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Evans v. Miley

United States District Court, E.D. Texas, Lufkin Division
Sep 22, 2023
694 F. Supp. 3d 755 (E.D. Tex. 2023)

Opinion

CIVIL ACTION NO. 9:21-CV-00052

2023-09-22

Christin EVANS, Plaintiff, v. Sydney MILEY, Claire O'Pella, Taylor Roberts, Marissa Williams, Kristen Wilson, Samantha Vargas, Scott Gordon, Board of Regents of Stephen F. Austin University, and Stephen F. Austin University, Defendants.

Mark Forest Underwood, Underwood Law Office, Inc., McKinney, TX, Alexander Charles Johnson, Randall L. Kallinen, Kallinen Law PLLC, Houston, TX, for Plaintiff. Adam Bierce Allen, Allen & Thauwald, P.C., Tyler, TX, for Defendant Marrissa Williams.


Mark Forest Underwood, Underwood Law Office, Inc., McKinney, TX, Alexander Charles Johnson, Randall L. Kallinen, Kallinen Law PLLC, Houston, TX, for Plaintiff. Adam Bierce Allen, Allen & Thauwald, P.C., Tyler, TX, for Defendant Marrissa Williams. ORDER DENYING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT Michael J. Truncale, United States District Judge

Before the Court are four Motions for Summary Judgment filed by Defendants Sydney Miley, Claire O'Pella, Taylor Roberts, and Marissa Williams (the "Defendants"). [Dkts. 128, 129, 130, and 131]. Despite the number of motions, there is considerable similarity and overlap in the arguments they raise. Accordingly, the Court addresses these motions together. For the reasons discussed below, Defendants' Motions are DENIED.

I. BACKGROUND

In the Fall Semester of 2020, Plaintiff Christin Evans ("Evans") was a first-year student at Stephen F. Austin University ("SFA University"). [Dkt. 130 at 4]. Evans and the Defendants all resided in Lumberjack Landing Residence Hall. Id. Evans shared a dorm suite with Defendants Kristen Wilson ("Wilson") and Claire O'Pella ("O'Pella"). [Dkt. 154-8 at 15]. Defendants Marissa Williams ("Williams"), Sydney Miley ("Miley"), and Taylor Roberts ("Roberts") shared a different dorm suite. [Dkt. 154-4 at 7].

On the afternoon of September 13, 2020, Evans asserts that she and the Defendants were spending time together. [Dkt. 85 at 6]. Evans contends that Williams made a series of threatening comments to her that afternoon, including "Oh Christin, I'm going to end up stabbing you" and "I am going to kill you." [Dkt. 128 at 5].

In the early morning hours of September 14, 2020, after Evans had gone to bed, Williams allegedly began "crying" and "freak[ing] out." [Dkt. 128 at 5; Dkt. 129 at 4]. Miley, O'Pella, Roberts, and Wilson, among others, came to Williams's room, where Williams asserted that she feared Evans because Evans had supposedly hexed her and because of previous incidents supposedly involving Evans and scissors. [Dkt. 128 at 5; Dkt. 154 at 2; Dkt. 154-4 at 14-15].

At around 3:00 A.M., a group of the Defendants contacted Residence Hall Community Assistant, Anna Wane ("Wane"). [Dkt. 154 at 3]. Wilson, O'Pella, Miley, and Roberts purportedly told Wane that "Williams was having a manic episode and [that] Evans was responsible." [Dkt. 154 at 3; Dkt. 154-1 at 9-10]. Specifically, they asserted that Williams's mania was due to Evans " 'trying to kill and stab her' as well as other student residents with scissors." [Dkt. 128 at 5; Dkt. 154-1 at 10]. Wane, in response, contacted the Hall Director, Lashirine B. Howard ("Howard"), and relayed the information given to her by the Defendants. [Dkt. 154-1 at 10; Dkt. 154-6 at 21]. Subsequently, at 3:40 A.M., Wane telephoned the SFA University Campus Police and reported an incident involving a resident making threats to stab and kill other residents with scissors. [Dkt. 130 at 6; Dkt. 154-1 at 1; Dkt. 154-5 at 3].

Upon their arrival at the residence hall, Evans contends that the police officers spoke with the Defendants, who falsely claimed that she had threatened to stab them with scissors. [Dkt. 138 at 6; Dkt. 154 at 6-7; Dkt. 154-8 at 17, 22]. Some of the Defendants proceeded to let the police officers into Evans's dorm room. [Dkt. 131 at 6; Dkt. 154-1 at 10]. The police officers entered Evans's room with guns, tasers, and flashlights drawn. [Dkt. 154 at 8; Dkt. 154-1 at 5]. They woke her up, instructed her to step off her bed, questioned her inside and outside of her room, and searched her room for the purported pair of scissors. [Dkt. 154-8 at 21; Dkt. 154-1 at 5].

Evans alleges that this "traumatic" incident severely altered her life. [Dkt. 154-8 at 34; Dkt. 85 at 10]. After finishing the semester "in a constant state of anxiety, fear, and awareness," she withdrew from SFA University, moved away from her family, and left the State of Texas to start over. [Dkt. 85 at 10]. Evans also asserts that because of event she continues to experience "constant anxiety attacks, depression, stomachaches, headaches that come with fevers, constant shaking, loss of appetite, [ ] disassociation, suppressed memories and memory loss, [and] crying spells." [Dkt. 154-8 at 35]. This lawsuit followed. In her Second Amended Complaint, Evans asserts that the Defendants are liable for the torts of (1) instigation, (2) negligence, and (3) gross negligence. [Dkt. 85 at 12-14]. The Defendants deny these claims and seek summary judgment. [Dkts. 128, 129, 130, and 131].

