The Estate of Deshaun Newton et al v. Grandstaff et al
Filing
55
Memorandum Opinion and Order granting 45 Motion for Summary Judgment. The court dismisses with prejudice all claims asserted by Plaintiffs against YMCA-MD. (Ordered by Judge Sam A Lindsay on 7/20/2012) (axm)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
THE ESTATE OF DESHAWN NEWTON,
by and through the personal representatives
Duane Newton and Theresa Grant Newton;
DUANE NEWTON, an individual; and
THERESA NEWTON,1 an individual,
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Plaintiffs,
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v.
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WES GRANDSTAFF, JANE DOE
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GRANDSTAFF, NEXT LEVEL BALLERS §
a sole proprietorship, YMCA, YMCA
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OF METROPOLITAN DALLAS
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nonprofit corporations, NIKE USA INC.
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an Oregon Corporation, and JOHN DOES
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1 through 15,
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Defendants.
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Civil Action No. 3:10-CV-809-L
MEMORANDUM OPINION AND ORDER
Before the court is the Motion for Summary Judgment of YMCA of Metropolitan Dallas,
filed February 7, 2012. Plaintiffs, The Estate of DeShawn Newton, Duane Newton, and Theresa
Newton, did not file a response or brief.2 After careful consideration of the motion, brief of YMCA
1
The court directs the clerk of the court to change the name “Teresa” to “Theresa” Newton, and
change “thru” to “through” on the docket sheet.
2
Under the Local Civil Rules of this district, a response and brief to a summary judgment motion are
due 21 days after the motion is filed. LR 7.1(e).
Memorandum Opinion and Order - Page 1
of Metropolitan Dallas, appendix, record, and applicable law, the court grants the Motion for
Summary Judgment of YMCA of Metropolitan Dallas.
I.
Background
The Estate of DeShawn Newton, by and through the personal representatives of Duane
Newton and Theresa Grant Newton; Duane Newton, an individual; and Theresa Newton, an
individual, (collectively, “Plaintiffs”), filed this action on April 21, 2010. In the First Amended
Complaint for Damages (“Complaint”), filed November 23, 2010, Plaintiffs assert claims for
“negligence, wrongful death and outrage” against Wes Grandstaff; Jane Doe Grandstaff; Next Level
Ballers, a sole proprietorship; YMCA and YMCA of Metropolitan Dallas (“YMCA-MD”), nonprofit
corporations; Nike USA, Inc., an Oregon Corporation; and John Does 1 through 15 (collectively,
“Defendants”). DeShawn Newton died on April 26, 2008, while participating in a Next Level
Ballers Basketball Tournament in Dallas County, Texas. Plaintiffs contend that Defendants failed
to provide adequate emergency medical personnel; adequate emergency medical equipment; and
effective ingress and egress to the facility when the basketball game was played. Plaintiffs further
contend that the allegedly tortious conduct of Defendants was a direct and proximate cause of
injuries that they suffered, and they seek damages for their alleged injuries. YMCA-MD has filed
a motion for summary judgment, seeking dismissal of this action against it.
II.
Motion for Summary Judgment Standard - No Response Filed
Summary judgment shall be granted when the record shows that there is no genuine dispute
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine”
Memorandum Opinion and Order - Page 2
if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all facts and inferences in the light most favorable to the
nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift
Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make credibility
determinations or weigh the evidence” in ruling on a motion for summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party’s case, the party opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). “[When] the record taken as a whole could not lead
a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’” Id.
(citation omitted). Mere conclusory allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325
(5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation
are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.),
cert. denied, 513 U.S. 871 (1994).
