Sam Doe v. Apostolic Assembly the Faith in Christ Jesus

Full title: Sue DOE and Sam Doe, Individually, and Jane Doe, Plaintiffs, v. The…

Court: United States District Court, W.D. Texas, El Paso Division.

Date published: Apr 6, 2020

452 F. Supp. 3d 503 (W.D. Tex. 2020)

Opinion

EP-19-CV-240-KC

2020-04-06

Sue DOE and Sam Doe, Individually, and Jane Doe, Plaintiffs, v. The APOSTOLIC ASSEMBLY OF the FAITH IN CHRIST JESUS and Stephen Mendoza Arellano, Defendants.

James M. Feuille, Stuart R. Schwartz, Scott Hulse, PC, El Paso, TX, for Plaintiffs. Marisa Y. Ybarra, Ray Pena McChristian PC, James (Jeep) O. Darnell, Jr., Jim Darnell, P.C., El Paso, TX, for Defendants.

KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE

James M. Feuille, Stuart R. Schwartz, Scott Hulse, PC, El Paso, TX, for Plaintiffs.

Marisa Y. Ybarra, Ray Pena McChristian PC, James (Jeep) O. Darnell, Jr., Jim Darnell, P.C., El Paso, TX, for Defendants.

ORDER

KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE

On this day, the Court considered Defendant Apostolic Assembly of the Faith in Christ Jesus's Rule 12(b)(6) Motion to Dismiss ("Motion"), ECF No. 14. For the following reasons, the Motion is GRANTED in part and DENIED in part.

I. BACKGROUND

The following facts and allegations are taken from Plaintiffs' First Amended Complaint ("Complaint"), ECF No. 12, and Plaintiffs' Response in Opposition to Defendant's Rule 12(b)(6) Motion to Dismiss ("Response"), ECF No. 16.¹

1 At this stage, the Court treats the allegations in Plaintiffs' Complaint as true solely to assess the merits of Defendant's Motion under Rule 12(b)(6)'s well-established standard. See Calhoun v. Hargrove , 312 F.3d 730, 733 (5th Cir. 2002).

Plaintiffs are Jane Doe and her parents, Sue Doe and Sam Doe. Compl. ¶ 1. Jane Doe was a minor at the time of the events giving rise to this lawsuit. Id. ¶ 19. Jane Doe has since reached the age of majority and proceeds in this lawsuit in her individual capacity. See Oct. 25, 2019, Order 1, ECF No. 10; see generally Compl. Her parents, Sue Doe and Sam Doe, assert claims in their individual capacities as well. See Oct. 25, 2019, Order 1; see generally Compl. Plaintiffs were granted leave to proceed under pseudonyms pursuant to Doe v. Stegall , 653 F.2d 180, 185 (5th Cir. 1981). Oct. 25, 2019, Order 1; Compl. ¶ 1. Defendants in this case are the Apostolic Assembly of the Faith in Christ Jesus ("the Church") and Stephen Mendoza Arellano. Compl. ¶¶ 2–3. The Church alone files the instant Motion. See Mot. ¶ 1.

At the time of the events at issue in this lawsuit, Mr. Arellano was thirty years old and an ordained minister for the Church. Compl. ¶ 6. He was working as the Church's New Mexico District Youth Treasurer "and was poised to become its President." Id. ¶ 7. Mr. Arellano's father, Jimmy M. Arellano, was the Pastor of the Church and the New Mexico District Bishop. Id. ¶¶ 10–11.

Plaintiffs allege that the Church "did not conduct any interview or a sufficient interview of Arellano prior to his hiring as New Mexico District Youth Treasurer or prior to his ordination as a youth minister." Id. ¶ 12. Mr. Arellano's role included serving as a "spiritual leader" over the youth-members of the Church, requiring him "to counsel, love, and provide[ ] guidance, direction, and emotional and psychological assistance to his parishioners." Id. ¶¶ 13, 15. At the time, Jane Doe was one of the Church's young parishioners, at fifteen and sixteen years old. Id. ¶¶ 15, 19.

The Church directed Mr. Arellano to act as a mentor for and chaperone trips with youth from the Church "without supervision." Id. ¶ 17. A message of the Church, which Mr. Arellano also taught, was for parishioners "to put complete trust in the religious leaders and belief that they had divine power and authority over the souls of their parishioners." Id. ¶ 18.

Sue and Sam Doe had attended the Church for decades and "were very active in its ministry." Id. ¶ 21. They "trusted the Church and its leaders to be spiritual and religious authority in their lives and in Jane's life." Id. ¶ 22. The Does had also been family friends with the Arellanos for decades, such that Jane "was familiar with" Mr. Arellano "for most of her life." Id. ¶ 20. However, "[b]eing half Arellano's age," Jane Doe "only became personally familiar with him when she began to participate in Church related activities as a pre-teen." Id. ¶ 23.

In May 2017, when Jane Doe was 15 years old, her grandfather passed away. Id. ¶ 27. Plaintiffs allege that, in the wake of Jane Doe's loss, "Arellano became a predator ... in a sexually explicit manner." Id. ¶¶ 25–29. Mr. Arellano "began to befriend, pursue, target, and groom" Jane Doe "to establish an emotional connection" and "lower her inhibitions," in order to influence Jane Doe into "engag[ing] in prohibited sexual conduct." Id. ¶ 30.

Specifically, Mr. Arellano communicated with Jane Doe on Snapchat, the photograph and messaging application. Id. ¶ 31. During the same period, Mr. Arellano was communicating with approximately fifty other women on Snapchat, "six in a sexually explicit manner." Id. ¶ 33. "In at least one instance, [Mr. Arellano] received nude photos and/or a video from a young woman who may have been underage." Id. As to Jane Doe, Mr. Arellano sent "photos of Jane's grandfather, commented on her portrait photography, sent her pictures of her favorite things, and expressed personal interest in her activities." Id. ¶ 31.

Mr. Arellano also "became flirtatious" with Jane Doe and "initiated sexually charged communications." Id. ¶ 32. He began to send Jane Doe nude photos of himself on Snapchat and asked Jane to reciprocate, though she refused. Id. ¶ 34. When Jane Doe sent photographs, Mr. Arellano would "pressure her to ‘take it off’ " and would "tell[ ] her about sexual activities that he and she should engage in." Id. ¶ 35. He also sent Jane Doe text messages, including some reading, "You are so beautiful," "Love you babe," and "I want you." Id.

In June 2017, Mr. Arellano messaged Jane Doe on Snapchat, stating that he was in El Paso, Texas, where Jane Doe resided, and that he wanted to see her. Id. ¶ 36. He arrived at Jane Doe's grandmother's house, where Jane Doe was staying, "and he and Jane left in his Aston Martin." Id. ¶ 37. Mr. Arellano drove Jane Doe around the neighborhood for around two hours, making conversation about Jane Doe's school activities and family life. Id. ¶ 41.

Mr. Arellano eventually arrived back in front of Jane Doe's grandmother's house "and then began to kiss Jane." Id. ¶ 43. Stating that they should drive away so as not to be seen, Mr. Arellano drove "a couple of blocks away" and then "continued kissing Jane and started to grope her thighs and buttocks over her clothing." Id. ¶¶ 44–45. He then returned Jane Doe to her grandmother's house "where he kissed her goodbye and left." Id. ¶ 45.

When Jane Doe turned sixteen in July 2017, Mr. Arellano was paid to assist with making a video for her birthday party. Id. ¶ 46. Mr. Arellano "continued to communicate in a sexually explicit manner" with Jane Doe on Snapchat, sending nude photographs of himself and messages about "things he wanted to do to her in a sexual manner" and requesting nude photographs from Jane Doe. Id. ¶¶ 47–48.

"One night, around midnight," Mr. Arellano messaged Jane Doe, asking if she was at her grandmother's house. Id. ¶ 50. Jane Doe said yes, and "he then sent a photo on Snapchat of the front of the house, indicating that he was present at the house." Id. They again drove around the neighborhood before parking nearby the house, where Mr. Arellano kissed and groped Jane Doe. Id. ¶ 51. On this occasion, Mr. Arellano reached under Jane Doe's clothes, kissing and leaving marks on her chest. Id. When Mr. Arellano attempted to reach under Jane Doe's pants, she refused and he stopped, "although he continued to rub her genital area outside her clothes." Id. Jane Doe realized her grandmother was calling and texting her and returned to the house. Id.

In August 2017, Jane Doe and Mr. Arellano were both in attendance at "a Church sponsored function at the Hotel Encanto in Las Cruces, New Mexico." Id. ¶ 52. Mr. Arellano "invited Jane to his hotel room and had sexual intercourse with Jane." Id. Mr. Arellano photographed himself with Jane Doe, naked, and subsequently posted it on Snapchat. Id. ¶ 55. Plaintiffs allege that the encounter "left Jane psychologically and socially scarred." Id. ¶ 56. They also allege that Mr. Arellano "has a history of attempting to commit similar acts of sexual assault" on other women. Id. ¶ 57.

Two days later, Sam Doe reported the incident to the Las Cruces Police Department and an investigation commenced. Id. ¶ 59. Sam Doe also reported the incident to the Church. Id. ¶ 61. Plaintiffs allege that state law required the Church to report the incident to local law enforcement or another government agency, but the Church failed to do so and did not otherwise investigate the claims or discipline Mr. Arellano. Id. ¶¶ 62, 67. The Church also elected not to cooperate with the police investigation. Id. ¶ 63. "In fact, the Church conspired with Arellano and his father to conceal the inappropriate conduct from Plaintiffs as well as from authorities investigating the rape and abuse." Id. ¶ 64. Sam Doe "reached out to [the Church] on several occasions regarding this matter, but was rebuffed." Id. ¶ 65.

Plaintiffs allege that there have been other instances "of sexual misconduct by members and officials of the Church," but that in some or all of those instances, "the Church attempted to silence the victims and hide the truth." Id. ¶¶ 68–69.

Following these events, Jane Doe, Sue Doe, and Sam Doe allege that they have experienced severe emotional distress and mental anguish, as well as monetary damages from medical care and counseling services. Id. ¶¶ 75–79.

On February 25, 2019, Mr. Arellano pled guilty to federal charges of "traveling to meet a minor for purpose of engaging in illicit sexual conduct, a violation of 18 U.S.C. § 2423(b)." Id. ¶ 70. He was sentenced to a term of imprisonment of seventy-one months, a supervised release term of fifteen years, and a sex offender registration term of fifteen years. Id. Mr. Arellano is presently incarcerated in a federal prison in Texas. Id. ¶ 3.

On June 26, 2019, Plaintiffs filed suit in the 171st District Court for El Paso County, Texas. Notice of Removal Ex. 2, ECF No. 1-2. Defendants removed to this Court on August 28, 2019. Notice of Removal, ECF No. 1. The Church filed the instant Motion on November 12, 2019. See Mot. Plaintiffs filed their Response on December 6, 2019, see Resp., and the Church filed a Reply on December 13, 2019, see Def. Apostolic Assembly's Reply to Pl.'s Resp. in Opp'n to Def.'s Rule 12(b)(6) Mot. to Dismiss ("Reply"), ECF No. 17.

II. DISCUSSION

A. Standard

A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint on the basis that it fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the court must accept well-pleaded facts as true and view them in a light most favorable to the plaintiff. Calhoun v. Hargrove , 312 F.3d 730, 733 (5th Cir. 2002) ; Collins v. Morgan Stanley Dean Witter , 224 F.3d 496, 498 (5th Cir. 2000). Though a complaint need not contain "detailed" factual allegations, a plaintiff's complaint must allege sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks omitted) (quoting Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ); Colony Ins. Co. v. Peachtree Constr., Ltd. , 647 F.3d 248, 252 (5th Cir. 2011). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

"[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ; Colony Ins. Co. , 647 F.3d at 252. Ultimately, the "[f]actual allegations [in the complaint] must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal citation omitted). Nevertheless, "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’ " Id. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes , 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ).