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, "[s]ummary judgment is proper when the pleadings and evidence demonstrate that no genuine issue of material fact exists, and the movant is entitled to judgment as a matter of law." DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005); Fed. R. Civ. P. 56(c). "An issue is material if its resolution could affect the outcome of the action." DIRECTV, 420 F.3d at 536. "A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. All reasonable inferences must be drawn in favor of the nonmoving party. Smith v. Amedisys Inc., 298 F.3d 434, 440 (5th Cir. 2002). There is no genuine issue of material fact if, when the evidence is viewed in the light most favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving party. Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991) (citations omitted).

If the dispositive issue is one on which the nonmoving party has the burden of persuasion at trial, the moving party may satisfy its burden of production by either (1) submitting affirmative evidence that negates an essential element of the nonmovant's claim, or (2) demonstrating that there is no evidence in the record to establish an essential element of the nonmovant's claim. St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987) (internal citations omitted).

If, under the first option, the nonmoving party cannot point to evidence sufficient to dispute the movant's contention that there are no disputed facts, the moving party is entitled to summary judgment as a matter of law. First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Under the second option, the nonmoving party may defeat the motion by pointing to "supporting evidence already in the record that was overlooked or ignored by the moving party." Celotex Corp. v. Catrett, 477 U.S. 317, 332-33, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting). "[C]onclusory allegations unsupported by concrete and particular facts will not prevent an award of summary judgment." Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995).

If the nonmoving party can meet its burden under either of these scenarios, the burden shifts back to the movant to demonstrate the nonmovant's inadequacies. Celotex, 477 U.S. at 332-33, 106 S.Ct. 2548. If the movant meets this burden, "the burden of production shifts [back] to the nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving party's papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f)." Celotex, 477 U.S. at 332 n.3, 106 S.Ct. 2548. "Summary judgment should be granted if the nonmoving party fails to respond in one or more of these ways, or if, after the nonmoving party responds, the court determines that the moving party has met its ultimate burden of persuading the court that there is no genuine issue of material fact for trial." Parekh v. Argonautica Shipping Invests. B.V., No. CV 16-13731, 2018 WL 295498, at *3 (E.D. La. Jan. 4, 2018) (quoting Celotex, 477 U.S. at 332 n.3, 106 S.Ct. 2548).

III. DISCUSSION

A. Defendant Roberts's Objections

In the context of a motion for summary judgment, "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. Pro. 56(c)(2). In her Objection and Reply to Plaintiff's Joint Response to Defendants' Motions for Summary Judgment [Dkt. 160], Defendant Roberts argues that the Court should not consider either the Incident Report [Dkt.154-1] or the 911 Call and Dispatch Transcript (the "Transcript") [Dkt. 154-5] relied upon by Evans in her Joint Response to Defendants' Motions for Summary Judgment [Dkt. 154]. Specifically, Roberts asserts that both are inadmissible and, thus, unavailable for this Court's consideration because (1) neither are authenticated as required by Federal Rule of Evidence 901(a), and (2) both contain inadmissible hearsay in violation of Federal Rules of Evidence 801(c) and 805. [Dkt. 160]. The Court considers the admissibility of the Incident Report and the Transcript in turn.

1. Defendants Roberts's authentication and hearsay objections to the Incident Report are overruled.

In her Joint Response to Defendants' Motions for Summary Judgment [Dkt. 154], Evans cites to an Incident Report prepared by the SFA University Police. [Dkt. 154-1]. The Incident Report contains a variety of information related to the underlying event, including police accounts of it and participants' statements. [Dkt. 154-1]. Evans relies upon the Incident Report to demonstrate how the event unfolded from Wane's perspective, specifically Wane's account of who told her what and who the police interacted with first upon their arrival at Lumberjack Landing. [Dkt. 154-1 at 3-4, 6, 8-9]. As noted above, Roberts objects to the Incident Report on both authentication and hearsay grounds. For the following reasons, Roberts's objections to the Incident Report are overruled.

a. Authentication

Under Federal Rule of Evidence 901(a), "[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Civ. Pro. 901(a). At the summary judgment stage, "unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence." Dugas v. Ace Am. Ins. Co., 468 F. Supp. 3d 769, 772 (W.D. La. 2020) (citing Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987)). That being said, "it is not dispositive whether the [documents] in their current form are admissible in evidence." LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534 (5th Cir. 2016). Indeed, "[a]t the summary judgment stage, materials cited to support or dispute a fact need only be capable of being 'presented in a form that would be admissible in evidence.' " Id. (citing Fed. R. Civ. P. 56(c)(2)). Furthermore, "[a]uthentication is a low burden," Allen v. Hays, 812 F. App'x 185, 193 (5th Cir. 2020), that can be satisfied in a variety of ways, including through "testimony by a witness with knowledge," Fed. R. Evid. 901(b)(1); "[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances," id. 901(b)(4); the presence of a seal and signature, id. 902(1); and the presence of a signature and certification, id. 902(2).