The party opposing summary judgment is required to identify specific evidence in the record
and to articulate the precise manner in which that evidence supports his or her claim. Ragas, 136
F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of
evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see also
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir.), cert. denied, 506 U.S. 832
Memorandum Opinion and Order - Page 3
(1992). “Only disputes over facts that might affect the outcome of the suit under the governing laws
will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact
issues that are “irrelevant and unnecessary” will not be considered by a court in ruling on a summary
judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the
existence of an element essential to its case and on which it will bear the burden of proof at trial,
summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Plaintiffs filed no response to the summary judgment motion. This failure, of course, does
not permit the court to enter a “default” summary judgment. Eversley v. Mbank Dallas, 843 F.2d
172, 174 (5th Cir. 1988). A court, however, is permitted to accept the movant’s facts as undisputed
when no response or opposition is filed. Id. Normally, “[a] summary judgment nonmovant who
does not respond to the motion is relegated to [his] unsworn pleadings, which do not constitute
summary judgment evidence.” Bookman v. Schubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996)
(citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). The pleadings
are not verified, and, therefore, Plaintiffs have presented no summary judgment evidence, and the
court is allowed to accept YMCA-MD facts as undisputed.
III.
Requests for Admissions
Some of the summary judgment evidence relied on by YMCA-MD comes from Requests for
Admissions. YMCA-MD served Requests for Admissions on each of the three Plaintiffs on October
31, 2011. Under applicable law, “[a] matter is admitted unless, within 30 days after being served,
the party to whom the request is directed serves on the requesting party a written answer or objection
addressed to the matter and signed by the party or its attorney.” Fed. R. Civ. P. 36(a)(3). The
parties may stipulate to, or the court may order, a shorter or longer time to answer or object to the
Memorandum Opinion and Order - Page 4
request. Id. Plaintiffs did not serve answers or objections to the requests, and nothing exists in the
record to establish that the parties stipulated to, or that the court ordered, a time longer than 30 days
to respond. Accordingly, YMCA-MD’s Requests for Admissions to Plaintiffs are deemed admitted
as a matter of law.
The effect of a matter admitted is that it “is conclusively established unless the court, on
motion, permits the admission to be withdrawn.” Fed. R. Civ. P. 36(b). As no motion has been filed
by Plaintiffs, the matters set forth in YMCA-MD’s Requests for Admissions to Plaintiffs are
conclusively established, and constitute competent and undisputed summary judgment evidence.
IV.
Undisputed Facts
The following material facts are undisputed:
A.
On April 26, 2008, there was a basketball tournament at a facility owned by
YMCA-MD in Grand Prairie, Texas (“the facility”). YMCA-MD did not organize,
host, manage, or sponsor the tournament and did not exercise or retain any control
over the basketball tournament.
B.
While seated at the bench during a game, DeShawn Newton suddenly
collapsed. Right after DeShawn’s collapse, a registered pediatric nurse began
providing medical aid to him.
Emergency Medical Service (“EMS”) was
immediately called and dispatched to the facility.
C.
EMS personnel had no trouble entering or accessing the facility and were at
DeShawn’s side within five minutes of his collapse. Up until the time that EMS
arrived, DeShawn was alive and breathing; however, shortly after EMS took over his
care, DeShawn stopped breathing and went into cardiac arrest. EMS personnel
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immediately began cardiopulmonary resuscitation (“CPR”) on DeShawn and used
an automated external defibrillator (“AED”). DeShawn Newton, however, died of
a previously unknown and undiagnosed heart condition.
D.
YMCA-MD had personnel trained in both CPR and AED within the building
that housed the facility while the tournament was conducted. YMCA-MD also had
appropriate emergency equipment in the facility, such as an AED. YMCA-MD did
not use its equipment or provide any care to DeShawn because he was already
receiving care from a registered nurse and then later received care from EMS.
E.
YMCA-MD, the owner of the facility, did not participate in the activity of the
tournament. There was also no problem of ingress or egress at the facility, and
DeShawn was not injured by any defect or condition of the property.
V.
Analysis
A.
Plaintiffs’ Contentions
The court finds it helpful to include the key allegations and theories of recovery as stated in
Plaintiffs’ Complaint. The key allegations and theories of recovery are as follows:
3.3
On April 26, 2008, DeShawn Newton died. He was
participating in the Next Level Ballers National Basketball
Tournament in Dallas County, Texas. DeShawn played the first half
of his basketball game and performed very well. He did not exhibit
signs of physical stress. DeShawn was sitting on the sidelines
waiting for his turn to return to the game. He looked up at his family
members and assented to their gestures of approval. He smiled and
looked on. Suddenly, DeShawn went into a form of cardiac arrest.
