YMCA OF SAN ANTONIO v. Adams

220 S.W.3d 1, 2006 WL 1895291

• Court: Court of Appeals of Texas
• Decided: October 13, 2006
• Docket: 04-04-00931-CV
• Status: Published

Opinions

OPINION

Opinion by

REBECCA SIMMONS, Justice.

John A. and Jane A. Adams (Adams), individually and as next friend of Adam Adams (hereinafter A.A.) sued YMCA of San Antonio (YMCA) for the negligent hiring, retaining, and supervising of Kenneth Trimble and obtained a favorable jury verdict.¹ The underlying suit stems from the sexually inappropriate conduct of Kenneth Trimble while employed at YMCA. In four issues, YMCA challenges the trial court’s judgment claiming: (1) it is not liable for negligent hiring, retaining, and supervising because plaintiffs failed to secure a finding that Trimble committed a legally cognizable tort, (2) there was no evidence the YMCA could have foreseen Trimble’s conduct, (3) there was legally and factually insufficient evidence that A.A. would suffer future mental anguish, and (4) because the jury found YMCA 5% and Trimble 95% responsible, the judgment should be proportionately modified. Because there is no evidence to support the jury’s finding that A.A. will in reasonable probability suffer from future com-pensable mental anguish, we reverse the judgment of the trial court and render a take-nothing judgment in favor of appellants.

Background

YMCA owns and operates a summer camp for children known as Camp Flaming Arrow (CFA). Steven King, CFA’s director, employed Kenneth Trimble as a camp counselor for the summer session of 1998 and 1999. In the spring of 2000, YMCA learned that Trimble had been arrested and confessed to molesting about 20 CFA campers during his employment at CFA. Trimble confessed he had sexually inappropriate contact with A. A.

A.A. testified that one night he awoke screaming and Trimble went over to check on him but got into his bed and was bumping him. Both A.A. and Trimble were fully clothed. Apparently, this was the only incident occurring between A.A. and Trimble. A. A.’s parents sued the YMCA alleging that its negligence in hiring, retaining, and supervising Trimble proximately caused A. A.’s injury. The case was submitted to a jury, which determined that: (1) Trimble intentionally or knowingly caused serious mental impairment or injury to A. A.; (2) the YMCA’s negligence proximately caused the injury; (3) responsibility should be apportioned 95% to Trimble and 5% to the YMCA; and (4) A.A. sustained no past mental anguish but will in reasonable probability sustain $500,000 in future mental anguish damages. This appeal ensued.

Legal and Factually Sufficiency of Future Mental Anguish

In issue number three, YMCA asserts that the jury’s mental anguish damage findings were based upon factually and legally insufficient evidence. In reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding, except if the jurors could not disregard the contrary evidence. See State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 44 (Tex.1998). The test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.Sd 802, 827 (Tex.2005). When factual sufficiency of the evidence is challenged, we consider all of the evidence, both in support of and contrary to the challenged implied finding, and uphold the verdict unless it is so weak as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

The determination of damages for mental anguish is left to the discretion of the jury, however, the discretion is limited. Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex.1996). To recover for mental anguish, Adams needed to show by direct evidence “the nature, duration, or severity of [A. A.’s] anguish, thus establishing a substantial disruption in [his] daily routine,” or show by other evidence “a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.” Id.

Damages for future mental anguish are recoverable if there is a “reasonable probability that the complainant will suffer from compensable mental anguish in the future.” Lubbock County v. Strube, 953 S.W.2d 847, 857 (Tex.App.-Austin 1997, pet. denied). Additionally, there must be evidence that the award is fair and reasonable compensation. Id.

A. Evidence of Mental Anguish

The jury heard the Adams’ expert testify that A.A. was coping with the incident by not talking about it. This expert testified that sexual abuse robs a child of his innocence and of a natural progressive establishment of some type of normal sexuality with his own peers. The expert referred to several instances where A.A. exhibited abnormal outbursts as a sign of the effects of the incident: his emotional state when his parents asked about his experience at camp; the letter A.A. addressed to Trimble filled with profanity; A. A.’s failure in math class that, according to the expert, was a result of a phobic anxiety because the math teacher’s conduct triggered memories of Trimble; and A. A.’s comments to his grandfather about his feelings towards Trimble. A. A.’s father testified that A.A. carries a deep shame. A.A. testified that he was angry at Trimble and that he would always remember the incident.