B. Analysis

Plaintiffs assert claims of negligence, negligence per se, gross negligence, breach of fiduciary duties, and prima facie tort against the Church. Compl. ¶¶ 81-127. The Church moves to dismiss each of Plaintiffs' claims under Rule 12(b)(6). See Mot. ¶¶ 9-38. The Church argues that Mr. Arellano's conduct was unforeseeable, and therefore beyond the scope of any alleged duty owed by the Church to Plaintiffs. Id. ¶¶ 15-18, 21-23, 26. And even if the Church's alleged duties covered Mr. Arellano's conduct, the Church argues that Plaintiffs' negligence-based claims fail for insufficient allegations as to causation. Id. ¶ 19. The Church also argues that Plaintiffs' negligence per se, gross negligence, breach of fiduciary duties, and prima facie tort claims fail as a matter of Texas law. Id. ¶¶ 21-36. Finally, the Church argues that Plaintiffs Sue Doe and Sam Doe may not proceed with their individual claims against the Church. Mot. ¶¶ 37-38; Reply ¶ 21. The Court considers each claim in turn.

1. The negligence claims

The Church argues that Plaintiffs impermissibly seek to hold them vicariously liable for Mr. Arellano's "intentional criminal acts." Mot. ¶¶ 9-14. The Church argues that this theory fails because Plaintiffs' allegations do not establish that Mr. Arellano's abuse occurred in the course and scope of his employment. Id. ¶ 14. The Church also contends that Plaintiffs' direct negligence theories are insufficiently pleaded. Id. ¶¶ 15-20. It argues that Plaintiffs' allegations do not satisfy the duty element because the harms at issue were unforeseeable, and, even if duty is established, Plaintiffs' damages were not caused by any breach of that duty by the Church. Id.

Plaintiffs respond that they pleaded facts sufficient to impute Mr. Arellano's tortious conduct to his employer, the Church, under respondeat superior and agency principles. Resp. ¶¶ 17–25. Further, Plaintiffs argue, their allegations are sufficient to support their claim that the Church knew or should have known of the risks of harm posed by Mr. Arellano, giving rise to a direct duty. Id. ¶¶ 26–31. Plaintiffs conclude that the Church's breach of that duty caused their injuries. Id.

As a general rule, "there is no duty to control the conduct of third persons." Greater Hous. Transp. Co. v. Phillips , 801 S.W.2d 523, 525 (Tex. 1990). But, "[t]his 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.... includ[ing] the relationship between employer and employee." Id. Under the special relationship exception for employers, there are two theories that may impose a duty: vicarious liability on a respondeat superior theory and direct liability on a negligent hiring and supervision theory. See Doe v. Boys Clubs of Greater Dall., Inc. (Boys Clubs I ), 868 S.W.2d 942, 950 (Tex. App. 1994). Here, the Church does not dispute that Plaintiffs have stated tort claims against Mr. Arellano. See Mot. And, the Church concedes for the purposes of its Motion that Mr. Arellano was its employee. Mot. ¶ 11. Accordingly, the Court first looks to whether Plaintiffs sufficiently stated a claim for vicarious liability and then for direct liability.

a. The Church's vicarious liability

Under the doctrine of respondeat superior , an employer is vicariously liable for the torts of its employee only when the employee is acting within the course and scope of employment. Minyard Food Stores, Inc. v. Goodman , 80 S.W.3d 573, 576 (Tex. 2002). An employee's conduct meets this standard when it (1) "falls within the scope of the employee's general authority" and was (2) committed "in furtherance of the employer's business" (3) "for the accomplishment of the object for which the employee was hired." Id. at 577. By contrast, "if an employee deviates from the performance of his duties for his own purposes, the employer is not responsible for what occurs during that deviation." Id. ; see also Fink v. Anderson , 477 S.W.3d 460, 467 (Tex. App. 2015) ("[C]onduct that is better viewed as a deviation from an assigned task instead of an escalation beyond what was authorized is not within the employee's scope of employment.").

This standard often precludes vicarious liability for an employee's intentional torts "because such acts are not ordinarily within the course and scope of an employee's authority or employment." Wrenn v. G.A.T.X. Logistics, Inc. , 73 S.W.3d 489, 494 (Tex. App. 2002). However, intentional torts may still meet the standard "when the act, although not specifically authorized by the employer, is closely connected with the servant's authorized duties." GTE Sw., Inc. v. Bruce , 998 S.W.2d 605, 618 (Tex. 1999). Tortious acts meet this "closely connected" standard when they are "committed in the accomplishment of a duty entrusted to the employee, rather than because of personal animosity." Id. ; see also Baker Hotel of Dall., Inc. v. Rogers , 157 S.W.2d 940, 942–43 (Tex. App. 1941) (holding that employer could be liable for employee's assault, even if "unnecessary, ill-advised, and wanton," because employer "set in motion the agency that resulted in the wrong" and the assault "grew out of the exercise of an authority that was conferred").

The prototypical example of an intentional tort committed within the scope of employment is a nightclub bouncer's assault or battery against an attendant. See, e.g. , Doe v. Geo Grp., Inc. , No. SA-16-CV-173-XR, 2017 WL 835209, at *2 (W.D. Tex. Mar. 2, 2017). However, tortious actions can be within the scope of employment even outside the context of physical force. For example, in Bruce , an employer was found vicariously liable for the "constant humiliating and abusive behavior" of one of its corporate managers. 998 S.W.2d at 608, 618. His actions, "although inappropriate, involved conduct within the scope of his position as the employees' supervisor." Id. at 618.

Ultimately, then, an employer will be held liable for its employee's intentional torts that "stem[ ] directly from the employee's exercise (however inappropriate or excessive) of a delegated right or duty." ANA, Inc. v. Lowry , 31 S.W.3d 765, 770 (Tex. App. 2000). The scope-of-employment determination is based on the employee's subjective understanding of the job's duties. See Bodin v. Vagshenian , 462 F.3d 481, 486 n.4 (5th Cir. 2006) ("It is the state of the servant's mind which is material.... Conduct is within the scope of employment only if the servant is actuated to some extent by an intent to serve his master.") (quoting Restatement (Second) Agency § 235 & cmt. a (Am. Law. Inst. 1958)). And, crucially, the determination is "a question of fact, not law." Id. at 485 (citing Arbelaez v. Just Brakes Corp. , 149 S.W.3d 717, 720 (Tex. App. 2004) ; Hous. Transit Co. v. Felder , 146 Tex. 428, 208 S.W.2d 880, 882 (1948) ).

Based on these principles, the Church argues Mr. Arellano's sexual abuse of Jane Doe was not within the scope of his employment, and therefore the Church cannot be vicariously liable. The Church points to cases such as Tichenor v. Roman Catholic Church of Archdiocese of New Orleans , 32 F.3d 953 (5th Cir. 1994), Boys Clubs I , 868 S.W.2d 942, and Doe v. Catholic Society of Religious & Literary Education , No. H-09-1059, 2010 WL 345926 (S.D. Tex. Jan. 22, 2010). Mot. ¶ 13. In Tichenor , concerning a priest's sexual abuse of young boys, the Fifth Circuit observed that "[i]t would be hard to imagine a more difficult argument than that [a priest's] illicit sexual pursuits were somehow related to his duties as a priest or that they in any way furthered the interests of [his church]." 32 F.3d at 960. Likewise, in Boys Clubs I , regarding a volunteer's sexual abuse of a club organization's participants, the court noted that "[the volunteer's] acts were clearly not within the course and scope of his employment," without further analysis. 868 S.W.2d at 950. And in Catholic Society , the district court cited Tichenor and concluded that "Texas law requires the same result here." Catholic Soc'y , 2010 WL 345926, at *8. Based on these cases, the Church concludes that "sexual abuse ... is not within the course and scope of an employee's or agent's authority as a matter of law." Mot. ¶ 13; see also Reply ¶ 4 ("The cases cited clearly and unequivocally hold that in factually similar cases to this one, the criminal act was not within the course and scope of employment as a matter of law .").

However, Tichenor, Boys Clubs I , and Catholic Society all concerned motions for summary judgment. See Tichenor , 32 F.3d at 958 ; Boys Clubs I , 868 S.W.2d at 948 ; Catholic Soc. , 2010 WL 345926, at *6. Because the scope of employment issue is a question of fact, those courts found sexual assaults did not give rise to vicarious liability only after considering the sufficiency of the summary judgment evidence. See, e.g. , Catholic Soc'y , 2010 WL 345926, at *8 ("The evidence ... does not raise a fact issue as to whether sexually abusing the students was related to the job of teaching or furthered the school's interests."). Indeed, the Fifth Circuit has previously rejected the argument that vicarious liability is precluded in cases of sexual assault as a "matter of law." See Bodin , 462 F.3d at 485. In Bodin , a doctor was sued in tort for performing unnecessary physical examinations of patients' genitalia. Id. at 483. In affirming the district court's finding—after a bench trial—that the doctor was not acting within the scope of his employment, the Fifth Circuit noted that "[t]he district court in this case did not hold as a matter of law that all sexual assaults by a psychiatrist are outside the scope of their employment." Id. at 485. Rather, based on the evidence, "the district court found as a matter of fact that [the doctor's] sexual assaults" did not meet the scope of employment standard. Id. at 485–86.

In contrast, at the motion to dismiss stage, the court's review is limited to whether Plaintiffs sufficiently alleged that Mr. Arellano's conduct fell within the scope of his employment. See, e.g. , Allen v. Orleans Elec. Constr., Inc. , No. 07-7259, 2008 WL 505005, at *2 (E.D. La. Feb. 21, 2008) (finding, on a motion to dismiss, that "[i]t is not evident on the face of the Complaint that [the assailant's] alleged assault on [the plaintiff] was outside the scope of his employment," such that "[a]lthough it remains to be seen whether [the plaintiff] can establish the elements of respondeat superior , his allegations are sufficient to state a claim at this juncture").

Here, Plaintiffs allege that Mr. Arellano's role as youth minister was one of "trust, responsibility, and authority as a spiritual leader of the Church over those juveniles with whom he served and supervised." Compl. ¶ 13. They allege that he used this "status and substantial power to gain the trust of his youth parishioners." Id. ¶ 16. And, they allege that "he was directed to mentor ... youth without supervision of [the Church]," and the Church "taught parishioners to put complete trust in the religious leaders" like Mr. Arellano, and to believe "that they had divine power and authority over the[ir] souls." Id. ¶ 17. In this role, Mr. Arellano's duties were "to counsel, love, and provide[ ] guidance, direction, and emotional and psychological assistance to his parishioners." Id. ¶ 15. Plaintiffs' allegations support the reasonable inference that Mr. Arellano's engagement with Jane Doe—including via text messages and Snapchat exchanges—fell within the scope his general authority, was in furtherance of the Church's mission, and sought to accomplish the object for which he was hired as youth minister. See Minyard Food Stores , 80 S.W.3d at 577.

Against the backdrop of that general authority, Plaintiffs argue that Mr. Arellano's "counseling and mentorship duties were intertwined with his sexual abuse of Jane, occurring all at the same time." Resp. ¶ 17 ("Arellano's hand was one of comfort on Jane's shoulder one moment and one of sexual abuse in the very next."). For example, after Jane Doe's grandfather passed away, Mr. Arellano allegedly messaged "photos of Jane's grandfather, commented on her portrait photography, sent her pictures of her favorite things, and expressed personal interest in her activities." Compl. ¶ 31. This conduct was within the "scope of his duties with [the Church]," carrying out the authority delegated by the Church to counsel, love, and provide emotional support to youth parishioners. See id. ¶ 9. Plaintiffs also allege, however, that this conduct was undertaken to "groom Jane" and "establish an emotional connection" to "lower her inhibitions" and ultimately "engage in prohibited sexual conduct." Id. ¶¶ 30, 86. Around the same times that Mr. Arellano was consoling Jane Doe after her loss and assisting with a video for her sixteenth birthday party, he also "became flirtatious" and "initiated sexually charged communications" with her. See id. ¶¶ 15, 32. He sent messages like, "you are so beautiful" and "love you babe," and sent naked photographs of himself while requesting the same in return. See id. ¶¶ 31, 34, 35, 46. Plaintiffs argue that "[a]ll of Arellano's actions, sexual and not, are inextricably linked to his Church imbued duties as counselor, mentor, and friend." Resp. ¶ 17.