Here, the Incident Report is not signed, sealed, or accompanied by a certification. There has not been testimony by a witness with knowledge as to its authenticity. However, the Court notes that both Evans and the Defendants referenced and utilized the Incident Report during depositions to support their positions. [Dkt. 154-6; Dkt. 154-7]. In fact, Defendant Miley utilized the Incident Report in her Motion for Summary Judgement. [Dkt. 129 at 7; Dkt. 129-8]. Additionally, in responding officer Christopher Newberg's ("Officer Newberg's") deposition he testified that he prepared a supplement included within the report. [Dkt. 154-7 at 32]. The Incident Report's appearance and contents, which include a Chain of Custody Report, also support this document being what it is purported to be by Evans. [Dkt. 154].

Accordingly, although the Incident Report may not be sufficient to qualify as authenticated today, the Court finds that it "can[ ] be presented in a form that would be admissible in evidence." See Fed. R. Civ. Pro. 56(c)(2) (emphasis added). At the summary judgment stage this is enough. Therefore, the Court overrules Defendant Roberts's authentication objection to the Incident Report for purposes of ruling on the underlying Motions for Summary Judgment. Should this case proceed to trial, however, Evans will need to properly authenticate the Incident Report.

b. Hearsay

"In general, the rule against hearsay bars the admission of any statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." United States v. Noria, 945 F.3d 847, 852 (5th Cir. 2019) (internal quotation marks omitted); see Fed. R. Evid. 801(c) (defining "hearsay"); Fed. R. Evid. 802 (deeming hearsay inadmissible unless a federal statute, the Federal Rules of Evidence, or a rule prescribed by the United States Supreme Court provides otherwise); Fed. R. Evid. 805 (noting that hearsay within hearsay is inadmissible unless each level of hearsay meets the requirements of an exception).

In her Joint Response to Defendants' Motions for Summary Judgment [Dkt. 154], Evans relies on the following statements within the Incident Report:

"Wane stated that she was awakened by Wilson and Opella on the [sic] 9/14/2020 around 3:00 am. Wane stated that she does not remember specifically who stated what, but that both Wilson and Opella were worried about Williams. After getting herself together, Wane contacted Williams to ascertain what was going on. Wane stated that Williams refused to talk to her and that Williams' friends (Miley, Wilson, Opella, and Roberts) explained what occurring. Wane stated it was difficult to hear and understand what had happened due to everyone speaking at the same time. The group of friends stated that Williams was having a manic episode and Evans was responsible . . . . Wane stated that she observed the Officers when they arrived on the scene and that none of the officers asked her any questions . . . . Wane stated that residents Wilson and Opella advised the officer were [sic] room #116N was and stated Evans was asleep.
[Dkt. 154-1 at 9-10]. Defendant Roberts contends that the above constitutes inadmissible hearsay within hearsay. The Court disagrees and analyzes the three levels of purported hearsay in the Incident Report in turn.

The first level of purported hearsay that the Court must evaluate is the Incident Report itself. One of the many exceptions to the rule against hearsay is the "public records" exception. Fed. R. Evid. 803(8). The public records exception permits records or statements of a public office that "set[ ] out . . . a matter observed while under a legal duty to report." Fed. R. Evid. 803(8)(A)(ii). In civil cases, "[p]olice reports are generally admissible under Rule 803(8) as public records that set forth factual findings from a legally authorized investigation." Sanders v. Sky Transp., LLC, 569 F. Supp. 3d 455, 458 (E.D. Tex. 2021). "Certain information in a police report, however, such as witness statements offered to prove the truth of the matter asserted, are 'hearsay within hearsay' and are inadmissible unless each level of hearsay qualifies under one of the hearsay exceptions." Bedford Internet Off. Space, LLC v. Travelers Cas. Ins. Co., 41 F. Supp. 3d 535, 544 (N.D. Tex. 2014). Accordingly, the Court holds that the Incident Report itself is admissible hearsay under Rule 803(8) as a public record. The statements by Wane and the Defendants detailed in the report, however, are not covered by the public records exception.

The second level of hearsay that must be evaluated by the Court comprises Wane's statements within the Incident Report. As noted above, an out-of-court statement is only hearsay if it is offered to prove the truth of the matter asserted. See Noria, 945 F.3d at 852; Fed. R. Evid. 801(c). Out-of-court statements are not offered for the truth of the matter asserted if they are offered to establish "the declarant's knowledge of the existence of some fact," United States v. Parry, 649 F.2d 292, 295 (5th Cir. 1981), that someone had knowledge or notice of something, In re Morrison, 555 F.3d 473, 483 (5th Cir. 2009), or "to explain the course of the investigation," United States v. Sharp, 6 F.4th 573, 582-82 (5th Cir. 2021); see United States v. Kizzee, 877 F.3d 650, 659 (5th Cir. 2017). Here, it seems to the Court that Wane's statements are not being offered for the truth of the matter asserted. For example, Wane's initial statements about being woken up and being told by the Defendants that Evans was responsible for Williams's behavior appears to be used to demonstrate Wane's knowledge of the events of that evening and who was involved. See Parry, 649 F.2d at 295. Additionally, Wane's statements regarding the police's response and Defendants' statements to the police appear to be offered to explain how the investigation that evening unfolded as well as the police's knowledge as to what went on that evening and who was involved. See Sharp, 6 F.4th at 582-82; In re Morrison, 555 F.3d at 483. Therefore, the Court holds that Wane's statements within the Incident Report are not hearsay and, thus, admissible.