Importantly, this expert never met with A.A. and testified that she did not conduct a diagnosis or evaluation of A.A. A clinical psychologist, who met A.A. once, stated that A.A. was coping through denial and that A. A.’s symptoms may not surface until some time in the future. This psychologist testified that he did not conduct a “full or typical evaluation” or a diagnosis of A.A. In fact, on the one occasion the psychologist spent “about 10 to 15 minutes maximum with [A. A.], and about 45 minutes with the parents.”² Further, he understood that the Adams were not asking for an evaluation of A.A. but rather simply to “talk to him and let [them] know how he is, how [he] see[s] him.” In his report, the psychologist stated:

[A.A.] is an articulate, cooperative youngster who appears his stated age. He shows no overt signs of anxiety. He denies any history of depression and/or related symptoms. He had been diagnosed with ADHD when he was five to six years old and was on Adoral, five milligrams daily, up to the summer of 2000. Having recently talked to mother about the incident, [A.A.] says that he is more cautious about strangers when he is out and about. There is no appetite disturbance or sleep disturbance. Thoughts are clear, coherent, goal-directed. No signs of social withdrawal, irritability, et cetera.

He further stated, “at the moment that I saw him he was functioning well. [Although] [i]t doesn’t mean that six months down the road or a year, five years, ten years down the road” the situation will not change.

The majority of this evidence, however, at best supports a claim for past mental anguish, a claim that the jury denied. Lacking was any testimony that there is a reasonable probability A.A. will suffer from compensable mental anguish in the future. Circumstantially, A. A.’s behavior and reactions are no evidence that there was a substantial disruption in A. A.’s daily routine or that A.A. suffered from a high degree of mental pain and distress. See Saenz, 925 S.W.2d at 614; Parkway Co. v. Woodruff, 901 S.W.2d 434, 444-45 (Tex. 1995). The expert’s and psychologist’s testimony amounts to a possibility or speculation that at some time in the future A. A.’s repressed hurt and feelings may surface. The psychologist’s testimony was that some adults, not necessarily A. A., seek counseling for “depression, anxiety and issues surrounding their child abuse.” Their testimony establishes only that it is a possibility, based on what they generally know about child abuse, that A.A. may suffer from some form of mental anguish. However, this is no evidence that A.A. would in reasonable probability suffer compensable mental anguish. Schaefer v. Tex. Employers’ Ins. Assn., 612 S.W.2d 199, 204 (Tex.1980) (stating the evidence amounts to no evidence when the substance of the expert testimony raises only mere possibilities, speculation, and surmise). Here, the jurors were left to speculate about the existence of future compen-sable mental anguish.

B. Presumption of Mental Anguish

Alternatively, primarily citing to Parkway v. Woodruff, 901 S.W.2d 434 (Tex.1995), Adams states that the law recognizes a presumption of mental suffering in cases involving disturbing events like in this case. Notably, all of the Adams’ authorities refer to an inference of past mental anguish. See Moore v. Lillebo, 722 S.W.2d 683, 685 (Tex.1986); Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex.1967); SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230 (Tex.App.-Texarkana 2005, no pet.). Essentially, Adams argues that even if there is no evidence of compensable mental anguish, the jury is allowed to infer, based on Trimble’s sexually inappropriate conduct, that A.A. will in reasonable probability suffer future mental anguish. Under the particular facts of this case, we disagree.³

Although proof of a physical manifestation or injury is not always required, there must be some assurance of the genuineness of the mental anguish claim. See Moore, 722 S.W.2d at 685 (holding “[wrongful death cases present another circumstance where the genuineness of a mental anguish claim obviates the physical manifestation requirement”). In this regard, Parkway does note that historically some types of disturbing injuries have supported an inference that the injury was accompanied by mental anguish. Parkway, 901 S.W.2d at 445. However, any presumption of mental anguish stems as a natural consequence of a serious injury or threat and thus discards the need for evidence of physical manifestation of mental anguish. See id. (noting, generally, events from which mental anguish can be implied consist of “a threat to one’s physical safety or reputation” or involve “the death of, or serious injury to, a family member”); Country Roads, Inc. v. Witt, 737 S.W.2d 362, 365 (Tex.App.-Houston [14th Dist.] 1987, no writ) (stating mental anguish may be presumed where it is the natural consequence of the plaintiffs injury); see also Moore, 722 S.W.2d at 685 (stating “[o]ur decisions allowing mental anguish recovery without proof of physical manifestation recognize that mental anguish inheres in the nature of certain torts”); SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 252 (Tex.App.-Texarkana 2005, no pet.) (“Consistent with [Parkway ], the severity of Mrs. Penny’s fatal injuries is probably sufficient, in and of itself, to support an inference that mental anguish accompanied those injuries.”).