Based on these facts, Plaintiffs have plausibly alleged that Mr. Arellano's acts, "although not specifically authorized" by the Church—which delegated his authorities "without supervision"—were "closely connected" to his authorized duties. See Bruce , 998 S.W.2d at 618. Plaintiffs' allegations support the inference that Mr. Arellano was at least partially motivated by the counseling duties delegated to him by the Church, such that the Church "set in motion the agency that resulted in the wrong" and the tortious conduct "grew out of the exercise of an authority that was conferred." See id. ; Baker Hotel of Dall. , 157 S.W.2d at 942–43. On these allegations, the ultimate factfinder could plausibly conclude that Mr. Arellano, in his own mind, was "actuated to some extent by an intent to serve his master." See Bodin , 462 F.3d at 486 n.4 (internal quotations omitted). Regardless of how "inappropriate or excessive" Mr. Arellano's tortious actions were, Plaintiffs have plausibly alleged the Church's vicarious liability because those actions "stem[med] directly from the employee's exercise ... of a delegated right or duty." See ANA, Inc. , 31 S.W.3d at 770.

Moreover, while it remains true that "[i]t is not ordinarily within the scope of a servant's authority to commit an assault on a third person," Bodin , 462 F.3d at 485 (internal quotations omitted), Plaintiffs' allegations here are not limited to the three specific occasions when Mr. Arellano sexually assaulted Jane Doe. Plaintiffs allege that the Church is "liable for the sexual abuse suffered by Jane," and that "sexual abuse" was multifaceted. Beyond the assaults, Plaintiffs' allegations of Mr. Arellano's torts plausibly cover his emotional manipulation and "grooming" of Jane Doe for sexual activity and the sexually charged messages he sent her. See, e.g. , Compl. ¶ 129 (alleging a failure to "contribute to a safe environment for children" and "[f]ailing to refrain from initiating inappropriate sexual conduct with a minor"). Even if sexually assaulting Jane Doe could be deemed a deviation from the scope of employment as a matter of law, Mr. Arellano's other tortious conduct—his emotional and psychological manipulation and "grooming" of a minor for sexual exploitation—remains plausibly alleged as an inappropriate escalation from within his delegated authority. See Fink , 477 S.W.3d at 466–67.

In this way, Plaintiffs' allegations distinguish Mr. Arellano's conduct from many other sexual assault cases—involving outright "deviations" from the scope of employment—and state a claim more like the archetypal nightclub bouncer cases—an "escalation" from within employment duties. See id. at 466–69 (collecting assault, theft, fraud, and other intentional tort cases found to be "escalations" within the scope of employment, not "deviations").

For example, in Buck v. Blum , 130 S.W.3d 285 (Tex. App. 2004), a doctor induced a patient into unwittingly touching the doctor's genitalia. Id. at 288. The court held that "[a]t the very moment [the doctor] placed his body part in her hand," he deviated from the scope of employment. Id. at 289 ("[I]t cannot be fathomed that the action was in furtherance of the employer's business."). By contrast, here, even if Mr. Arellano's sexual assaults were similarly clear moments of deviation, the rest of his tortious conduct was more closely related to his employment duties and objectives. In many of Plaintiffs' allegations, it is not possible to identify a clear "moment" of deviation from Mr. Arellano's employment role as counselor to his tortious role as predator. As the Fink court put it, regarding the intentional tort at issue in that case, "the pertinent question is not ... whether fraudulent solicitation was within Fink's scope of employment. Rather, it is whether his general conduct ... was conduct that served any purpose of his employer." 477 S.W.3d at 470 (emphasis added). "[C]o-existing motivations do not remove an employee's actions from the scope of his employment so long as the conduct also serves a purpose of the employer." Id. at 471. Plaintiffs' allegations make this case more like Fink —where the general course of conduct was motivated by service to the employer, rendering the intentional tort an escalation of delegated authority—than like Buck , where there was a clear moment of deviation. See 477 S.W.3d at 466–71 ; Buck , 130 S.W.3d at 289.

Ultimately, here at the motion to dismiss stage, the bottom line is that when an employee carries out tortious conduct, "it is for the trier of fact to determine whether the employee ceased to act as an employee and acted instead upon his own responsibility." G.T. Mgmt., Inc. v. Gonzalez , 106 S.W.3d 880, 884 (Tex. App. 2003). Plaintiffs have sufficiently alleged facts to support their claim that Mr. Arellano was acting within the scope of his employment when carrying out his pattern of sexual abuse. Therefore, the Church's Motion is denied as to Plaintiffs' claim for the Church's vicarious liability for Mr. Arellano's torts.² b. The Church's direct negligence

2 Plaintiffs also argue vicarious liability under the corporate law principles relied upon, alternatively, in Bruce . See Resp. ¶ 24 (citing Bruce , 998 S.W.2d at 618 ). In that case, the court held that, "regardless of whether [the employee] acted within the scope of his employment," the employee's "status as a vice-principal of the corporation is sufficient to impute liability to [the employer-corporation] with regard to his actions taken in the workplace." Id. A corporate vice-principal "represents the corporation in its corporate capacity, and includes persons who have authority to employ, direct, and discharge servants of the master, and those to whom a master has confided the management of the whole or a department or division of his business." Id. Plaintiffs argue that "Arellano's status as an ordained minister of the Church renders him a vice-principal since he was entrusted by the Church to manage and operate the youth division." Resp. ¶ 25. The only facts alleged in the Complaint that support this argument, however, are Mr. Arellano's title, originally as "District Youth Treasurer," and later as "Youth President," and his ordination as "youth minister." See, e.g. , Compl. ¶¶ 7, 12. The Complaint does not refer to a "youth division" within the Church's corporate structure—rather, only to Mr. Arellano's title—and generally does not allege Mr. Arellano's authority and responsibilities to hire, fire, and manage corporate affairs. Therefore, while Mr. Arellano's status as a corporate representative could provide another basis for the Church's liability for his conduct, the allegations presently in the Complaint do not sufficiently state such a claim. See Bruce , 998 S.W.2d at 618.

The employer-employee special relationship exception can also give rise to direct liability. See Wrenn , 73 S.W.3d at 495–96. "An employer who negligently hires, retains, or supervises an incompetent or unfit individual may be directly liable to a third party whose injury was proximately caused by the employee's negligent or intentional act."³ Id. at 495. Thus, even if Plaintiffs had failed to sufficiently allege that Mr. Arellano was acting within the scope of his employment, this theory could render the Church liable based on Mr. Arellano's tortious conduct. See id. at 496 ("A claim of negligent hiring, supervision, or retention is not dependent upon a finding that the employee was acting in the course and scope of his employment when the tortious act occurred."). "The cause of action is based on an employer's direct negligence instead of the employer's vicarious liability for the torts of its employees." Id.

3 The Court notes that, under Texas law, vicarious liability based on respondeat superior and direct liability based on negligent hiring theories are sometimes mutually exclusive modes of recovery. See, e.g. , Rosell v. Cent. W. Motor Stages, Inc. , 89 S.W.3d 643, 657 (Tex. App. 2002). However, this rule only applies where the plaintiff alleges ordinary negligence and the defendant-employer stipulates to its vicarious liability. See, e.g. , id. at 654 ; Williams v. McCollister , 671 F. Supp. 2d 884, 888 (S.D. Tex. 2009). Here, Plaintiffs allege gross negligence and, regardless, the Church has not stipulated to vicarious liability. Therefore, Plaintiffs may claim the Church's direct liability in addition to its vicarious liability, not solely in the alternative. See Williams , 671 F. Supp. 2d at 888.

Under this theory of negligence, the duty at issue is "a general duty on an employer to adequately hire, train, and supervise its employees." See Houser v. Smith , 968 S.W.2d 542, 544 (Tex. App. 1998). And as for retention, "[t]he basis of responsibility ... is the master's negligence in retaining in his employ an incompetent servant whom the master knows, or by the exercise of reasonable care should have known, was incompetent or unfit, thereby creating an unreasonable risk of harm to others." CoTemp, Inc. v. Hous. W. Grp. , 222 S.W.3d 487, 492 (Tex. App. 2007) (citing Houser , 968 S.W.2d at 546 ). The duty can be heightened depending on the risks posed by the context of the employment. See Dangerfield v. Ormsby , 264 S.W.3d 904, 912 (Tex. App. 2008) (stating that the employer "especially" owes the duty where "the employees are engaged in occupations that require skill or experience and that could be hazardous to the safety of others"). Specifically, Texas courts have recognized that organizations serving "the care and education of children owe a higher duty to their patrons to exercise care in the selection of their employees than would other employers." See Boys Clubs I , 868 S.W.2d at 950–51.

As for causation, while the conduct need not occur within the scope of employment, the theory "does require that a plaintiff's harm be the result of the employment." Houser , 968 S.W.2d at 544. To satisfy this proximate causation requirement, a plaintiff must sufficiently allege that the employer's actions in hiring, training, supervising, or retaining an employee were the cause-in-fact of their injuries and that their injuries were a foreseeable consequence of the employer's hiring, training, supervision, or retention of that employee. See Moore Freight Servs., Inc. v. Munoz , 545 S.W.3d 85, 98 (Tex. App. 2017). Cause-in-fact is satisfied if the negligent conduct was a substantial factor in bringing about the injury without which the harm would not have occurred. W. Invs., Inc. v. Urena , 162 S.W.3d 547, 551 (Tex. 2005). "Foreseeability ... requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission." Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 549–50 (Tex. 1985). Thus, "[b]oth of the elements of duty and proximate cause required to establish a claim of negligent retention are premised on foreseeability." CoTemp, Inc. , 222 S.W.3d at 492.

The Church argues that Plaintiffs fail to allege facts "to support their claim that [the Church] should have known or had actual awareness that Arellano posed a reasonably foreseeable risk of sexually abusing Jane." Mot. ¶¶ 17–18. And, even if Plaintiffs allege sufficient facts to establish the duty, the Church argues there are insufficient facts "to support a connection between the alleged breach of that duty and Plaintiffs' resulting damages." Id. ¶ 19. The Church contends that the alleged conduct "is too remotely related to the church's alleged failure to investigate, screen, or supervise." Reply ¶ 9–11.

Accepting the allegations as true and viewing the facts in the light most favorable to Plaintiffs, however, Plaintiffs sufficiently state a claim for negligent hiring, training, supervision, or retention. Their allegations include that Mr. Arellano "used his status and substantial power to gain the trust of his youth parishioners." Compl. ¶ 16. And that, as youth minister, Mr. Arellano was "communicating with approximately fifty (50) other women on Snapchat." Id. ¶ 33. With six of those women, the communications were "sexually explicit," "and in at least one instance, [Mr. Arellano] received nude photos and/or a video from a young woman who may have been underage." Id. After sexually assaulting Jane Doe during a Church-sponsored function at a hotel, where Mr. Arellano was chaperoning the youth unsupervised, Mr. Arellano publicly posted a naked photograph of himself and Jane Doe onto the social media platform. Id. ¶ 52–55. And, "[t]his was not the first instance of sexual misconduct by members and officials of the Church, as similar acts had occurred on several prior occasions." Id. ¶ 68. Plaintiffs argue that, by the exercise of reasonable care, the Church should have known of "Arellano's sexual proclivities, history, pattern, and practice of attempting to commit similar acts of sexual assault." Resp. ¶ 29. Therefore, Plaintiffs argue, the Church is charged with knowledge of facts "that would make the acts of Arellano reasonably foreseeable." Id.

