12(b)(6) motion to dismiss should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir.), cert. denied, 476 U.S. 1159 (1986); Indest v. Freeman Decorating, Inc., 164 F.3d 258, 261 (5th Cir. 1999) ("A dismissal will not be affirmed if the allegations support relief on any possible theory."). In making this determination, the Court "must accept all well-pleaded facts as true, and . . . view them in the light most favorable to the plaintiff." Indest, 164 F.3d at 261; Campbell, 781 F.2d at 442 ("the complaint is to be liberally construed in favor of the plaintiff). "All questions of fact and any ambiguities in the current controlling substantive law must be resolved in the plaintiffs favor." Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001).
In support of his arguments, Glenn cites only one case, Babb v. Boney, 710 So.2d 1132 (2d Cir. 1998). In Babb, the court affirmed a directed verdict dismissing the plaintiff's claims against Oglesby, a defendant who had been part of a brawl involving plaintiffs friends outside a nightclub, but who had not personally directed any blows against plaintiff when plaintiff intervened to pull a friend to safety. The Second Circuit agreed with the trial court that the evidence presented at trial failed to demonstrate any breach of duty by Oglesby towards the plaintiff.
Given the procedural posture of Babb, it is of little guidance here. The decision, like all directed verdicts, was based on the evidence presented at trial. On a Rule 12(b)(6) motion, however, the Court must construe all questions of fact in plaintiff's favor. Lewis, 252 F.3d at 357. Even ambiguities in the law must be construed in plaintiff's favor. Id. Here, Glenn's alleged acts occurred at a high school sports event where plaintiff and his fellow referee were charged with officiating and keeping order. Glenn has presented no authority that would support this Court in concluding that Glenn, as a parent and spectator, owed no duty to the plaintiff to refrain from coming belligerently onto the basketball court and assaulting a person — be it a player, a coach, another referee, or another spectator. Even if the evidence elicited in discovery shows that Glenn personally threw no punches or kicks at plaintiff, this would not necessarily insulate him from liability. An act can be negligent whenever the circumstances are such that the actor realizes or should realize that his act is likely to affect the conduct of a third person in such a manner as to create an unreasonable risk of harm to the other. REST. TORTS.2d § 303. This is so whether the conduct of the third person is negligent, reckless, intentional, or even criminal. Id. at § 302A, 302B. Thus, construing the alleged facts in plaintiff's favor, the Court is unable to find that plaintiff could prove no set of facts that would entitle him to relief under a theory of negligence.
III. CONCLUSION
Accordingly, IT IS ORDERED that the Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, filed by defendant Frank Glenn, is DENIED.