Finally, the Court must evaluate the admissibility of the third level of purported hearsay—the statements by Defendants that are referenced by Wane in the Incident Report. Under Federal Rule of Evidence 801(d)(2), a statement by and offered against an opposing party is not hearsay. Fed. R. Evid. 801(d)(2). Because the statements referenced by Wane in the Incident Report were made by the Defendants and the statements are being offered by Evans against the Defendants, the Court holds that these statements are admissible non-hearsay under Rule 801(d)(2).

Accordingly, because every level of purported hearsay within the Incident Report is either admissible non-hearsay or admissible hearsay subject to an exception, the Court overrules Defendant Roberts's hearsay objection to the Incident Report's consideration.

2. Defendants Roberts's authentication and hearsay objections to the 911 Call and Dispatch Transcript are overruled.

In her Joint Response to Defendants' Motions for Summary Judgment [Dkt. 154], Evans also cites to a Transcript [Dkt. 154-5]. The Transcript contains statements by Wane to the police dispatcher as well as statements by the dispatcher and responding police officers to each other. [Dkt. 154-5]. Evans relies upon the Transcript to demonstrate what knowledge Wane and the police had that evening. [Dkt. 154-1 at 3-4, 6, 8-9]. Defendant Roberts objects to the Transcript on both authentication and hearsay grounds. For the following reasons, the Court overrules both objections to the Transcript.

a. Authentication

As outlined above, "[a]t the summary judgment stage, materials cited to support or dispute a fact need only be capable of being 'presented in a form that would be admissible in evidence.' " LSR Consulting, LLC, 835 F.3d at 534 (citing Fed. R. Civ. P. 56(c)(2)). Moreover, "[a]uthentication is a low burden," Allen v. Hays, 812 F. App'x at 193, that can be satisfied in a variety of ways. Fed. R. Evid. 901, 902.

Here, the Transcript is not signed, sealed, or accompanied by a certification. There has not been testimony by a witness with knowledge as to its authenticity. However, the Transcript's appearance and contents and the reference to the development of such a transcript in the Incident Report support this document being what it is purported to be by Evans. [Dkt. 154-1 at 13].

Accordingly, although the Transcript may not qualify as authenticated today, the Court finds that it "can[ ] be presented in a form that would be admissible in evidence." See Fed. R. Civ. Pro. 56(c)(2) (emphasis added). At the summary judgment stage this is sufficient. Therefore, the Court overrules Defendant Roberts's authentication objection to the Transcript for purposes of ruling on the underlying Motions for Summary Judgment. Evans will need to properly authenticate the Transcript if this case proceeds to trial.

b. Hearsay

As detailed above, hearsay is inadmissible unless an exception applies. See Noria, 945 F.3d at 852; Fed. R. Evid. 801(c), 802, 805. In her Joint Response to Defendants' Motions for Summary Judgment [Dkt. 154], the Plaintiff relies on several statements within the Transcript between Wane and the dispatcher and between the dispatcher and the responding officers. [Dkt. 154-5]. Defendant Roberts contends that the Transcript and the statements therein constitute inadmissible hearsay within hearsay. [Dkt. 160]. As outlined below, the Court disagrees.

"Transcripts or recordings of 911 calls may be admissible hearsay." Lloyds v. Jones, No. 4:05-CV-389, 2009 WL 2970503, at *1 (E.D. Tex. Sept. 9, 2009). Specifically, "[c]ourts in the Fifth Circuit have found such recordings [and transcripts] to be admissible under the excited utterance and present sense impression exceptions to the hearsay rule and under the business records exception to the hearsay rule." See id. (internal citations omitted) (first citing United States v. Jackson, No. 98-60464, 1999 WL 1330689, *8 (5th Cir. Dec. 17, 1999); and then citing United States v. Verlin, 466 F. Supp. 155, 159-60 (N.D. Tex. 1979)).

With respect to the Transcript itself—the first level of hearsay—the Court must determine whether it can satisfy the business records hearsay exception. Under Federal Rule of Evidence 803(6), an out-of-court statement constitutes admissible hearsay if it is "[a] record of an act, event, condition, opinion, or diagnosis" and (1) "the record was made at or near the time by—or from information transmitted by—someone with knowledge"; (2) "the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit"; (3) "making the record was a regular practice of that activity"; (4) "all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification"; and (5) "the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness." Fed. R. Evid. 803(6).

Although Evans has not provided testimony or certification demonstrating that the Transcript meets these requirements, "[a]t the summary judgment stage, materials cited to support or dispute a fact need only be capable of being 'presented in a form that would be admissible in evidence.' " See LSR Consulting, LLC, 835 F.3d at 534 (citing Fed. R. Evid. 54(c)(2)); Dugas, 468 F. Supp. 3d at 772. Because 911 and dispatch call transcripts are generally admissible under the business records exception, see Lloyds, 2009 WL 2970503, at *1, and because the Incident Report contains information about how, why, and by whom these recordings were pulled and transcribed [Dkt. 154-1 at 13], the Court believes the Transcript can be offered in a form that would be admissible at trial under Federal Rule of Evidence 803(6). Therefore, for the purpose of considering the underlying Motions for Summary Judgment, the Court holds that the Transcript itself meets the business records hearsay exception. For this evidence to be admissible at trial, however, the Plaintiff must fully comply with Federal Rule of Evidence 803(6).