Against this factual background, Plaintiffs allege that the Church "directed" Mr. Arellano to "mentor and chaperone trips with youth without supervision of the [Church]." Id. ¶ 17. Despite delegating him this authority, the Church "did not conduct any interview or a sufficient interview of Arellano prior to his hiring as New Mexico District Youth Treasurer or prior to his ordination as a youth minister." Id. ¶ 12. And, Plaintiffs allege that the Church failed "to contribute to a safe environment for children," "to implement appropriate restrictions and safeguards on adult contact with minor children," and "to establish appropriate policies, procedures, training, and supervision for its ... youth directors related to adult contact with minor children." Id. ¶ 92. Ultimately, then, Plaintiffs allege that the Church failed to "use reasonable care in selecting, hiring, supervising, [and] retaining[ ] ... Arellano in a position of trust, confidence and authority ... in direct contact with minor children, when it knew or should have known of his dangerous sexual propensities." Id. "Had the Church fulfilled its duty to use ordinary care in the hiring, supervising, training, or retaining of Arellano, the warning signs concerning Arellano's conduct would have been recognized and addressed, thereby preventing the harm to Plaintiffs." Resp. ¶ 31.

These allegations are sufficient to satisfy the duty, breach, and causation elements. First, as explained above, it is well-established that the Church owed a general duty to exercise reasonable care in hiring, training, supervising, and retaining its employees. See Houser , 968 S.W.2d at 544 ; see, e.g. , Verhelst v. Michael D's Rest. San Antonio, Inc. , 154 F. Supp. 2d 959, 967 (W.D. Tex. 2001) ("Texas law allows recovery for negligent hiring, training and supervision where an employer knew or should have known ... that an employee was incompetent or unfit and that his hiring or retention would thereby create an unreasonable risk of harm to others."). The duty requires "an inquiry into the qualifications of candidates for employment, the termination of employees who are not qualified or are unfit, and the adequate supervision and training of employees." Verhelst , 154 F. Supp. 2d at 967. And, this duty was heightened in the context of employees entrusted with caring for and educating children. See id. (citing Boys Clubs I , 868 S.W.2d at 951 ).

Next, Plaintiffs sufficiently allege that the Church breached these duties. Plaintiffs allege that the Church did not interview Mr. Arellano before his placement in a position caring for children, including on trips without parents and without the Church's supervision. In Boys Clubs I , where a youth club volunteer-chaperone sexually assaulted boys on a camping trip, the youth club failed "to make any inquiry of [the volunteer] or confirm that the volunteer center had done any investigation before his acceptance at the Club." 868 S.W.2d at 951. This fact alone was sufficient for the court to find "a breach of that duty as a matter of law" because "the Club owed a duty to its members to exercise reasonable care in the selection of its workers." Id. Here, too, Plaintiffs' allegation that the Church conducted no inquiry before selecting Mr. Arellano to serve as the unsupervised custodian of minors states a breach of the Church's duty to exercise ordinary care in hiring.

As to training and supervision, Plaintiffs allege the Church did not take any protective measures regarding the placement of children in the custody of Mr. Arellano. To establish breach, Plaintiffs must allege that "a reasonably prudent employer would have provided training beyond that which was given." See Dangerfield , 264 S.W.3d at 912. Plaintiffs allege that there was no training or policy regarding appropriate boundaries between the youth minister and the youth parishioners, and the Church specifically delegated him the authority to mentor and chaperone youth trips "without supervision." It is plausible that the duty required at least some degree of formal training or policy guidance regarding the Church's employees charged with the custody of children, and supervision thereof. See Boys Clubs I , 868 S.W.2d at 951 (finding that, even if youth organization is not a licensed childcare facility, that Texas' childcare regulations are instructive on the duties owed to children); see, e.g. , Tex. Hum. Res. Code Ann. §§ 42.0421, 42.042(p) (West 2020) (imposing minimum standards of training for facilities providing childcare or education); Tex. Hum. Res. Code Ann. §§ 42.0426, 42.04261 (requiring childcare providers be trained on "child abuse, neglect, and sexual molestation" and "recognition of symptoms of sexual abuse"); Tex. Hum. Res. Code Ann. § 42.0428 (requiring that childcare providers "adopt and implement a policy addressing sexual abuse and other maltreatment of children"). By alleging that no such training or supervision existed, Plaintiffs have set out a breach of this duty. See, e.g., Lozano v. Baylor Univ. , 408 F. Supp. 3d 861, 896 (W.D. Tex. 2019) (finding, at the motion to dismiss stage, that the plaintiff's allegations that coaches and administrators "owed duties to competently supervise ... and train and educate" employees, coupled with the plaintiff's allegations about the "failures of training and supervision," were sufficient).

Plaintiffs also allege the Church's breach of its duty to exercise reasonable care in retaining Mr. Arellano. Plaintiffs allege Mr. Arellano maintained extensive contacts with young women over social media, often in a sexually explicit manner. Plaintiffs allege that the Church knew or should have known about this conduct and about Mr. Arellano's "sexual propensities," as well as about prior incidents of sexual abuse within the Church. Despite this alleged knowledge, the Church retained Mr. Arellano in his unsupervised position with custody over children. The Church's duty to terminate "unfit" employees plausibly required the termination of an employee responsible for the unsupervised custody of minors who was known to be initiating sexual communications with minors. See Wrenn , 73 S.W.3d at 495 ; CoTemp, Inc. , 222 S.W.3d at 492 (citing Houser , 968 S.W.2d at 546 ). Thus, Plaintiffs' allegations are also sufficient to establish breach of the Church's duties on retention. See, e.g., Udoewa v. Plus4 Credit Union , No. H-08-3054, 2009 WL 1856055, at *7 (S.D. Tex. June 29, 2009) (finding allegations sufficient on breach of retention duty where the plaintiff alleged the employer's knowledge of an employee's harassment of others, but the employee was retained and then harassed the plaintiff).

Finally, Plaintiffs sufficiently allege that these breaches caused their injuries. The Complaint plainly states, for example, that "[t]he [Church] has a duty and responsibility to establish appropriate official policies for its employees, clergy and youth directors, including training and supervision of its personnel," and "[h]ad the [Church] fulfilled this important duty, the warning signs concerning Arellano's conduct would have been recognized and addressed, thereby preventing harm to [Plaintiffs]." Compl. ¶ 71–72; see also id. ¶ 73 ("[T]he Church failed to protect Jane, which led to Arellano sexually assaulting her."); id. ¶ 87 ("The [Church] breached these duties, causing harm to Plaintiffs in the form of mental anguish and pain and suffering for Jane and mental anguish and monetary damages for Sue and Sam Doe."); id. ¶ 94 ("The [Church's] failure to ascertain and/or apprise Plaintiffs of Arellano's sexually predatory nature ... placed Jane and her family in danger and peril."). Plaintiffs' allegations establish proximate cause. Plaintiffs allege that the Church's failure to exercise ordinary care in hiring, retaining, and training and supervising Mr. Arellano was a substantial factor in causing their injuries, such that the abuse and resulting injuries could not have occurred but for these breaches. See Urena , 162 S.W.3d at 551.

And, a person of ordinary intelligence could anticipate that the Church's breaches of its hiring, retention, and training and supervision duties for an unsupervised childcare position could result in inappropriate conduct by the adult charged with the custody of minors. See Nixon , 690 S.W.2d at 549–50. This is especially the case given that Plaintiffs allege the Church had knowledge, or constructive knowledge, of Mr. Arellano's "propensities" and similar conduct with other minors, as well as of prior incidents of sexual assault within the Church. See Bos v. Smith , 556 S.W.3d 293, 303 (Tex. 2018) ("Foreseeability usually is determined by whether the defendant is aware of prior, similar conduct .... [and] the prior conduct must be sufficiently similar to give the defendant notice of the general nature of the danger.").

The Church's objections to the sufficiency of Plaintiffs' allegations as to duty and causation come down to the foreseeability of Mr. Arellano's conduct. See Mot. ¶¶ 16-20; Reply ¶¶ 9-11. "The ‘foreseeability’ analysis is the same for both duty and proximate cause." See Mellon Mortg. Co. v. Holder , 5 S.W.3d 654, 659 (Tex. 1999). For duty, the Church argues that because there are insufficient facts showing the Church "knew or should have known of Arellano's specific risk to Jane," the Church "cannot be held liable for negligently failing to take reasonable precautions to protect her against the risk Arellano presented." Mot. ¶ 18 (citing Phillips , 801 S.W.2d at 525 ). For causation, the Church argues that Plaintiffs only alleged "that this 30-year-old man was flirting and having sexually charged communications with other women," and "that should have given the church notice that he was likely to sexually assault Jane, a minor." Reply ¶ 11. "That conduct is too remotely related to the church's alleged failure to investigate, screen, or supervise." Id. ¶ 11 (citing Doe v. Boys Clubs of Greater Dall., Inc. (Boys Clubs II ), 907 S.W.2d 472, 478 (Tex. 1995) ; McDorman ex rel. Connelly v. Texas-Cola Leasing Co. , 288 F. Supp. 2d 796, 804 (N.D. Tex. 2003) ).

The Church's arguments define the harm at issue too narrowly. "To be foreseeable, the plaintiff's injuries must be of such a general character they might have been reasonably anticipated, but the defendant need not anticipate the particular accident or injury that actually occurred." CoTemp, Inc. , 222 S.W.3d at 493–94 ; see also Mindi M. v. Flagship Hotel, Ltd. , 439 S.W.3d 551, 558 (Tex. App. 2014) (explaining that the "ordinary intelligence" test for foreseeability "requires ‘only that the general danger, not the exact sequence of events that produced the harm, be foreseeable’ ") (quoting Timberwalk Apartments, Partners, Inc. v. Cain , 972 S.W.2d 749, 756 (Tex. 1998) ). Plaintiffs allege that the Church had knowledge making it foreseeable that Mr. Arellano posed a risk of inappropriate sexual contact with the minors he was charged with caring for. This remains true even if it was not foreseeable that, for example, Mr. Arellano would sexually assault Jane Doe while chaperoning the Church's youth retreat without supervision. Thus, the Church's duty to exercise reasonable care in hiring, retention, and training and supervision covers the "general character" of Plaintiffs' injuries caused by Mr. Arellano's tortious conduct. See CoTemp, Inc. , 222 S.W.3d at 493–94. And, based on Plaintiffs' allegations, a person of ordinary intelligence could have foreseen the general danger posed by the Church's hiring and retention of Mr. Arellano and its inadequate training and supervision. See Mindi M. , 439 S.W.3d at 558.

The cases the Church cites do not counsel otherwise. In Phillips , following a jury trial, the Texas Supreme Court affirmed that no duty was owed by a cab company to the passenger of a third-party's car where a cab driver shot the passenger in a dispute after a car accident. 801 S.W.2d at 525. The court found, given that in nearly twenty years of operation only one prior assault had taken place by a cab driver with a weapon, "the injury is not foreseeable." Id. at 526.

In Boys Clubs of Greater Dallas II , the Texas Supreme Court affirmed the intermediate court's finding, at the summary judgment stage, that the plaintiffs had shown duty and breach, but not causation, where a club volunteer molested campers on a non-club-sponsored camping trip. 907 S.W.2d at 478. The court reasoned that, even if the club had investigated the volunteer prior to his hiring, his two prior DWI convictions "would not have caused the club reasonably to anticipate his subsequent sexual assault on the minor plaintiffs." Id. ("The course of events ... was so remotely related to the Boys Club's failure to investigate, screen, or supervise volunteers that no reasonable mind could anticipate the result.").