Theresa Grant Newton, DeShawn’s mother, was summoned to the
court because her son was not breathing. She was accompanied by
Deanna Newton and Earline Jackson. While at DeShawn’s side,
DeShawn’s coach attempted to administer CPR, but no one else came
to DeShawn’s aid. Emergency medical [personnel] was dispatched
to the location; however, they were not able to get into the facility
Memorandum Opinion and Order - Page 6
and to DeShawn’s aid for between 20 to 30 minutes after the incident.
There was no trainer certified in CPR. There were no emergency
medical personnel on duty at the facility. There was no medical
equipment, such as a defibrillator, available in the event of an
emergency.
3.4
The tournament took place at a YMCA facility. On
information and belief, that facility was owned and operated by
YMCA of Metropolitan Dallas and/or YMCA. The tournament was
sponsored by Nike USA, Inc. On information and belief, YMCA of
Metropolitan Dallas, YMCA, and Next Level Ballers, collect[ively]
referred to as the defendants, took part in organizing and managing
the tournament. Each was responsible for ensuring that reasonable
care was taken to provide that all necessary safety precautions were
taken.
3.5
Defendants failed to hire or arrange for trainers certified in
administering Cardio Pulmonary Resuscitation (“CPR”) or other first
aid to injured players or players in need of immediate medical
attention.
3.6
Defendants also failed to provide for any emergency medical
personnel to be present during the course of the tournament to
provide immediate medical treatment for participants in the
tournament in the event of a medical emergency.
3.7
Defendants also failed to provide for any emergency medical
equipment, such as a defibrillator, available for use during the course
of the tournament to provide immediate medical treatment for
participants in the tournament in the event of a medical emergency.
3.8
The defendants failed to provide effective ingress and egress
to the facility that would have allowed outside emergency medical
providers immediate access to players injured or who might develop
health conditions requiring immediate need of emergency medical
care during the course of the tournament.
3.9
At the time of DeShawn Newton’s death, Next Level Ballers
tournament had 128 teams that participated. It is the standard in the
course of these kinds of tournaments with this level of play and
participation that trainers certified in CPR be available in the event
of an emergency. It is the standard in the course of these kinds of
tournaments for emergency medical personnel to be on hand and
available to provide emergency medical care. It is the standard in the
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course of these kinds of tournaments to have available emergency
medical equipment, such as a defibrillator, available to staff to be
used in the event of a medical emergency. It is standard in the course
of these kinds of tournaments for the proper ingress and egress [to]
be made available to outside emergency medical technicians or aid
workers so that individuals in need of emergency medical care and
receive that care within a reasonable amount of time.
3.10 YMCA, YMCA of Metropolitan Dallas, Nike USA, Inc., Next
Level Ballers, and Wes Grandstaff, have each had significant
experience in organizing and sponsoring basketball tournaments like
the one at issue in this case. They were each aware of the danger that
would be caused by the failure to have available emergency medical
equipment. They were each aware of the danger that would be
caused by the failure to have trainers certified in CPR available to act
in the event of a medical emergency. They were each aware of the
danger that would be caused by the failure to provide adequate
ingress and egress into the facility where this tournament was taking
place, such that outside emergency medical personnel would gain
access to the facility and reach persons in need of emergency medical
care.
3.11 Upon information and belief, had the defendants provided
trainers certified in CPR, provided emergency medical equipment or
provided adequate ingress and egress to and from the facility,
DeShawn Newton would have survived the sudden emergency
medical condition that eventual[ly] led to his death. Upon
information and belief, the defendants failed to provide these
adequate safety measures for the sole purpose of avoiding the
expense and in violation of the usual and customary standards
employed by organizers and sponsors of similarly sized tournaments.
3.12 Upon information and belief, the failure to provide the safety
measures alleged herein was egregious, grossly negligent and in
reckless disregard for the safety of the person participating in this
basketball tournament.
Memorandum Opinion and Order - Page 8
3.13 The injuries that were suffered by the plaintiffs and
specifically DeShawn Newton were not of the kind that are inherent
in the risks associated with playing basketball. DeShawn’s death
could have been prevented had the defendants provided the safety
measures alleged herein. Upon information and belief, the
defendants’ failures to take such safety precautions were the direct
and proximate cause of the injuries to each of the plaintiffs and
specifically those of DeShawn Newton.