The second level of hearsay consists of statements made by Wane, the dispatcher, and the responding officers. Under Federal Rule of Evidence 803(1), a statement qualifies as a present sense impression and, thus, is admissible hearsay if it is "describing or explaining an event or condition, [and is] made while or immediately after the declarant perceived it." Fed. R. Evid. 803(1). The Fifth Circuit held that an out-of-court statement made fifteen minutes after an event does not qualify as "immediately after" for purposes of this exception. United States v. Cain, 587 F.2d 678, 681 (5th Cir. 1979); see also Versata Software, Inc. v. Internet Brands, Inc., No. 2:08-cv-313, 2012 WL 2595275, at *8-9 (E.D. Tex. July 5, 2012). When the "immediately after" requirement in Rule 803(1) cannot be met, an out-of-court statement may still be admissible as an excited utterance under Federal Rule of Evidence 803(2) if "the declarant was still in a state of excitement resulting from the event." See Cain, 587 F.2d at 681. More specifically, such a statement qualifies as an excited utterance if it "relate[s] to a startling event or condition, [and is] made while the declarant was under the stress or excitement that it caused." Fed. R. Evid. 803(2).

Here, the dispatcher's statements to Wane and the dispatcher's and responding police officers' statements to each other were contemporaneous with or "immediately after" the underlying perceptions because these statements were made instantly thereafter or within mere minutes. [Dkt. 154-5 at 3-5]; see Fed. R. Evid. 803(1). Therefore, the statements in the Transcript by the dispatcher and the responding police officers are admissible as present sense impressions.

Wane's statements to the dispatcher, however, were made neither contemporaneously nor "immediately after" Wane's perception of the underlying event. See Cain, 587 F.2d at 681; Fed. R. Evid. 803(1). According to the Transcript, Wane called the SFA University Police at 3:40 A.M. [Dkt. 154-5 at 3]. Evans's Joint Response [Dkt. 154 at 3], the Incident Report [Dkt. 154-1 at 10], and Wane's Deposition [Dkt. 154-6 at 37], however, indicate that Wane was woken up by the Defendants and informed that Williams was upset because of Evans at around 3:00 A.M. Between 3:00 A.M. and 3:40 A.M., Wane indicates that she "g[ot] herself together," contacted Williams, spoke with Miley, Wilson, O'Pella, and Roberts, and called her supervisor for instructions. [Dkt. 154-1 at 9-10]. Because more than fifteen minutes likely passed between when Wane spoke to Defendants and called the police, the Court finds that Wane's statements to the dispatcher were not sufficiently close in time to her perceptions to qualify as present sense impressions. See Cain, 587 F.2d at 681; Fed. R. Evid. 803(1).

Even so, Wane's statements were seemingly made while Wane "was under the stress of [the] excitement" caused by that night's events. See Fed. R. Evid. 803(2); United States v. Bates, No. 22-60261, 2023 WL 1099148, at *2 (5th Cir. Jan. 20, 2023) (holding that a 911 caller's statements qualified as excited utterances because the "calls were made while the caller was under the stress of the excitement caused by her interactions and experiences with [the defendant] and offered details as to the startling events"); United States v. Baptiste, 264 F.3d 578, 591 (5th Cir. 2001) (stating that "[t]he amount of time between the startling event and the hearsay statement, though relevant, is not dispositive" with respect to excited utterances); Cain, 587 F.2d at 681; see also United States v. Pursley, 577 F.3d 1204, 1220-22 (10th Cir. 2009) (listing "the amount of time between the event and the statement," "the nature of the event," and "the subject matter of the statement," among other things, as relevant factors in evaluating whether a statement is an excited utterance, and holding that a statement approximately one hour after a startling event qualified as an excited utterance). At 3:40 A.M. when she called the police, Wane had been rousted from bed, told by the Defendants that Evans had threatened to stab them and others with scissors, and instructed by her supervisor to call the police. [Dkt. 154-1 at 9-10; Dkt. 154-5]. Given the relatively short duration between when Wane learned about Evans's purported threats and called the police, the fluidity of the situation, the seriousness of the accusations made, and her statements' focus on the details of the incident, this Court is satisfied that Wane remained "under the stress of excitement" when she spoke to the dispatcher. See Fed. R. Evid. 803(2). Therefore, Wane's statements in the Transcript are admissible as excited utterances under Rule 803(2). See Fed. R. Evid. 803(2).

Accordingly, because every level of hearsay within the Transcript is admissible subject to an exception, the Court overrules Defendant Roberts's hearsay objection to the Transcript.