And, in McDorman , the district court granted a trucking company's summary judgment motion on a negligent hiring claim arising out of a truck driver's negligent driving. 288 F. Supp. 2d at 803. Plaintiffs alleged that the employer should have known of the driver's prior convictions for marijuana possession and domestic violence and his citations for traffic violations. Id. at 805. The court found that the nexus between the harm that occurred and any hiring policy that would have prevented the driver's hiring was "too tenuous." Id. ("Under these circumstances ... it was not foreseeable that someone with [the driver's] background would be involved in this accident.").

Plaintiffs' allegations here distinguish each of these cases. In Phillips , which was not a negligent hiring, training, or supervision case, the accident at issue was simply too abnormal to be anticipated. Here, however, Plaintiffs allege the Church's knowledge of Mr. Arellano's similar conduct and prior similar incidents within the Church, bringing the risk of the harms suffered by Plaintiffs into the realm of foreseeability. See Bos , 556 S.W.3d at 303. Indeed, the risk of child sexual abuse when children are placed into the custody of adults without parental supervision is foreseeable enough that Texas requires childcare facilities to train employees on and adopt policies regarding its prevention. See, e.g. , Tex. Hum. Res. Code Ann. §§ 42.0426, 42.04261, 42.0428. Similarly, in Boys Clubs II and McDorman , the issue was that—in addition to simple cause-in-fact deficiencies—the knowledge the plaintiffs charged the employers with did not make the harms at issue foreseeable. See Boys Clubs II , 907 S.W.2d at 478 ; McDorman , 288 F. Supp. 2d at 803. In this case, Plaintiffs allege the Church knew Mr. Arellano had engaged in sexually charged Snapchat exchanges with other minors just like those he engaged in with Jane Doe. This is sufficient to render his same conduct, as to Jane Doe, foreseeable. And, Mr. Arellano's ultimate physical assaults of Jane Doe—arising out his sexual communications with her—were within the general danger posed by the conduct that the Church allegedly had knowledge of. See Mindi M. , 439 S.W.3d at 558.

Indeed, on foreseeability, Plaintiffs' allegations make this case more like Read v. Scott Fetzer Co. , 990 S.W.2d 732 (Tex. 1998), where a vacuum company was held liable for its traveling salesman's sexual assault of a customer in her home. Id. The employer was charged with constructive knowledge that the salesman's prior employment had resulted in complaints of "sexually inappropriate behavior" and that he had previously been arrested for "indecency with a child." Id. at 734. The court found foreseeability satisfied because "[s]ending a sexual predator into a home poses a foreseeable risk of harm to those in the home." Id. at 737. Because vacuum salespeople were "required to do in-house demonstration," a person of ordinary intelligence "should anticipate that an unsuitable dealer would pose a risk of harm." Id. Here, too, sending an adult who is engaged in communicating sexually with minors into unsupervised custody over minors "poses a foreseeable risk of harm" to those minors. See id. And, because the youth minister here was delegated unsupervised authority to lead trips with minors, a person of ordinary intelligence should anticipate that an unsuitable minister would pose a risk of harm. See id.

The allegations in this case render Plaintiffs' injuries foreseeable for purposes of duty and proximate causation. Therefore, Plaintiffs' allegations are sufficient to state a claim for negligent hiring, training, supervision, or retention.

2. Negligence per se

The Church moves to dismiss Plaintiffs' negligence per se claim, which is based on the Church allegedly violating section 261.101 of the Texas Family Code. Mot. ¶¶ 21–23. That law requires persons with knowledge of child abuse to report that abuse to law enforcement or other government agencies. See Tex. Fam. Code Ann. §§ 261.101, 261.103 (West 2020). The Church argues that a negligence per se cause of action based on section 261.101 is foreclosed as a matter of law by Perry v. S.N. , 973 S.W.2d 301 (Tex. 1998). Mot. ¶¶ 21–23. And, even if the cause of action were not foreclosed, the Church argues that any violation of the statute did not proximately cause Plaintiffs' injuries. Reply ¶ 13.

In Perry , the plaintiffs were parents of minor children who were sexually abused while in the custody of a daycare facility. 973 S.W.2d at 302. In addition to the abusers themselves, the plaintiffs sued three friends of the abusers who allegedly had first-hand knowledge of the abuse but failed to report to the proper authorities as required by section 261.101. Id. at 302–03. The Texas Supreme Court considered only whether section 261.101 gave the plaintiffs a valid cause of action for negligence per se against the friend-defendants. Id. at 303–05. The Perry court was concerned that use of section 261.101 as a cause of action would create a new duty based on statute alone, whereas "the defendant in most negligence per se cases already owes the plaintiff a pre-existing common law duty ... so that the statute's role is merely to define more precisely what conduct breaches that duty." Id. at 306 ("[R]ecognizing a new, purely statutory duty can have an extreme effect upon the common law of negligence.") (internal quotations omitted). After considering a variety of factors, the court held that it is not appropriate to adopt the reporting requirement in section 261.101 "as establishing a duty and standard of conduct in tort." Id. at 309.

Plaintiffs argue that their case is distinguishable from Perry . Resp. ¶¶ 33–35. "Plaintiffs' negligence per se cause of action is against the Church, not a third party having a mere indirect relationship to the abuse caused by Arellano." Id. ¶ 35. Unlike the defendants in Perry , then, the Church already owed pre-existing duties to Plaintiffs, such as the duty to exercise reasonable care in hiring and supervision. Id. Thus, the Perry court's concern about creating a new, statute-based duty, independent of any pre-existing common law duty, is not implicated on these facts, Plaintiffs argue. Id. "[I]mposing th[e] duty in this case is absolutely appropriate as it would be limited to a party that already owed Plaintiffs preexisting common law duties and the Statute's role would be ‘merely to define more precisely the type of conduct that breaches such duty.’ " Id. (quoting Perry , 973 S.W.2d at 302 ).

The Perry court specifically foreclosed Plaintiffs' argument. At the beginning of its analysis, the Perry court qualified that its holding applied to the statute in any factual context:

[W]e emphasize that we must look beyond the facts of this particular case to consider the full reach of the statute. We do not decide today whether a statute criminalizing only the type of egregious behavior with which these defendants are charged—the failure of eyewitnesses to report the sexual molestation of preschool children—would be an appropriate basis for a tort action. That is not the statute the Legislature passed. Rather, the issue before us is whether it is appropriate to impose tort liability on any and every person who "has cause to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report." Tex. Fam. Code § 261.109(a).

973 S.W.2d at 305 (quoting the portion of the statute that makes a violation of section 261.101 a criminal offense).

Thus, the Perry court rejected Plaintiffs' argument that the case's holding is limited to situations involving third-party witnesses who do not otherwise owe common-law duties to the plaintiffs in question. See id. Rather, the Perry court's concern was about the statute itself being used as a duty and standard, in any context: "[A] decision to impose negligence per se could not be limited to cases charging serious misconduct like the one at bar, but rather would impose immense potential liability under an ill-defined standard on a broad class of individuals whose relationship to the abuse was extremely indirect." Id. at 309. Therefore, the Perry court held that section 261.101 cannot give rise to a negligence per se cause of action. Id. Accordingly, Plaintiff's negligence per se claim must fail.

3. Gross negligence

The Church next moves to dismiss Plaintiffs' claim for gross negligence. Although gross negligence is not itself an independent cause of action, see Prati v. New Prime, Inc. , 949 S.W.2d 552, 557 (Tex. App. 1997), Plaintiffs enumerate gross negligence separately to seek exemplary damages. See Compl. ¶¶ 105–10; see also Newman v. Tropical Visions, Inc. , 891 S.W.2d 713, 721 (Tex. App. 1994) ("[T]he determination of gross negligence is relevant only to an assessment of exemplary damages."). Plaintiffs' Complaint and Response allege gross negligence in the context of their negligence per se claim and negligent hiring, training, supervision, and retention claim. See Compl. ¶ 108; Resp. ¶¶ 36–37. Because the Church's Motion is granted as to the negligence per se claim, the Court considers only whether Plaintiffs adequately pleaded gross negligence as to the direct negligence claim.

Under Texas law, gross negligence consists of an objective element and a subjective element. U-Haul Int'l, Inc. v. Waldrip , 380 S.W.3d 118, 137 (Tex. 2012). First, a plaintiff must prove by clear and convincing evidence that, "when viewed objectively from the defendant's standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others." Id. And, second, that "the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others." Id. ; see also Tex. Civ. Prac. & Rem. Code § 41.001(11) (West 2020). In other words, Plaintiffs must establish that the Church's hiring, training, supervision, and retention of Mr. Arellano posed an extreme degree of risk, and that the Church was actually aware of that risk but nevertheless proceeded with hiring or retaining him. See U-Haul Int'l , 380 S.W.3d at 137 ; see also Mobil Oil Corp. v. Ellender , 968 S.W.2d 917, 921 (Tex. 1998) ("A corporation is liable for punitive damages ... if it is grossly negligent in hiring an unfit agent.").

Simple negligence alone is not enough to satisfy either the objective or subjective elements of gross negligence. Ellender , 968 S.W.2d at 921. On the objective prong, "extreme risk" is not "a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff." Id. As for the subjective prong, "actual awareness means that the defendant knew about the peril, but its acts or omissions demonstrated that it did not care." Id. While the plaintiff must eventually prove both elements by clear and convincing evidence, "[o]f course, when addressing a motion to dismiss, the Court merely examines the operative pleading for sufficient factual allegations to support the challenged claim." See O'Malley v. Brown Bros. Harriman & Co. , No. SA-19-CV-0010-JKP, 2020 WL 1033658, at *7 (W.D. Tex. Mar. 3, 2020).

Plaintiffs' allegations support a claim for exemplary damages based on gross negligence. On the objective prong, "[e]xtreme risk is a function of both the magnitude and the probability of the anticipated injury." Dalworth Trucking Co. v. Bulen , 924 S.W.2d 728, 732 (Tex. App. 1996). Here, "the seriousness of the injury is indisputably extreme." See Scott Fetzer Co. v. Read , 945 S.W.2d 854, 870 (Tex. App. 1997) (referring to a sexual assault in a gross negligence analysis). Showing the likelihood of the injury is more difficult. See id. ("[E]ven though it was reasonably foreseeable that such an assault could occur, nonetheless the record contains no evidence that it was likely to occur."). However, as a matter of pleading, Plaintiffs adequately allege the objective likelihood of the serious injury based on the Church's negligence. Plaintiffs allege that the Church had prior knowledge of sexual assaults within its institution, and rather than try to prevent such incidents in the future, "attempted to silence the victims and hide the truth." Compl. ¶¶ 68-69. Plaintiffs also allege that Mr. Arellano was communicating sexually with six other minors, exchanging naked photographs with at least one, and had a history of attempting to commit acts of sexual assault. See id. ¶¶ 33, 57. These allegations plausibly support the claim that hiring and retaining Mr. Arellano—without an interview and without any training or supervision—in a position of trust and authority over minors created an outright likelihood of inappropriate sexual contact with those minors, not just a remote possibility of that harm. Therefore, given the extreme degree of the harm and the plausible likelihood of injury, Plaintiffs sufficiently allege the objective element of gross negligence. See U-Haul Int'l , 380 S.W.3d at 137 ; Dalworth Trucking Co. , 924 S.W.2d at 732.