Compl. ¶¶ 3.3-3.13.
B.
Negligent Activity
Under Texas law, “[t]he elements of a negligence cause of action are a duty, a breach of that
duty, and damages proximately caused by the breach of duty.” Doe v. Boys Club of Greater Dallas,
Inc., 907 S.W.2d 472, 477 (Tex. 1995) (citations omitted). Proximate cause consists of two
components: “cause in fact and foreseeability.” Id. Regarding these components, the Texas
Supreme Court has stated the following:
These elements cannot be established by mere conjecture, guess, or
speculation. The test for cause in fact is whether the negligent act or
omission was a substantial factor in bringing about injury, without
which the harm would not have occurred. Cause in fact is not shown
if the defendant’s negligence did no more than furnish a condition
which made the injury possible. . . . The evidence must go further,
and show that such negligence was the proximate, and not the remote,
cause of resulting injuries [and] justify the conclusion that such injury
was the natural and probably result thereof.
....
Foreseeability, the other aspect of proximate cause, requires
that a person of ordinary intelligence should have anticipated the
danger created by a negligent act or omission. The danger of injury
is foreseeable if its general character might reasonably have been
anticipated. The question of foreseeability, and proximate cause
generally, involves a practical inquiry based on common experience
applied to human conduct. It asks whether the injury might
reasonably have been contemplated as a result of the defendant’s
conduct. Foreseeability requires more than someone, viewing the
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facts in retrospect, theorizing an extraordinary sequence of events
whereby the defendant’s conduct brings about the injury.
Id. at 477-78 (internal quotation marks, citations and ellipses omitted).
Plaintiffs contend that “[o]rdinary premises liability rules apply to acts of negligence of the
defendants.” Compl. ¶ 3.14. This is an incorrect statement of the law. Under Texas law, negligent
activity and premises liability are separate claims:
Recovery on a negligent activity theory requires that the person have
been injured by or as a contemporaneous result of the activity itself
rather than by a condition created by the activity. Negligence in the
former context means simply doing or failing to do what a person of
ordinary prudence in the same or similar circumstances would have
not done or done. Negligence in the latter context means failure to
use ordinary care to reduce or eliminate an unreasonable risk of harm
created by a premises condition which the owner or occupier [of
land] knows about or in the exercise of ordinary care should know
about.
Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998) (internal
quotations and footnotes omitted) (original). In other words, unlike a negligent activity claim, “a
premises defect claim is based on the property itself being unsafe.” State v. Shumake, 199 S.W.3d
279, 284 (Tex. 2006).
Assuming that YMCA-MD owed a duty to Plaintiffs, Plaintiffs fail to raise a genuine dispute
of material fact as to the remaining elements of a cause of action for negligence. No evidence
remotely intimates that YMCA-MD breached a duty owed to Plaintiffs. Moreover, no evidence
exists to establish causation, that is, that Plaintiffs’ injuries were proximately caused by YMCAMD’s negligent conduct. Plaintiffs produced no evidence to establish that DeShawn’s death would
not have occurred had YMCA-MD done everything Plaintiff’s alleged that it failed to do. For these
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reasons, no genuine dispute of material fact exists regarding YMCA-MD’s negligence, and it is
entitled to judgment as a matter of law on Plaintiffs’ claim of negligence.
C.
Premises Liability
To the extent Plaintiffs base their claim on premises liability, which apparently is based on
the alleged lack of ingress and egress at the facility where DeShawn was playing basketball. This
basis, as well as any other purported basis asserted by Plaintiffs, is without merit. The elements of
a premises liability claim are:
(1) [a]ctual or constructive knowledge of a condition on the premises
by the owner or occupier; (2) [t]hat the condition posed an
unreasonable risk of harm; (3) [t]hat the owner or occupier did not
exercise reasonable care to reduce or eliminate the risk; and (4) [t]hat
the owner or occupier’s failure to use such care proximately caused
the plaintiff’s injury.
CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000) (citations omitted). YMCA-MD argues
that there is no evidence to support any of the elements of a premises liability claim. The court
agrees.