Here, the evidence presented and the jury’s findings do not support the proposition that future mental anguish is a natural consequence of the event or injury that A.A. endured. As discussed earlier, the Adams’ own experts are unsure if A.A. will ever suffer from some form of mental anguish much less compensable mental anguish. Further, while the jury found that Trimble intentionally or knowingly caused serious mental impairment or injury to A. A., they denied the Adams’ claim for past mental anguish. We can only conclude that they did not find sufficient evidence of a compensable injury.

More importantly, the jury implicitly rejected the proposition that mental anguish is a natural consequence of the event or injury that A.A. endured. The presumption of mental anguish is based on the natural continuous effect of a particular event or injury. If based on this record, past mental anguish is not a natural consequence of the event or injury in question then the jury could not have concluded otherwise for future mental anguish.

Consequently, we are unable to conclude that Parkway mandates a presumption that A.A. will in reasonable probability suffer from future compensable mental anguish.⁴ Because there is no evidence to support the jury’s finding that A.A. would in reasonable probability suffer from future compensable mental anguish, we sustain YMCA’s issue number three.

Conclusion

Our conclusion as to issue number three is dispositive of this appeal. We therefore reverse the judgment of the trial court and render a take-nothing judgment on the Adams’ negligent hiring, retaining, and supervising claim against YMCA.

Sitting: SARAH B. DUNCAN,¹ Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.

Rehearing en banc denied.

DISSENTING OPINION ON DENIAL OF MOTION FOR REHEARING EN BANC

1 . In an effort to strike a fair balance between the sealing order in this case and our responsibilities as a court of record, this opinion retains references to and excerpts from the sealed portion of the record that pertain to the core controversy presented by the parties while concealing the identities of the parties subject to the order. See R.V.K. v. L.L.K., 103 S.W.3d 612 (Tex.App.-San Antonio 2003, no pet.).

2 . According to the psychologist, this meeting was rushed and scheduled at the last minute before the Adams left the country.

3 . We note that our focus is only on the type of evidence required to support an inference of future mental anguish damages. Had the Adams presented some evidence from which the jury could reasonably infer that future compensable mental anguish is a natural byproduct of the event or injury in question we may have reached a different result. See, e.g., Tex. & P. Ry. Co. v. Curry, 64 Tex. 85, 1885 WL 7126 *2 (1885) (stating "it is contrary to common experience and the laws of man’s existence and nature that any sane, healthy and robust person by physical injuries may be made a cripple for life ... without mental pain resulting from the changed condition”); Country Roads, Inc. v. Witt, 737 S.W.2d 362, 365 (Tex.App.-Houston [14th Dist.] 1987, no writ) (stating Texas law allows for a presumption of mental anguish where it is the natural consequence of the injury); Waterman Lumber Co. v. Shaw, 165 S.W. 127, 131 (Tex.Civ.App.-Texarkana 1914, writ ref'd) (holding that future mental and physical pain would be inferred as the natural consequence of the physical conditions described).

4 . As it relates to the standard of proof for mental anguish, Parkway court stated:

[although we stop short of requiring this type of evidence in all cases in which mental anguish damages are sought, the absence of this type of evidence, particularly when it can be readily supplied or procured by the plaintiff, justifies close judicial scrutiny of other evidence offered on this element of damages.

At trial, over three years had passed since the testifying psychologist met with A.A. He testified that he was unaware of how A.A. was doing since his meeting. He also stated he was not asked to conduct a diagnosis or evaluation but that his recommendation was for the Adams "to watch out for [A. A.], to observe him as far as any change in his behavior that would indicate that he was not functioning as well as they were used to seeing him function. And ... if nothing arose, they wouldn’t have [a] reason to take him to somebody.” Yet, the Adams’ argued A.A. physically manifested his mental anguish after meeting with the testifying psychologist. A. A., however, never visited a medical professional for a diagnosis or an evaluation. Further, no expert testified that within reasonable probability A.A. would suffer from future mental anguish.

1 . Justice Duncan was a member of the panel which decided this case on original submission. Her last day in office was December 31, 2006, and she is no longer participating in this case.