Plaintiffs' allegations also support the claim that the Church was subjectively aware of the objective risk. Plaintiffs allege the Church's knowledge of prior sexual misconduct within its institution, which the Church allegedly suppressed. Compl. ¶¶ 68–69. Plaintiffs also allege the Church's knowledge of Mr. Arellano's history of attempted sexual assaults against minors and his ongoing sexual communications with minors in his capacity as youth minister. See id. ¶¶ 33, 57, 92. Thus, Plaintiffs have alleged that the Church "knew about the peril." See Ellender , 968 S.W.2d at 921. Despite this knowledge, Plaintiffs allege that the Church proceeded with hiring and retaining Mr. Arellano as youth minister. The Church allegedly did so with no training or policies on appropriate relations between adults and youth, and with no supervision when Mr. Arellano was entrusted to chaperone youth trips. These facts are sufficient to support the claim that—despite its subjective awareness of the objective risks posed by its hiring, training and supervision, and retention of Mr. Arellano—the Church's "acts or omissions demonstrated that it did not care." Id. Plaintiffs argue the Church's indifference to the peril is further demonstrated by its response to the allegations at the time, including "failing to report the child abuse, refusing to cooperate with the police, and conspiring with Arellano to conceal the inappropriate conduct." Resp. ¶ 37 (citing Compl. ¶¶ 59-64). Indeed, "[w]hat lifts ordinary negligence into gross negligence is the mental attitude of the defendant," and Plaintiffs' allegations plausibly support that the Church acted with indifference about the objective likelihood of extreme harm. See Burk Royalty Co. v. Walls , 616 S.W.2d 911, 922 (Tex. 1981).

Altogether, Plaintiffs allege facts sufficient to establish an objective risk of extreme harm from the Church's negligent hiring, training, supervision, and retention of Mr. Arellano. And, the allegations establish that the Church knowingly proceeded with its negligent conduct in the face of that harm. Therefore, at the motion to dismiss stage, Plaintiffs allegations satisfy the objective and subjective elements of their claim for exemplary damages for gross negligence. See U-Haul Int'l , 380 S.W.3d at 137 ; Dalworth Trucking Co. , 924 S.W.2d at 732 ; Ellender , 968 S.W.2d at 921.

4. Breach of fiduciary duties

The Church moves to dismiss Plaintiffs' claim for breach of fiduciary duties on First Amendment grounds. Plaintiffs argue that their allegations do not implicate the First Amendment and that they sufficiently alleged a breach of fiduciary duties claim against the Church.

a. Existence of a fiduciary relationship

"Generally, the elements of a claim for breach of fiduciary duty are (1) the existence of a duty, (2) breach of the duty, (3) causation, and (4) damages." First United Pentecostal Church of Beaumont v. Parker , 514 S.W.3d 214, 220 (Tex. 2017). Fiduciary duties arise out of fiduciary relationships, which can be formal or informal. See Gregan v. Kelly , 355 S.W.3d 223, 227 (Tex. App. 2011). "In certain formal relationships, such as an attorney-client or trustee relationship, a fiduciary duty arises as a matter of law." Meyer v. Cathey , 167 S.W.3d 327, 330 (Tex. 2005). By contrast, "[a]n informal relationship may give rise to a fiduciary duty where one person trusts in and relies on another, whether the relation is a moral, social, domestic, or purely personal one," also called a "confidential relationship." See Schlumberger Tech. Corp. v. Swanson , 959 S.W.2d 171, 176–77 (Tex. 1997). "But not every relationship involving a high degree of trust and confidence rises to the stature of a fiduciary relationship," and "we do not create such a relationship lightly." Id. To determine whether Plaintiffs have a claim for breach against the Church, the Court must first determine whether Plaintiffs sufficiently alleged facts establishing that a confidential relationship existed between the parties. See id. ; Meyer , 167 S.W.3d at 330 ; Gregan , 355 S.W.3d at 227.

Whether a confidential relationship exists "is ordinarily a question of fact," though it can be a question of law "when the issue is one of no evidence." Imperial Premium Fin., Inc. v. Khoury , 129 F.3d 347, 353 (5th Cir. 1997) (quoting Crim Truck & Tractor Co. v. Navistar Int'l Transp. Corp. , 823 S.W.2d 591, 594 (Tex. 1992) ). Courts "review a variety of facts" to determine whether a given relationship amounts to a "confidential" one. See Gregan , 355 S.W.3d at 228. Relevant factors include whether the plaintiff "justifiably placed special confidence in the other party to act in his best interest"; whether the plaintiff actually relied on the other party "for moral, financial, or personal support or guidance"; or whether the plaintiff is "accustomed to be[ing] guided by the judgment or advice of the other." Id. (internal quotations omitted).

Plaintiffs allege that a confidential relationship existed between the Does and the Church. See Resp. ¶¶ 40–43. Plaintiffs argue that they "have pleaded sufficient facts to demonstrate that the Church fostered a relationship with Plaintiffs based on trust, and influenced Plaintiffs to put complete faith in the Church's leaders, not only concerning religious matters, but also in secular counseling, guidance, and emotional assistance in day-to-day life." Id. ¶ 42. And, because this issue is ordinarily a question of fact, Plaintiffs argue that "the nature of the relationship between the Church and Jane" should be "determined at trial—not in this Motion to Dismiss." Id. ¶ 41. Finally, Plaintiffs conclude that the Church's First Amendment objections are misplaced because Plaintiffs "are not seeking this Court to examine or interpret religious documents of the Church to create any type of duty separate from the duties owed to Plaintiffs as discussed above." Id. ¶ 42.

The First Amendment's limitations in this context go beyond a mere restriction on interpreting religious documents, however. The Court can only reach the issue of whether Plaintiffs' Complaint sufficiently pleads the existence of a confidential relationship after finding that the First Amendment does not strip the Court of its jurisdiction to do so. See El Pescador Church, Inc. v. Ferrero , 594 S.W.3d 645, 654-55 (Tex. App. 2019).

b. Ecclesiastical abstention doctrine

The Free Exercise Clause "severely circumscribes the role that civil courts may play" in adjudicating matters involving the theology or internal affairs of religious institutions. See id. at 654 (internal quotation marks omitted) (citing Presbyterian Church v. Hull Church , 393 U.S. 440, 449, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969) ; Serbian E. Orthodox Diocese for U.S. & Canada v. Milivojevich , 426 U.S. 696, 713-14, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976) ). That is because, "[a]side from interfering with an individual's observance or practice of a particular faith, government action can burden the free exercise of religion by encroaching on a church's ability to manage its internal affairs." Id. Texas courts "follow this same limitation ... under a doctrine referred to as ecclesiastical abstention." Id. And, ecclesiastical abstention "is more than just a limitation on the court's actions, it is a limitation on its subject matter jurisdiction." Id. "Although wrongs may exist in the ecclesiastical setting, and although the administration of the church may be inadequate to provide a remedy, the preservation of the free exercise of religion is deemed so important a principle it overshadows the inequities that may result from its liberal application." Williams , 26 S.W.3d at 59.

But ecclesiastical abstention does not simply bar all suits where a religious institution is a party. Id. ("[C]hurches and their congregations ‘exist and function within the civil community,’ and therefore they are ‘amenable to rules governing property rights, torts, and criminal conduct.’ ") (quoting Williams v. Gleason , 26 S.W.3d 54, 59 (Tex. App. 2000) ). Courts must look to the substance and effect of a plaintiff's complaint to determine whether the suit is ecclesiastical in nature. Williams , 26 S.W.3d at 59 ; see also Tran v. Fiorenza , 934 S.W.2d 740, 743 (Tex. App. 1996) ("The difficulty comes in determining whether a particular dispute is ‘ecclesiastical’ or simply a civil law controversy in which church officials happen to be involved."). Based on this standard, Courts have applied ecclesiastical abstention in cases concerning church membership, employment policies, clergy discipline, member discipline, church leadership elections, church property disputes, and defamation suits based on pastoral statements. El Pescador Church , 594 S.W.3d at 655-57 (collecting cases).

Looking to the substance and effect of Plaintiffs' Complaint here, Plaintiffs allege that the Church "is in a special fiduciary relationship with all of the Plaintiffs." Compl. ¶ 112. Plaintiffs argue the relationship is an informal, "confidential" one. Resp. ¶¶ 40–43. And, Plaintiffs point to factual allegations in the Complaint that support the existence of such a relationship—one of a high degree of trust and confidence. Id. ¶ 42. For example, that "Sue and Sam Doe had attended the Church for decades and were very active in its ministry" and that "Sue and Sam Doe trusted the Church and its leaders to be spiritual and religious authority in their lives and in Jane's life." Compl. ¶¶ 21–22. Also, that "the Church taught parishioners to put complete trust in the religious leaders and the belief that they had divine power and authority over the souls of their parishioners."⁴ Compl. ¶ 18. However, Plaintiffs cite no cases where a court has found that such a confidential relationship exists between a religious organization and its members. See Resp. ¶¶ 40–43. Instead, both parties predominantly point to cases concerning alleged confidential relationships between individual clergy and their parishioners.

4 Plaintiffs further allege that the Church breached the duties arising out of this purported fiduciary relationship by "concealing the abuse [of Jane Doe] to protect its putative reputation"; "[f]ailing to report Arellano's criminal acts to law enforcement"; "[f]ailing to provide law enforcement with information to aid its investigation"; and "[f]ailing to act with integrity of the strictest kind." Compl. ¶ 118.

For example, Texas courts have found that—under some circumstances—adjudicating the existence of confidential relationships between clergy and parishioners is barred by ecclesiastical abstention. The Church points to Hawkins v. Trinity Baptist Church , 30 S.W.3d 446 (Tex. App. 2000), where the plaintiffs, a married couple, sued their pastor after he engaged in a sexual affair with one of the plaintiffs in the course of providing them marital counseling. Id. at 448–49. On the plaintiffs' breach of fiduciary duties claim, the court held that, "[g]iven our concerns toward treading upon the Free Exercise Clause ... we decline to determine that the pastor-member relationship in this case established a fiduciary duty." Id. at 452–53 ; see also id. at 453 (explaining that "[i]f the court were to recognize such a breach of fiduciary duty, it would be required to define a reasonable duty standard," which is the same reason that Texas courts have declined to recognize clergy malpractice claims) (quoting Dausch v. Rykse , 52 F.3d 1425, 1438 (7th Cir. 1994) (Ripple, J., concurring in part and dissenting in part)). Subsequent courts have cited Hawkins as establishing a generally applicable rule of law in such cases. See, e.g. , Doe I v. Roman Catholic Diocese of Galveston-Houston , No. H-05-1047, 2006 WL 8446968, at *4 (S.D. Tex. Mar. 27, 2006) ("Texas does not recognize a fiduciary relationship between a clergy member and a parishioner.") (citing Hawkins , 30 S.W.3d at 452-53 ). However, the Fifth Circuit distinguished Hawkins in Sanders v. Casa View Baptist Church , 134 F.3d 331 (5th Cir. 1998). In Sanders , the plaintiffs also sued a minister for sexual misconduct arising out of marital counseling. 134 F.3d at 333–34. The Fifth Circuit noted that "[t]he First Amendment does not categorically insulate religious relationships from judicial scrutiny, for to do so would necessarily extend constitutional protection to the secular components of these relationships." Id. at 335–36. Based on that principle, the Sanders court held that the plaintiffs' claims against their minister, acting as a marital counselor, "are not derived from religious doctrine." Id. at 336. That was because the minister "held himself out as possessing the education and experience of a professional marriage counselor" and "the activities complained of by the plaintiffs were not part of his religious beliefs." Id. at 336–37. Thus, under Texas law, the clergy-member relationship generally is not a fiduciary one, but a clergyperson's relationship with a member in their secular capacity can constitute a "confidential relationship" triggering fiduciary obligations. See Hawkins , 30 S.W.3d at 452–53 ; Sanders , 134 F.3d at 333–37.