B. Instigation Claim

Texas law has long recognized that a tortfeasor may affect a false imprisonment by instigating law enforcement to arrest or detain another individual. Newton v. Rhoads Bros., 24 S.W.2d 378, 379 (Tex. Comm'n App. 1930). In Newton, the Supreme Court of Texas described false imprisonment as "the use of any means which restrains the party detained from moving one place to another as he may see proper." Id. (citation omitted). The Newton decision's "use of any means" language has come to undergird the intentional tort of "instigation," which recognizes that a person can act tortiously even "without participating in the detention" themselves. Alsheikh v. Dyab, No. 07-08-00162-CV, 2010 WL 1380978, at *3 (Tex. App.—Amarillo Apr. 7, 2010, no pet.) (mem. op.). Thus, liability for instigation may fall on a third party if "the act of arrest [is] made by the officer . . . to carry out the request of the third party." Id. (alteration in original) (quoting 32 Am. Jur. 2d False Imprisonment § 41 (1995)). Moreover, a person can be liable for instigation even "without an actual arrest, assault, or imprisonment." Newton, 24 S.W.2d at 379.

The law draws a line between the tort of instigation and the act of reporting a crime. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 507-08 (Tex. 2002). Instigation generally requires a tortfeasor to actually "request or direct" a person's arrest or detention. Id. at 507. Conversely, when a citizen wrongfully, but innocently, reports a crime, "the law will not permit the inference to be drawn that he 'requested or directed' the arrest . . . ." Id. (citing Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, 1063 (1898)). But a person who both wrongfully and knowingly instigates an arrest is subject to tort liability:

[W]hile a simple mistake in identification would not make a reporting party liable, if a person should willfully identify the wrong man as being the criminal, for the purpose of having him arrested, that person could be liable for false imprisonment. This language is consistent with the prevailing majority rule that a third party will not be liable for instigating a false imprisonment unless the third party knowingly provides false information resulting in the arrest.
Rodriguez, 92 S.W.3d at 508-09 (emphasis added) (internal quotation marks omitted). Put differently, an express request or direction is not always required. A person who "knowingly" makes a false report may be liable for instigation. Alsheikh, 2010 WL 1380978, at *3 (holding that an individual instigated his partner's arrest by falsely reporting to the police that his partner robbed him at gunpoint).

1. There are genuine issues of material fact as to whether the Defendants requested or directed Evans's detention.

The Defendants' primary argument for summary judgment on Evans's instigation claim is that they neither requested nor directed the police officers to arrest or detain Evans. [Dkt. 128 at 9-10; Dkt. 129 at 7-9; Dkt. 130 at 10-11; Dkt. 131 at 7-8]. Specifically, the Defendants argue that they could not have requested or directed the police officers to arrest or detain Evans because they did not call the police—Wane did—or request that anyone call the police. [Dkt. 128 at 10; Dkt. 129 at 7-10; Dkt. 130 at 11; Dkt. 131 at 8]. Moreover, Roberts, Miley, and Williams argue that they could not have requested or directed the police officers' actions because they did not speak to the police about Evans before the police entered her room or provide the police with access to her room. [Dkt. 128 at 10; Dkt. 129 at 8-9; Dkt. 130 at 11]. O'Pella contends that even though she provided the police with access to Evans room, this does not constitute a request or direction to the police because she "begged" them not to enter Evans's room. [Dkt. 131 at 8].

Evans contests the Defendants' claims that they did not request or direct the police officers' actions that night by pointing to Wane's statements in the Transcript and Incident Report, responding officers' statements in the Transcript, and Officer Newberg's deposition testimony. [Dkt. 154 at 8-9]. Specifically, Evans cites to the Transcript to show that when Wane called the police she never mentioned Evans or identified Evans's room, Lumberjack Landing 116N. [Dkt. 154 at 9]. Rather, she reported a dispute involving scissors between the residents of Lumberjack Landing 103N—Williams's and Miley's dorm room. [Dkt. 154 at 9; Dkt. 154-4 at 7]. Statements by the responding officers to one another within the Transcript likewise reference a dispute between the roommates of 103N rather than a dispute involving Evans or the resident of 116N. [Dkt. 154 at 9]. Evans next cites Wane's statement in the Incident Report that the police spoke with the Defendants—not her—when they arrived and before they entered Evans's room. Id. Finally, Evans cites to Officer Newberg's deposition testimony that the police would not have entered Evans's room had the group of girls they encountered in the hallway not "directed" them there. [Dkt. 154 at 9; Dkt. 154-7 at 22-24]. According to Evans, this evidence together demonstrates that the Defendants did request or direct the police to arrest or detain Evans. [Dkt. 154 at 9].

Defendants Roberts and Miley attempt to undercut the reliability of the evidence used by Evans in their individual Replies to Plaintiff's Joint Response. [Dkts. 159 and 160]. First, they seek to undermine Wane's statement that the police spoke with the Defendants instead of her before they entered Evans's room by pointing to Officer Clinton Russell statement in the Incident Report that the police spoke with Wane first and received Evans's room number from her. [Dkt. 159 at 3]. Roberts and Miley also pointed to contradictory deposition testimony by Wane that she cannot recall whether the police spoke with the Defendants or her when they arrived. [Dkt. 159 at 4; Dkt. 160 at 4]. Miley also referenced Evans's assertion in her Second Amended Complaint that Wane told the police officers which room was occupied by Evans. [Dkt. 159 at 3; Dkt. 85 at 8]. Second, Roberts and Miley attack Evans's reliance on Officer Newberg's deposition testimony by citing his contradictory statements within that deposition. [Dkt. 159 at 4-5; Dkt. 160 at 3]. Specifically, they point to Officer Newberg's testimony that he can no longer recall the exact events of that night and that he cannot remember the specific faces of those he spoke with. [Dkt. 159 at 4; Dkt. 160 at 3]. Furthermore, in her Reply, Miley asserts that merely giving the police Evans's room number does not constitute requesting or directing the police to arrest or detain Evans. [Dkt. 159 at 3].

