C.T.W. v. B.C.G. & D.T.G. ex rel. S.G.

809 S.W.2d 788, 1991 Tex. App. LEXIS 1441
CourtCourt of Appeals of Texas
DecidedMay 9, 1991
DocketNo. 09-90-004 CV
StatusPublished
Cited by35 cases

This text of 809 S.W.2d 788 (C.T.W. v. B.C.G. & D.T.G. ex rel. S.G.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C.T.W. v. B.C.G. & D.T.G. ex rel. S.G., 809 S.W.2d 788, 1991 Tex. App. LEXIS 1441 (Tex. Ct. App. 1991).

Opinion

OPINION

BROOKSHIRE, Justice.

This is an action brought by Appellee, S.G., as next friend for the minor Appel-lees, B.G. and D.G., for actual damages and exemplary damages allegedly resulting from the negligence and gross negligence of Appellant in engaging in various sexual encounters with the two minor Appellees. After a jury trial, the trial court signed a judgment awarding each minor Appellee 1.3 million dollars in actual damages and 1 million dollars in exemplary damages. Appellant has perfected this appeal from the judgment of the trial court.

Appellant’s first point of error asserts that there is no evidence or insufficient evidence of negligence on Appellant’s part which proximately caused injury to Appel-lees. Appellant’s second point of error urges that the trial court erred in defining the terms “negligencé”, “ordinary care”, and “gross negligence” in terms of a person of ordinary prudence, because such definitions failed to take into account Appellant’s mental illness. By his third point of error Appellant argues that there is no evidence of gross negligence on his part which proximately caused injury to Appel-lees, because Appellant could not have conscious indifference, or that alternatively, there was insufficient evidence of negligence on the part of Appellant which proximately caused injury to Appellees.

As to Appellant’s first point of error, we must note that Appellees pleaded that Appellant was negligent in committing the following acts:

(1) showing to, and, or watching with the boys sexually explicit or pornographic films, videotapes, or photographs;
(2) photographing or filming the boys in the nude;
(3) showing photographs or films of nude people or sex organs to the boys;
(4) engaging in contact or stimulation of his penis or genitals in the presence of the boys;
(5) providing sexual devices to the boys;
(6) showing how to sexually arouse himself;
[791]*791(7) engaging in detailed discussions of sex acts with the boys;
(8) swimming or bathing in the nude with the boys;
(9) engaging in masturbation in the presence of the boys; and,
(10) engaging or attempting to engage in sexual acts or contact with the boys, including oral homosexual activity.

Appellees also pleaded that the total number of occurrences of such negligence was over one hundred times with each boy. They also alleged that such actions by Appellant were the result of uncontrollable urges brought about by an underlying psy-chosexual disorder. They pleaded that these incidents resulted in severe emotional distress and mental anguish to each of the boys.

Appellees also alleged that Appellant’s failure to procure professional treatment for his known problem constituted negligence that was a proximate cause of injury and damage to the boys. They also alleged that these actions and inactions of Appellant constituted negligent infliction of emotional distress; and that the actions and inactions of Appellant constituted gross negligence, thus justifying the award of punitive damages.

B.G. and D.G. were Appellant’s stepg-randsons. The incidents giving rise to this action began in 1981, when B.G. was approximately eight years old. These incidents with B.G. continued for approximately three or four years. As B.G. became older, Appellant lost interest in him as a sexual partner and began sexual encounters with D.G., the younger of the two brothers. D.G. was approximately six or seven years old when Appellant initiated sexual encounters with him. The encounters with D.G. continued for about a year or one and one-half years.

Each of the occurrences in question involved Appellant and only one of the boys. C.T.W. admitted committing virtually all the acts alleged in Appellees’ trial pleadings. He showed “X-rated” movies and pornographic pictures and devices to B.G. He “skinny-dipped” with B.G. C.T.W. hooked a vacuum cleaner to his penis and encouraged B.G. to do the same. C.T.W. had a mannequin-like dummy used for first aid training in the fire department where he worked. He took the head off the dummy and attached it to his penis in B.G.’s presence. He took pictures of his penis and showed them to B.G.

C.T.W. had oral sex with D.G. On at least one occasion following this oral sex C.T.W. ejaculated into the bathroom sink. During “skinny-dipping” incidents with the boys, he had the boys play with artificial penises. He made videotapes or films of the boys while they were nude. He photographed the boys’ penises and showed them the photographs. C.T.W. destroyed or erased these photographs and videotapes before the boys’ parents discovered what Appellant had been doing. All of the sexual encounters with the boys occurred when they were visiting at the C.T.W. home where Appellant and his wife, the boys’ paternal grandmother, lived. C.T.W. admitted that hundreds of these encounters occurred with the boys.

These incidents were discovered by the boys’ parents when D.G. told his mother about the “games” he and his “pawpaw” had been playing.

Appellant argues that, even if the definitions provided to the jury concerning negligence were correct, there is no evidence that C.T.W. was negligent. This argument is based upon the fact that Mr. Velardo, the social worker who is- treating the boys, testified that C.T.W. suffers from a mental disease called pedophilia. Velar-do also testified that pedophiles do not know that their behavior is wrong. C.T.W. testified that his behavior was beyond his control. C.T.W.’s psychotherapist testified that his behavior was beyond his conscious control.

Appellees’ expert witness, Dr. Gripon agreed that C.T.W. suffered from pedophilia, which he characterized as a psychosex-ual disorder rather than a mental illness. Dr. Gripon also stated that nobody chooses to become a pedophile nor can a pedophile be called an ordinary person.

[792]*792Appellant furthermore states that Appel-lees abandoned any theory of negligence other than the theory that it was negligent of Appellant to fail to seek professional treatment. However, the record reveals that Appellees also asserted throughout the trial that Appellant was negligent in not avoiding situations in which he would be alone with one of the boys when he knew he had strong sexual urges toward them.

In addressing “no evidence” points of error we must consider only the evidence and reasonable inferences that may be drawn from such evidence. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). We must also view such evidence in the light most favorable to the verdict of the jury. Garza, supra. In reviewing factual sufficiency points of error, we must consider all of the evidence and sustain such point only if the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Dr. Gripon also testified that pedophiles know that their sexual urges are not as they should be and that they will lead to trouble.

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Bluebook (online)
809 S.W.2d 788, 1991 Tex. App. LEXIS 1441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ctw-v-bcg-dtg-ex-rel-sg-texapp-1991.