Plaintiffs essentially argue the Does' relationship with the Church is more like the relationship from Sanders than the relationship from Hawkins .⁵ Both lines of case law are not directly on-point here, however, given their emphasis on the nature of clergy-parishioner relations, which are distinct from the relationship between a religious institution and its congregant. The latter form of relationship was addressed by an appeals court in Texas in Turner v. Church of Jesus Christ of Latter-Day Saints , 18 S.W.3d 877 (Tex. App. 2000). In that case, a missionary sued his church for breach of fiduciary duties based on the church's handling of his medical care. Turner , 18 S.W.3d at 882–85. To show that a confidential relationship existed, the plaintiff pointed to facts such as his life-long church membership and participation in church activities, his "moral standing in the church" and allegiance to "its leaders and teachings," and the church's support of his mission trip, including its required standards of conduct and "control over his lifestyle." Id. at 897. The court found that "these facts involve either religious doctrine and practices or the internal policies of the Church." Id. It concluded that hearing such claims "would require the courts to interpret religious doctrine, practices, and the internal policies of the Church." Id. Therefore, the Turner court held that "an examination of the relationship between the Church and its missionaries would necessarily involve excessive entanglement by the government with the Church in violation of the Establishment Clause," such that the plaintiff's fiduciary claim was "barred by the First Amendment." Id. at 897–98 ; see also Lacy v. Bassett , 132 S.W.3d 119, 122 (Tex. App. 2004) ("[A]t least one Texas appellate court has found that such a [fiduciary] claim necessitates the court's involvement with religious doctrine, requiring application of the ecclesiastical doctrine.") (citing Turner , 18 S.W.3d at 897–98 ).

5 Plaintiffs quote dicta from C.L. Westbrook, Jr. v. Penley , 231 S.W.3d 389 (Tex. 2007) to argue that, because the Church "does not contend that its acts or omissions relating to the abusive conduct were ‘rooted in the church's religious beliefs and practices,’ " the Church "cannot ‘hide behind First Amendment protections.’ " Resp. ¶ 42 n.2 (quoting Penley , 231 S.W.3d at 404 ). That language comes from a portion of the Penley court's opinion that summarizes the Fifth Circuit's reasoning in Sanders . See Penley , 231 S.W.3d at 403–04. While the Penley court agreed with the quoted reasoning "[i]n principle," the court held—regarding the plaintiff's claims, including fiduciary breach, arising out of a public-shaming letter circulated about the plaintiff—that "imposition of tort liability in this case would impinge upon matters of church governance in violation of the First Amendment." Id. at 403–05. Thus, Plaintiffs' argument effectively relies on Sanders , while Penley counsels in favor of the application of ecclesiastical abstention.

The Court finds Turner to be the most relevant and persuasive authority as to Plaintiffs' fiduciary breach claim against the Church. The facts in Plaintiffs' Complaint characterizing the Does' relationship with the Church are more like the facts at issue in Turner than those from the clergy-member cases.⁶ Plaintiffs point to their decades-long membership with the Church, that they "were very active in its ministry," and that they "trusted the Church and its leaders to be spiritual and religious authority in their lives." Compl. ¶¶ 21–22. And, that "the Church taught parishioners to put complete trust in the religious leaders and the belief that they had divine power and authority over the souls of their parishioners." Compl. ¶ 18; Resp. ¶ 42. These facts are similar to those from Turner —the length of church membership, the extent of involvement, and the compliance with conduct standards—that were found to involve and require interpretation of "religious doctrine and practices or the internal policies of the Church." See 18 S.W.3d at 897–98. Indeed, by invoking what the Church "taught" its members to show that a confidential relationship existed, Plaintiffs invite the Court to impose fiduciary obligations based on "matters of faith or ecclesiastical doctrine." See id. Thus, based on the allegations in the Complaint, this Court agrees with the Turner court that applying the confidential relationship analysis here "would necessarily involve excessive entanglement by the government with the Church." See id. at 897.

6 Indeed, Plaintiffs separately claim a breach of fiduciary duties by Mr. Arellano, individually. Some of Plaintiffs' arguments, and reliance on the clergy-member relationship cases like Sanders , appear to conflate their claim against Mr. Arellano with their claim against the Church. For example, Plaintiffs state that "[a]n analysis of whether a church pastor can sexually abuse underage girls does not implicate ‘church dispute [sic] over church policy and church administration’ and does not implicate the ecclesiastical privilege of the Church." Resp. ¶ 42 n.3. But only Mr. Arellano allegedly breached a fiduciary duty by committing sexual assault. See Compl. ¶¶ 141–51. By contrast, Plaintiffs allege the Church breached its purported fiduciary duties by concealing the abuse and failing to report to, and cooperate with, law enforcement. See Compl. ¶ 118. Plaintiffs may be right that determining whether Mr. Arellano himself breached fiduciary duties would not be barred by ecclesiastical abstention. See Sanders , 134 F.3d at 333–37. But the same cases and arguments that support that conclusion do not apply equally to their claim against the Church itself. See Turner , 18 S.W.3d at 897–98.

Accordingly, the Court is barred from considering the claim under Texas ecclesiastical abstention doctrine.⁷ See id. at 897–98.

7 Plaintiffs object that Turner is inapposite because the court in Turner was considering a motion for summary judgment. Resp. ¶ 41. Because the existence of a confidential relationship is a question of fact, they argue that Turner was decided on the weight of the evidence and is not instructive at the motion to dismiss stage. This is incorrect. Regardless of its summary judgment posture, the Turner court ruled on ecclesiastical abstention grounds, which are jurisdictional. See 18 S.W.3d at 897–98. While the Turner court's analysis referred to the plaintiff's factual allegations, it did so for purposes of its First Amendment analysis, not to analyze whether the evidence gave rise to a genuine dispute of material fact. See id. Like in Turner , the Court does not have jurisdiction over Plaintiffs' claim as a matter of law.

5. Prima facie tort

The Church moves to dismiss Plaintiffs' claim for prima facie tort because Texas law does not recognize the cause of action. Mot. ¶¶ 35–36. Plaintiffs argue that the claim is adequately pleaded under New Mexico law, which does recognize the claim. Resp. ¶¶ 44–45. Accordingly, the Court first applies a choice-of-law analysis to determine which state's law governs Plaintiffs' prima facie tort claim.⁸

8 Because the parties appear to assume that Texas law applies to the other causes of action—citing Fifth Circuit and Texas case law in their briefing and not raising choice-of-law issues—the Court applies Texas law to those claims. See Access Telecom, Inc. v. MCI Telecomms. Corp. , 197 F.3d 694, 705 (5th Cir. 1999) ("[T]he parties appear to assume without argument that Texas law governs, and so, without deciding, shall we."); Emp'rs Ins. of Wausau v. Occidental Petroleum Corp. , 978 F.2d 1422, 1430 n.8 (5th Cir. 1992) ("We need not resolve this choice of law issue ... because it has been virtually ignored by the parties."); Kucel v. Walter E. Heller & Co. , 813 F.2d 67, 74 (5th Cir. 1987) (noting that the parties bear the "obligation to call the applicability of another state's law to the court's attention"); Garwood v. Int'l Paper Co. , 666 F.2d 217, 221 n.6 (5th Cir. Unit B 1982) ("We also assume that Florida law is the applicable substantive law in this case because both parties so argued."); Nova Consulting Grp., Inc. v. Eng'g Consulting Servs., Ltd. , No. SA03CA305FB, 2005 WL 2708811, at *6 (W.D. Tex. June 3, 2005) ("Where the parties fail to raise the issue of choice of law ... the parties are deemed to have acquiesced in the application of the law of the forum.") (internal quotations omitted). And, "Texas law may apply to some claims, but not other claims." Scottsdale Ins. Co. v. Nat'l Emergency Servs., Inc. , 175 S.W.3d 284, 291 (Tex. App. 2004).

a. Choice-of-Law

Where a conflict of law arises, federal courts sitting in diversity apply the choice-of-law rules of the forum state—here, Texas. See Mayo v. Hartford Life Ins. Co. , 354 F.3d 400, 403 (5th Cir. 2004). "Texas courts initially determine whether there is a conflict between Texas law and the other potentially applicable law." Bailey v. Shell Western E&P, Inc. , 609 F.3d 710, 722 (5th Cir. 2010) ("If the result would be the same under the laws of either jurisdiction, there is no need to resolve the choice of law question.") (internal quotations omitted).

Here, there is a conflict. Texas law does not recognize prima facie tort as a cause of action. See, e.g. Ashford Hospitality Prime Inc. v. Sessa Capital (Master) LP , No. 3:16-CV-00527-N, 2017 WL 2955366, at *10 (N.D. Tex. Feb. 17, 2017) ("Because there is no cause of action for prima facie tort under Texas law, the Court dismisses [the plaintiff's] claim for prima facie tort."). New Mexico law does, however. See, e.g. , Schmitz v. Smentowski , 109 N.M. 386, 785 P.2d 726, 730 (1990) ("[W]e are convinced that [the plaintiffs] adequately presented the elements of prima facie tort."). Because New Mexico recognizes Plaintiffs' claim and Texas does not, there is a conflict. See, e.g., Quicksilver Res., Inc. v. Eagle Drilling, LLC , 792 F. Supp. 2d 948, 954 (S.D. Tex. 2011) (finding "an obvious conflict" where "Oklahoma recognizes the cause of action and Texas does not").

Where there is a conflict and no governing choice-of-law agreement, as here, Texas applies the "most significant relationship" test from the Restatement (Second) of Conflict of Laws. See Weber v. PACT XPP Techs., AG , 811 F.3d 758, 771 (5th Cir. 2016) ; Duncan v. Cessna Aircraft Co. , 665 S.W.2d 414, 420–21 (Tex. 1984) ; Restatement (Second) of Conflict of Laws § 6 (Am. Law Inst. 1971). In particular, when the analysis concerns a tort claim, Texas courts apply the factors listed in section 145 of the Restatement to determine which state bears the most significant relationship to the claim. See Gutierrez v. Collins , 583 S.W.2d 312, 318 (Tex. 1979) ("[A]ll conflicts cases sounding in tort will be governed by the ‘most significant relationship’ test as enunciated in Sections 6 and 145 of the Restatement."). The tort-specific factors are: "(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation, and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered." See Toyota Motor Co. v. Cook , 581 S.W.3d 278, 283 (Tex. App. 2019) (quoting Restatement (Second) of Conflict of Laws § 145 ).

Under the Restatement, in tort cases, "the applicable law will usually be the local law of the state where the injury occurred." Restatement (Second) of Conflict of Laws § 156(2). Indeed, in the commentary to section 145, which lists the tort-specific factors, the Restatement provides that, "subject to only rare exceptions, the local law of the state where conduct and injury occurred will be applied" because "a state has an obvious interest in ... providing redress for injuries that occurred there." Id. § 145 cmt. d; see also id. § 145 cmt. e (stating that the place of injury factor "plays an important role in the selection of the state of the applicable law ... [because] persons who cause injury in a state should not ordinarily escape liabilities imposed by the local law of that state on account of the injury"). In other words, "the Restatement emphasizes, but does not mandate, the choice of state substantive law with the greatest connection to the injury plaintiff seeks to remedy." See Jelec USA, Inc. v. Safety Controls, Inc. , 498 F. Supp. 2d 945, 952 (S.D. Tex. 2007). Texas courts have construed the Restatement's guidance as "a presumption in favor of applying the law of the place of the injury." See Enter. Prods. Partners, L.P. v. Mitchell , 340 S.W.3d 476, 480 (Tex. App. 2011).

