Pollard et al v. Church of God in Christ Inc et al
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re: 47 Final MOTION for Summary Judgment re JS Claims (Ordered by Senior Judge Mary Lou Robinson on 11/9/2017) (vls)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
KIMBERLY D. POLLARD and J.S. (A
CHURCH OF GOD IN CHzuST, INC.,
Active Domestic Tennessee
Corporation, and CHURCH OF GOD
CHzuST, BOARD OF BISHOPS, and BISHOP
JAMES L'KEITH JONES,
CryIL ACTION CAUSE NUMBER
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Churchof God in Christ,Inc.'s motion, filed
for summary judgment on the claims
in this suit on behalf of J.S., Plaintiffs' response
thereto, and the Defendant's reply, For the following reasons, summary judgment for Defendant
Church of God in Christ, Inc. is granted.
This is an action brought on behalf of the alleged victim of a potential sexual assault against
the national church by which the future suspected assailant, Bishop James L'Keith Jones, was
ordained. A final default judgment against Defendant Jones was entered in the amount of
$750,000,00 in damages, plus reasonable and necessary costs in this action. That judgment is now
Plaintiffs allege direct liability against the national church - based upon its alleged negligent
supervision of Bishop Jones
vicarious liability for Jones' acts of grooming J.S. for some
future sexual assault. Specifically, Plaintiffs assert that the national church knew or should have
known of the illicit conduct that Jones had engaged in with Plaintiff Kimberly Pollard because a
basic investigation would have revealed those facts and, because Jones allegedly worked for and was
ordained by the national church, it is liable for his past misconduct.
As alleged in PlaintiffKimberlyPollard's complaintandexplained inher summaryjudgment
affidavit, Plaintiff states that she had her first sexual encounter with then-pastor Jones in 1995 in
New Mexico, when she was 16 years of age. The age of consent is 16 in New Mexico. At some
point in time Plaintiff and her daughter moved to Texas. In about 2002,when Plaintiff was 23 years
old, she states that she stopped seeing Jones. In Novemb er of 2014 - twelve years later
Plaintiff Pollard, then age 35, began a second, consensual, sexual affair in Texas. Plaintiff ended
that affair in or around February of 2016 when she states she realized that Jones was allegedly
"grooming" her daughter for a future sexual affair
she was age
as she then realized he had groomed her when
15. Specifically, Jones told Pollard that J.S. - then age 6 - was "sexy" in her nightgown
and that he would "date" J.S. in the future when she was older.
Pollard first reported the sexual misconduct by Jones to the national office of the church
during the summer of
20i6. Pollard charucterizes
Jones's underlying conduct as grooming her
daughter for a potential future sexual assault, sexual abuse, and/or sexual molestation of a minor,
her daughter, similar to the multiple assaults against her that continued well into Plaintiff Kimberly
Summary Judgment Standards
"The Court may terminate litigation by rendering a summary judgement where no genuine
of material fact exists and the moving parfy is entitled to judgement
as a matter
Honore v. Douglas, 833 F.2d 565,567 (5th Cir. 1987)(citations omitted). See also Celotex Corp.
movant to show entitlement to summary judgment with competent evidence); Fed. R. Civ. Pro.
56@.lt "Summary judgement disposition is inappropriate
if the evidence before the court, viewed
whole, could lead to different factual findings and conclusions." Honore v. Douglas,833 F.2d
at 567. This Court must resolve "all factual uncertainties and mak[e] all reasonable inferences in
favor of the nonmoving party." See id. Accord Bienkowski v. American Airlines,851 F.2d 1503,
Cir. 1988)./2 Such
a f,rnding may be supported by the absence of evidence necessary to
establish an essential element of the non-moving party's case. See Celotex Corp. 477 U.S. at322;
Topalianv. Ehrman,954F.2dll25,1131 (5th Cir.),cert. denied,954 U.S. 1125,113 S.Ct. 82,121
L.Ed.2d 46 (1992).