Based on the evidence raised by all parties, the Court holds that genuine issues of material fact exist as to whether the Defendants requested or directed the police to arrest or detain Evans. Which account of that night's events is true, what information the Defendants provided the police with, and the reliability of various witnesses' statements at different periods in time is a question for the jury to decide. Summary judgment, therefore, is improper.

2. There are genuine issues of material fact as to whether Evans was arrested or detained.

Defendant O'Pella alone argues for summary judgment on Evans's instigation claim by asserting that Evans was not arrested or detained. [Dkt. 131 at 8]. Specifically, she relies on Martinez v. Goodyear Tire & Rubber, 651 S.W.2d 18, 20 (Tex. App.—San Antonio 1983, no writ) to argue that Evans was not detained because (1) "there is no allegation that the police officers, through violence, threats, or any other means, restrained Plaintiff from moving from one place to another" and (2) "[t]he officers requested that Plaintiff come to the door to discuss the threats" and "did not even tell Plaintiff that she could not leave, or that she could not ask them to leave and shut the door." [Dkt. 131 at 8]. Although Evans did not specifically address this argument in her Joint Response, she asserts and provides evidence that police entered her room with flashlights, guns, and tasers drawn, ordered her out of bed, searched her room for scissors, and questioned her inside and outside of her room. [Dkt. 154 at 8; Dkt. 154-1 at 5; Dkt. 154-8 at 21].

The Court does not find O'Pella's argument persuasive. Martinez is distinguishable in its facts and procedural posture. See 651 S.W.2d at 20. Specifically, Martinez involves a pure false imprisonment claim rather than an instigation claim and an assertion by the plaintiff of false imprisonment by threat. Id. Martinez also concerned a plea of privilege rather than a motion for summary judgment. See id. at 19-20; see also Duffield v. Periman, No. 01-98-01131-CV, 1999 WL 1018180, at *3 (Tex. App.—Houston Nov. 10, 1999, no writ) ("Notably, the standard of review for the plea of privilege in Martinez is the opposite from the summary judgment in this case. In a plea of privilege, we do not disturb the judgment if the evidence is conflicting and there exists evidence of sufficient probative force to support the judgment.").

The Court finds Newton's assessment of arrest and detention to be more persuasive and applicable here. See 24 S.W.2d at 379. In Newton, the court stated:

"Any intentional conduct that results in the placing of a person in a position where he cannot exercise his will in going where he may lawfully go constitutes false imprisonment. It is committed by the use of any means which restrains the party detained from moving from one place to another as he may see proper."
Id. (citations omitted). Using this standard, the court held that the plaintiff was detained by the police even though she was not arrested and even though she went with police voluntarily because a jury might find that the police would not have let the plaintiff "go[ ] on her way without detention" given the accusation leveled against her—stealing jewelry. Id. at 380.

Applying Newton, this Court finds that a genuine dispute of material fact exists regarding whether Evans was detained. See 24 S.W.2d at 380. Under the circumstances outlined above, a jury could certainly find that Evans was not free to go on her way. See id. Accordingly, summary judgment for O'Pella is also not warranted on this ground.

C. Negligence Claim

Under Texas law, a plaintiff alleging negligence must establish four elements to prevail: (1) "a legal duty owed to the plaintiff by the defendant"; (2) "a breach of that duty"; (3) "an actual injury to the plaintiff"; and (4) "a showing that the breach was the proximate cause of the injury." Simien v. C.R. Bard, Inc., No. 1:20-CV-131, 2020 WL 4922331, at *8 (E.D. Tex. Aug. 20, 2020) (citing Eckhardt v. Qualitest Pharm., Inc., 751 F.3d 674, 681 (5th Cir. 2014)); see Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006).

In her Second Amended Complaint, Evans asserts that Defendants were negligent because Defendants owed her a duty not to engage in the tort of instigation and breached that duty. [Dkt. 85 at 13]. In their Motions for Summary Judgment, the Defendants devote most of their negligence sections to arguing that (1) they did not owe various other duties to Evans; (2) they could not have breached their duty not to engage in instigation because they are entitled to summary judgment on the instigation claim, and (3) they at most owed and did not breach a duty to exercise reasonable care to avoid a foreseeable risk of injury. [Dkt. 128 at 7-9; Dkt. 129 at 9-11; Dkt. 130 at 8-10; Dkt. 131 at 9-10]. Evans responded by asserting that the Defendants breached their duty not to engage in instigation when (1) they told Wane that Evans was responsible for Williams's mania and (2) they directed the responding police officers to Evans's room. [Dkt. 154 at 11].

Evans also alleges that she was owed a duty not to engage in swatting and "to corroborate the veracity of the information communicated to them before escalating the situation into a dangerous one." [Dkt. 85 at 13]. This Court previously ruled that Texas' swatting statute does not apply to these events because the statute is not retroactive. [Dkt. 83 at 12-13]. Additionally, this Court previously ruled and still finds that Evans's statement regarding the duty to corroborate the report pertains to Wane and Howard, who were previously defendants in this action, and not to the Defendants. [Dkt. 126 at 7]. Accordingly, in ruling on Defendants' Motions for Summary Judgment, the Court will only evaluate whether Defendants had and breached a duty not to engage in instigation.