"Using this presumption in favor of the law of the state where the injury occurred as the starting point," the Court first identifies the location of the injury and the conduct causing the injury. See id. It is important to note that Plaintiffs' prima facie tort claim is not based on Mr. Arellano's sexual assaults of Jane Doe, which occurred twice in El Paso, Texas, and once in a hotel in New Mexico during the Church's youth retreat. Rather, Plaintiffs' prima facie tort claim is based on the Church's "deliberate decision not to report Arellano's abhorrent history or Jane's abuse." Resp. ¶ 45; see also Compl. ¶¶ 123–25 (referring, in the prima facie tort section, to the Church "concealing the abuse of Jane," "failing or refusing to report ... Arellano's criminal acts," and "failing to provide law enforcement with information to aid in its investigation of the abuse"). Therefore, while other allegations in the Complaint concern injuries that occurred in Texas, the conduct and injuries at issue in this specific tort occurred in New Mexico, where the Church is located. Indeed, the Complaint specifies that it was the sexual assault at the hotel in New Mexico which Sue and Sam Doe reported to the Church and to a police department in New Mexico. Compl. ¶¶ 59, 61. And, Plaintiffs allege that it was specifically the New Mexico incident that the Church refused to cooperate with the police in investigating, "rebuffed" Sam Doe's inquiries about, and "conspired with Arellano and his father to conceal ... from Plaintiffs." Id. ¶¶ 64–65. Because this specific conduct, and any injuries caused by this conduct, occurred in New Mexico, the Court finds that the first two Restatement factors counsel in favor of applying New Mexico law.

The remaining factors are mixed. On the third factor, "domicile, residence, nationality, place of incorporation, and place of business of the parties," Jane Doe was residing in Texas, while the Church's place of incorporation and business was New Mexico. The fourth factor, "the place where the relationship, if any, between the parties is centered," is unclear. While the Does resided in Texas, the Church was based in New Mexico, where the Does presumably went to attend services and where the youth retreat took place.

Ultimately, given that the last two factors are inconclusive, and the first two factors—which the Restatement places special emphasis on—presumptively counsel in favor of New Mexico law, the Court finds that New Mexico law applies to Plaintiffs' prima facie tort claim. See Mitchell , 340 S.W.3d at 480 ; see, e.g. , Liberty Mut. Ins. Co. v. Transit Mix Concrete & Materials Co. , No. 06-12-00117-CV, 2013 WL 3329026, at *6 (Tex. App. June 28, 2013) (finding that Arkansas, "as the place of the injury and where it is alleged that tortious conduct giving rise to the injury occurred," "has a significant interest" that is "sufficient to counteract the Texas interest" found under other factors).

b. The prima facie tort claim

"In 1990, New Mexico joined a minority of other jurisdictions in recognizing a stand-alone claim for prima facie tort" in Schmitz v. Smentowski , 785 P.2d 726. Beaudry v. Farmers Ins. Exch. , 412 P.3d 1100, 1104 (N.M. 2018). The elements of the claim are (1) an intentional and lawful act, (2) an intent to injure the plaintiff, (3) injury to the plaintiff as a result of the intentional act, and (4) the absence of sufficient justification for the injurious act. Id. While the cause of action is "not intended to provide a remedy for every intentionally caused harm," it does serve as "a remedy for acts committed with intent to injure the plaintiff and without justification." See Kitchell v. Pub. Serv. Co. of New Mexico , 126 N.M. 525, 972 P.2d 344, 348 (1998). New Mexico courts use the terms "malice" and "intent to injure" interchangeably to refer to the requisite degree of intent. See Lexington Ins. Co. v. Rummel , 123 N.M. 774, 945 P.2d 992, 995 (1997).

New Mexico courts analyzing a prima facie tort claim ultimately apply a balancing test "to determine whether a party's justification for the injurious act outweighs the culpability of the party's conduct." Beaudry , 412 P.3d at 1104. However, at the motion to dismiss stage, Plaintiffs are only required to state a claim to relief for prima facie tort that is plausible on its face. See Twombly , 550 U.S. at 555, 570, 127 S.Ct. 1955 ; see also Schmitz , 785 P.2d at 730 (finding that the pleadings "stated the essential elements of a prima facie tort as an alternative cause of action with sufficient particularity" by "complaining of a lawful act, conducted with the intent to injure and without sufficient economic or social justification, that did injure them").

Here, Plaintiffs have sufficiently alleged a claim for prima facie tort against the Church. They allege three theories of the claim, each enumerating the requisite elements. Plaintiffs allege that the Church "intended to cause harm to Plaintiffs by concealing the abuse of Jane to protect [the Church's] putative reputation," "intended to cause harm to Plaintiffs by failing or refusing to report, as required by New Mexico and Texas law, Arellano's criminal acts to law enforcement," and "intended to cause harm to Plaintiffs by failing to provide law enforcement with information to aid in its investigation of the abuse of Jane." Compl. ¶¶ 123–25. Plaintiffs allege that each act was "not justifiable under any circumstances" and caused injury. Id. And, Plaintiffs allege facts which support these claims. As aforementioned, their allegations include that, after "Sam Doe reported the rape to [the Church]," the Church did not report the abuse to any government agency, did not cooperate with law enforcement "[d]espite insistence" that they do so, and "conspired with Arellano and his father to conceal" the sexual abuse "from Plaintiffs as well as from authorities." Id. ¶¶ 61–64. When "Sam Doe reached out to [the Church] on several occasions regarding this matter," he "was rebuffed." Id. ¶ 65. And, "[e]ven after Sam Doe reported the criminal acts perpetrated upon his daughter, [the Church] failed to investigate the claims or discipline Arellano." Id. ¶ 67.

These allegations sufficiently establish a claim for prima facie tort based on the Church's concealment of the abuse and refusal to cooperate with law enforcement. Plaintiffs allege that conduct was lawful but undertaken without sufficient justification and with the intent to harm, and caused injury to Plaintiffs, satisfying the elements of a prima facie tort claim. See Beaudry , 412 P.3d at 1104 ; Schmitz , 785 P.2d at 730. However, Plaintiffs' allegation that the Church "intended to cause harm to Plaintiffs by failing or refusing to report, as required by New Mexico and Texas law, Arellano's criminal acts to law enforcement," cannot give rise to a prima facie tort claim. This theory fails because the allegation specifically states that the Church failed to take an action required by law, which is inherently not a "lawful" act as required. See, e.g. , Silverman v. Progressive Broad., Inc. , 125 N.M. 500, 964 P.2d 61, 72 (N.M. App. 1998) ("Plaintiff contends that Defendants committed a prima facie tort when they intentionally discriminated against her on the basis of sex. If what Plaintiff alleges is true, however, then Defendants' conduct ... would not constitute a lawful act necessary for a prima facie tort."). Therefore, Plaintiffs sufficiently alleged their claim for prima facie tort based on the Church's concealment of the abuse and refusal to cooperate with the police investigation, but not based on the Church's failure to report.

6. Sue and Sam Doe's individual claims

Last, the Church moves to dismiss Sue and Sam Doe's "individual claims for the mental anguish they claim to have suffered because of the sexual assault on their daughter." Mot. ¶ 37. The Church argues that "Texas law allows for Jane, as the victim of the sexual assault, to bring claims for her mental anguish," but that "[h]er parents, however, are not afforded the same protections or claims." Id.

Texas law bars claims for "loss of consortium" damages by parents whose children have been seriously, but non-fatally, injured. See Roberts v. Williamson , 111 S.W.3d 113, 119–20 (Tex. 2003). Recovery for mental anguish is permitted, but only under highly circumscribed circumstances. See id. at 120 (referring to bystander recovery doctrine); see also Ramirez v. Am. Home Prods. , No. C.A. B-03-155, 2005 WL 2277518, at *7 (S.D. Tex. Sept. 16, 2005) ("The law in Texas concerning an individual's recovery for damages for emotional distress or mental anguish for a close family member's serious injury is extremely circumscribed."). A parent can only recover mental anguish damages for a non-fatal injury to their child under a bystander recovery theory, meaning their damages must arise directly from their contemporaneous sensory perception of the serious injury occurring. See Powell v. Keeley , 795 F. Supp. 2d 587, 590 (S.D. Tex. 2011) (citing Chapa v. Traciers & Assocs. , 267 S.W.3d 386, 398 (Tex. App. 2008) ; Boyles v. Kerr , 855 S.W.2d 593, 597–98 (Tex. 1993) ).

Here, Plaintiffs Sue and Sam Doe have not sufficiently pleaded claims giving rise to mental anguish damages. Even if Jane Doe's injuries could give rise to a bystander recovery claim, Plaintiffs do not allege facts which would entitle Sue and Sam Doe to such damages. See Powell , 795 F. Supp. 2d at 590. Plaintiffs' Complaint states that Sue and Sam Doe suffered "mental anguish," Compl. ¶¶ 78, 87, and repeatedly refers to their "mental" and "emotional" damages, Compl. ¶¶ 98, 104, 117, 132, 151, 164. But that is the extent of those allegations. Moreover, Plaintiffs effectively concede that Sue and Sam Doe are not entitled to recovery for these damages in their Response. See Resp. ¶ 46. Plaintiffs state that the Church is "presuming" that Sue and Sam Doe seek mental anguish damages, but, "[r]ather, because ... Sue and Sam Doe have incurred numerous medical and/or counseling expenses ... all as a direct and proximate result of the Church's acts and omissions ... Sue and Sam Doe are entitled to compensatory damages." Id. Recovery for such compensatory damages is, in fact, permitted. See Morrell v. Finke , 184 S.W.3d 257, 290 (Tex. App. 2005). The Church's Motion does not challenge such damages. Mot. ¶¶ 37–38. Therefore, while Sue and Sam Doe may not recover mental anguish damages, they may proceed with their claims for compensatory damages to the extent they are available under Texas law.

In its Reply, however, the Church does argue that Sue and Sam Doe "have failed to allege any individual cause of action for which damages could be awarded." Reply ¶ 21. The Church reasons that any "medical expenses Jane Doe has incurred (even if paid by her parents) will be submitted to the jury as part of her damages, thus there is no need or available procedure or mechanism that allows her parents to recover the damages they are seeking." Id. (citing Roberts , 111 S.W.3d at 120 ). This is incorrect. As the Morrell court explained, "[a] child's cause of action ... is distinctly separate from the parent's right to recover damages for injuries to his children." 184 S.W.3d at 290. "A child may recover damages for pain and suffering as well as for other damages she may accrue after she reaches the age of majority. Parents, however, possess a cause of action to recover medical expenses incurred by their minor children through the date the child attains majority." Id. at 290–91 (internal citation omitted); see also Bering Mfg. Co. v. Peterson , 28 Tex.Civ.App. 194, 67 S.W. 133, 135 (1902) ("Historically, in Texas, the right to recover for medical costs incurred in behalf of the minor is a cause of action belonging to the parents."). Nothing in the Roberts court's holding—that loss of consortium and mental anguish damages arising out of a non-fatal injury to a child are unavailable to parents—changes this longstanding rule. See, e.g., Morrell , 184 S.W.3d at 270 (citing Roberts in foreclosing the plaintiffs' claim for loss of consortium, before reaching the holding that the parent-plaintiffs were entitled to compensatory damages).

Here, Plaintiffs' Complaint names Sue and Sam Doe in their individual capacities on many of its causes of action, including, for example, its direct negligence claims against the Church. See, e.g. , Compl. ¶¶ 87, 98, 110. Likewise, in Morrell , where the court explained the parents' entitlement to medical expenses incurred on behalf of their injured child, the underlying cause of action was negligence. See 184 S.W.3d at 269 (listing the jury's verdict and damages calculations). Sue and Sam Doe may seek compensatory damages based on these claims. Id.

In sum, Sue and Sam Doe have not sufficiently pleaded claims supporting mental anguish damages, to the extent that they were even sought. Sue and Sam Doe may proceed in their individual capacity to recover compensatory damages.

III. CONCLUSION

For the foregoing reasons, the Church's Motion, ECF No. 14, is GRANTED in part and DENIED in part. The Motion is GRANTED as to Plaintiffs' negligence per se claim and breach of fiduciary duties claim, and Plaintiffs Sue and Sam Doe's claims for mental anguish damages. The Motion is DENIED as to Plaintiffs' vicarious liability negligence claim, direct liability negligence claim, gross negligence claim, prima facie tort claim, and Plaintiffs Sue and Sam Doe's claims for compensatory damages.

SO ORDERED.