Discussion and Analysis
Plaintiff Pollard pleads that Jones made one inappropriate comment to J.S. about how sexy
she looked in her
nightgown. Plaintiffs' complaint states that Jones made
not directly to J.S.
about Jones dating J.S. when she turned 18. There is no allegation
in the complaint, no evidence in the record before the Court, and no testimony in Kimberly Pollard's
affidavit stating that Jones made any other inappropriate comment to J.S. or that he touched her
A material fact issue is one that might affect the outcome of the suit under the governing
law. Andersonv.LibertyLobby, [nc.,477U.5.242,249,106S.Ct.2505,2510,91L.Ed.2d202(1986).
The substantive law governing the case will identiff which facts are material. Id., 477 U.S. at 249,106
S,Ct. at 2510. See Bache v. American Tel. and Tel. Co., 840 F.2d 283,287 (5th Cir.), cert. denied,488
u.s. 888, 109 S.Ct. 219,102 L.Ed.2d 210 (1988).
However, "[t]here is no issue for trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party." Liberty Lobby, 477 U.S. at249,106 S.Ct.
at2511 (citations omitted). "If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted," Id. (citations omitted).
inappropriately. A single inappropriate comment
- even with Pollard's
real and valid belief that
do not constitute an overt act
now-actionable sexual assault as that conduct is defined by Texas law. Plaintiffs, both citizens
Jones was grooming her daughter for a future sexual relationship
Texas, do not plead or argue that any other state's law applies under the facts of this case.
As to the church's vicarious liability, that theory of liability centers around the relationship
between a tortfeasor's alleged misbehavior and the work he was hired to do. Under the doctrine
respondeat superior, an employer is liable for an employee's torts if: (1) his acts were within the
employee's general authority; (2)the acts were in funherance of the employer's business; and (3)
the acts were aimed to accomplish the employment objectives for which the employee was hired.
MinyardFoodStoresv, Goodman,S0 S.W.3d 573,577 (Tex.2002). Iftheemployeewasacting
within the course and scope of his employment
at the time he committed the
wrongful acts, liability
for the act is imputed to the employer. See Baptist Mem'l Hospital v. Sampson, 969 S.W .2d945 ,947
(Tex. 1998). However, employers generally are not liable for an employee's "purely personal"
pursuits or "errands of his own," "doing nothing to further the master's business or to accomplish
the object for which he was employed." See Mitchell v. Ellis,374 S.W.2d 333,336 (Tex. Civ. App.
Fort Worth 1963, writ
ref'A. Cf Hein v. Harris Co., 557 S.W.2d
366,368 (Tex. Civ. App.
Houston [1st Dist.] 1917 , writ ref'd n.r,e.)(("The rule is that when a servant turns aside, no matter
how short the time, from the prosecution of the master's work to engage in an affair wholly his own,
he ceases to act for the master, and the responsibility for his actions in pursuing his own business or
pleasure is upon him alone.")(citingTexas & P. Ry. Co. v. Hagenloh, 151 Tex. 191,247 S.W.2d 236
Therefore, assuming Jones was a national church employee, and without needing to consider
Defendant' legal contentions that Jones actually was not its employee, the clear Texas rule is that
Jones was a national church employee, the church as his employer is not liable for employee
Jones' wrongful acts if and when he as an employee strayed from his employer's work for a purely
personal pleasure orpursuit. See Southwest Dairy Products Co. v. De Frates, 132 Tex.556,559,
125 S.W.2d 282,283 (1939).
Pollard's assault claims on behalf of J.S. therefore can not trigger vicarious liability upon the
church unless the church somehow ratified his wrongful actions. "In Texas it is not within the scope
of a servant's authority to commit an assault on a third person." Geiger v. Varo, Inc., 1994 WL
246159, *5 (Tex. App.
395, 398 (Tex. App.
Dallas, June 6, 1994, writ denied)(citing Green v, Jacl
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