This Court previously ruled that under Texas law, a plaintiff has the right to plead negligence and gross negligence as ancillary claims alongside claims for intentional torts, including instigation. [Dkt. 83 at 16-17]. This Court explained that when claims are so structured, Texas courts will infer the existence of a "general duty" that sustains ancillary claims for negligence. Id. at 17. In other words, defendants have a duty to refrain from engaging in intentionally tortious activity, and a defendant who breaches that duty—by committing an intentional tort—may be held liable for negligence. Id. Accordingly, because Evans pleaded that the Defendants owed and breached a duty not to engage in instigation and this Court previously held that Defendants owed said duty to Evans, the Court will confine its analysis to whether a genuine dispute of material fact exists regarding Defendants' breach of their duty not to engage in instigation. Defendants' arguments regarding other duties that may or may not have been owed to Evans are irrelevant.

Given the Court's above ruling that a genuine dispute of material fact exists as to whether the Defendants committed the tort of instigation, the Court also rules that a genuine dispute of material fact exists as to whether Defendants breached their duty to Evans to refrain from engaging in instigation. Therefore, Defendants' Motions for Summary Judgment on the negligence claim are denied.

D. Gross Negligence Claim

To prove gross negligence, a plaintiff must show by clear and convincing evidence two additional elements: (1) that "viewed objectively from the actor's standpoint, the act or omission complained of must involve an extreme degree of risk; considering the probability and magnitude of the potential harm to others"; and (2) that "the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others." Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001); U-Haul Int'l., Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). "Under the objective component, 'extreme risk' is not a remote possibility or even a high probability of minor harm, but rather the likelihood of the plaintiff's serious injury." U-Haul Int'l., Inc., 380 S.W.3d at 137. "The subjective prong, in turn, requires that the defendant knew about the risk, but that the defendant's acts or omissions demonstrated indifference to the consequences of its acts." Id. "Circumstantial evidence is sufficient to prove either element." Lee Lewis Const., Inc., 70 S.W.3d at 785.

1. There are genuine issues of material fact as to whether the Defendants action involved an extreme degree of risk to Evans.

The Defendants largely recycle their arguments from their instigation sections to refute Evans's claim that their actions involved an extreme degree of risk to Evans. [Dkt. 128 at 12-13; Dkt. 130 at 13-14; Dkt. 131 at 12]. Roberts and O'Pella assert that they could not have created an extreme degree of risk to Evans because they were "simply attempting to assist a friend who was upset and crying in her dorm room," and did not request police involvement or say anything about Evans to Wane or the police. [Dkt. 128 at 12-13; Dkt. 131 at 12]. Williams similarly contends that she never spoke with Wane or the police regarding Evans or requested police involvement and, thus, did not create an extreme degree of risk to Evans. [Dkt. 130 at 13-14]. Miley seemingly did not address this element of gross negligence at all, preferring to rely instead on her argument that she breached no duty to Evans. [Dkt. 129 at 9-14]. In response, Evans argues that the Defendants created an extreme degree of risk to her by providing false information to police officers that resulted in them entering her dorm room with guns and tasers drawn. [Dkt. 144 at 11].

Because there are genuine issues of material fact as to what Defendants' actions were that night there are genuine issues of material fact as to whether Defendants' actions created an extreme degree of risk to Evans. Therefore, summary judgment on the gross negligence claim is inappropriate on this ground. 2. There are genuine issues of material fact as to whether the Defendants had actual, subjective awareness of the risk involved to Evans, but proceeded anyway.

Defendants made similar arguments regarding whether they were subjectively aware of the risk involved to Evans, but proceeded in conscious indifference to that risk. [Dkt. 128 at 13-14; Dkt. 129 at 9-14; Dkt. 130 at 14; Dkt. 131 at 12-13]. More specifically, the Defendants who make arguments on this element assert that they could not have had subjective awareness of the risk to Evans because none of them knew that Wane had called the police and none of them requested or directed the police to enter Evans's room. [Dkt. 128 at 13-14; Dkt. 130 at 14; Dkt. 131 at 12-13]. Evans refutes this by arguing that the Defendants were subjectively aware of the risk because they persisted in giving the police false information even after witnessing the escalation of events in response to providing Wane with the same false information about her. [Dkt. 154 at 11].

Here, too, the Court finds that genuine issues of material fact exist. Accordingly, Defendants' Motions for Summary Judgment on the gross negligence claim are denied.

IV. CONCLUSION

It is therefore ORDERED that Defendants' Motions for Summary Judgment [Dkts. 128, 129, 130, and 131] are DENIED.


Summaries of

Evans v. Miley

United States District Court, E.D. Texas, Lufkin Division
Sep 22, 2023
694 F. Supp. 3d 755 (E.D. Tex. 2023)
Case details for

Evans v. Miley

Case Details

Full title:Christin EVANS, Plaintiff, v. Sydney MILEY, Claire O'Pella, Taylor…

Court:United States District Court, E.D. Texas, Lufkin Division

Date published: Sep 22, 2023

Citations

694 F. Supp. 3d 755 (E.D. Tex. 2023)