Plaintiffs have put forth no evidence to support any of the elements of a premises liability
claim. Moreover, even if such evidence exists, there is absolutely no evidence to establish that the
alleged failure to reduce or eliminate the unreasonable risk or unsafe condition proximately caused
Plaintiffs to suffer any injury. No evidence in the record suggests that DeShawn would not have
died had YMCA-MD done everything Plaintiffs alleged that it did not do. As there is no genuine
dispute of material fact regarding Plaintiffs’ premises liability claim, YMCA-MD is entitled to
judgment as a matter of law on this claim.
Memorandum Opinion and Order - Page 11
D.
Wrongful Death
Plaintiffs also make a claim under the Texas Wrongful Death Act (Tex. Civ. Prac. & Rem.
Code Ann. §§ 71.002, 71.004 (West 2008)). Such claim must be based on a “wrongful act, neglect,
carelessness, unskillfulness, or default.” Id. § 71.002(b). Plaintiffs make no claim under the Texas
Survival Statute (Tex. Civ. Prac. & Rem. Code Ann. § 71.021 (West 2008)); however, even
assuming such claim has been asserted, it necessarily fails for the same reason, that the wrongful
death claim fails. The Texas Wrongful Death Act “confers a cause of action upon the surviving
spouse, children, and parents of a decedent for their damages resulting from the decedent’s death.”
THI of Texas at Lubbock I, LLC v. Perea, 329 S.W.3d 548, 568 (Tex. App. — Amarillo 2010, pet.
denied) (citation omitted). On the other hand, the Texas Survival Statute allows “a decedent’s heirs,
legal representatives, and estates to bring actions for personal injury the decedent suffered before
his death.” Id. As Plaintiffs’ claims are based on negligence, and the court has ruled that the
evidence does not support a claim of negligence, the claims under both statutes necessarily fail.
YMCA-MD is therefore entitled to judgment as a matter of law on these claims. Further, as
Plaintiffs’ claims of negligence fail as a matter of law, their claims of gross negligence necessarily
fail.
E.
Plaintiffs’ Claim of “Outrage”
Plaintiffs assert a claim of “outrage” in the Complaint. While the Complaint is not a model
of pellucid draftsmanship as to this claim, the court assumes that Plaintiffs are attempting to assert
a claim for intentional infliction of emotional distress. The court makes this assumption because the
elements of such a claim are: “1) the defendant acted intentionally, 2) the conduct was extreme and
outrageous, 3) the actions of the defendant caused the plaintiff emotional distress, and 4) the
Memorandum Opinion and Order - Page 12
emotional distress suffered by the plaintiff was severe.” Twyman v. Twyman, 855 S.W.2d 619, 62122 (Tex. 1993) (quoting the Restatement (Second) of Torts § 46 (1965)). The Texas Supreme Court
defines extreme and outrageous conduct as conduct that is “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.” Randall’s Food Markets, Inc. v. Johnson, 891
S.W.2d 640, 644 (Tex. 1995) (internal quotation marks and citations omitted). Once again, the
evidence in this case, even under the most liberal reading, simply does not raise a genuine dispute
of material fact that YMCA-MD’s conduct was outrageous as defined by the Texas Supreme Court.
Accordingly, YMCA-MD is entitled to judgment as a matter of law on this claim.3
VI.
Conclusion
For the reasons stated herein, the court determines that no genuine dispute of material fact
exists with respect to any claims or purported claims asserted by Plaintiffs against YMCA-MD.
Accordingly, YMCA-MD is entitled to judgment as a matter of law, and the court grants the Motion
for Summary Judgment of YMCA of Metropolitan Dallas. The court dismisses with prejudice all
claims asserted by Plaintiffs against YMCA-MD.
It is so ordered this 20th day of July, 2012.
_________________________________
Sam A. Lindsay
United States District Judge
3
As no evidence exists to support the claim of intentional infliction of emotional distress, the court
determines that it is unnecessary to address YMCA-MD’s argument that intentional infliction of emotional
distress is a gap-filler tort that cannot be maintained as a separate claim unless “the victim has no other
recognized theory of redress.” Hoffman-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004)
(citation omitted).
Memorandum Opinion and Order - Page 13
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