W. v. Zirus et al

Filing 259

ORDER GRANTING IN PART AND DENYING IN PART 126 Motion for Summary Judgment; DISMISSING as moot 154 Motion to Strike. Signed by Judge Xavier Rodriguez. (rg)

In the United States District Court
for the
Western District of Texas
C.W., et. al.
v.
Scott Ash James Zirus, et. al.

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SA-10-CV-1044-XR

ORDER
On this date, the Court considered Defendant AIFS’s Motion for Summary Judgment
(docket no. 126), the Plaintiffs’ Response, and the various replies thereto. For the reasons stated
below, the Defendant’s motion is denied in part and granted in part. AIFS’s motion to strike
(docket no. 154) is dismissed as moot inasmuch as the Court did not rely upon the contested
exhibits in deciding this motion.
Factual and Procedural Background
The plaintiffs are Plaintiffs and their legal representatives; they are bringing claims
against the defendant for events that occurred in the summer of 2009. In that summer, each of the
boys attended Camp Stewart for Boys, a boys-only summer camp in Kerr County, Texas. While
at Camp Stewart, each of the boys was allegedly molested by a camp counselor, Scott Ash James
Zirus.
Zirus, an Australian national who is currently serving a 40-year sentence in the Texas
Department of Corrections for the sexual assault of two of the boys, arrived to Camp Stewart
through the American Institute for Foreign Study (AIFS), which does business under the name
Camp America. AIFS is a corporation that specializes in finding foreign individuals who wish to
work as camp counselors and matching them with camps in the United States that need
counselors.

In July 2008, AIFS and Camp Stewart entered into a written contract in which AIFS
agreed to provide transportation, insurance, and visa arrangements for those individuals whom
Camp Stewart selected as its camp counselors. Under the terms of the agreement, AIFS was
obligated to process applications completed by individuals interested in working as a counselor,
conduct applicant interviews, and obtain applicant reference letters.
Camp Stewart agreed to screen all applicants referred by AIFS, and to conduct an
independent review and evaluation of the information provided by AIFS. Camp Stewart was to
make the final selection of any AIFS participant it found suitable for a position as a camp
counselor. Further, Camp Stewart was responsible for monitoring the performance of the
participants it chose as camp counselors, and for making sure those participants knew the
definition of, and penalties for, sexual and physical abuse of children.
In 2008, Zirus applied to AIFS for placement as a camp counselor in the United States.
The AIFS application process requires an applicant to provide a variety of information, including
medical and work history, at least two signed letters of recommendation, and a personal
statement of interest. In addition, AIFS uses previous AIFS camp counselors as independent
contractors to interview an applicant. Further, AIFS requires all applicants to consent to a
criminal background check.
Zirus completed substantially all of the AIFS requirements. He completed an application
form in which he described an extensive youth counseling work history; he provided two letters
of recommendation, though one of the letters was not signed, contrary to AIFS requirements; he
consented to a criminal background check, which indicated that he had no prior criminal history
in Australia; and he conducted an interview with an AIFS independent contractor, which left the
interviewer with a very positive impression of Zirus. In addition, Zirus also furnished AIFS with

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a “Working with Children Check” certification from the government of Western Australia. AIFS
did not conduct any further investigation into Zirus’s background, and on the basis of his
credentials recommended him for placement in the United States. Camp Stewart subsequently
selected Zirus as a counselor for the summer of 2009.
In the second amended complaint, Plaintiffs allege that AIFS (1) negligently hired,
supervised, trained and retained Zirus; (2) was negligent “for failing to warn the minors and their
parents about the foreseeable risks of sexual abuse”; and (3) aided and abetted Camp Stewart’s
breach of its fiduciary duties.
AIFS’s Motion for Summary Judgment
AIFS argues that it had no duty to the Plaintiffs as a matter of law, the Plaintiffs were not
third-party beneficiaries to the AIFS/Camp Stewart agreement, it had no duty to hire, supervise,
train or retain Zirus, in the alternative it did not breach any duty to the Plaintiffs, and no act or
omission of AIFS proximately caused Plaintiffs’ injuries. Further, AIFS argues that the criminal
acts of Zirus were a superseding case of Plaintiffs’ injuries. In addition, AIFS argues that
Plaintiffs have no viable negligent hiring/supervision and training claim against it because Camp
Stewart was Zirus’s employer. Finally, AIFS argues that Plaintiffs have no viable aiding and
abetting claim.
Standard of Review
Summary judgment is proper when the evidence shows “that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Although the evidence is viewed in the light most favorable to the nonmoving party, a
nonmovant may not rely on “conclusory allegations, unsubstantiated assertions, or only a

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scintilla of evidence” to create a genuine issue of material fact sufficient to survive summary
judgment. Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004).

Analysis
I.

Negligent hiring, supervision, training and retention claims

An employer has a duty to adequately hire, train, and supervise employees. See Patino v.
Complete Tire, Inc., 158 S.W.3d 655, 660 (Tex. App.-Dallas 2005, pet. denied); see also Golden
Spread Council, Inc. # 562 v. Akins, 926 S.W.2d 287, 290 (Tex. 1996) (holding that the
defendant could not be held liable under a theory of negligent hiring because it had not hired the
individual whose actions were at issue). It is undisputed that only Camp Stewart was Zirus’s
employer. There is no claim that AIFS and Camp Stewart were joint employers. AIFS’s motion
for summary judgment regarding these claims is granted.
II.

Negligent failure to warn claim

To recover on a negligence claim the Plaintiffs must prove that AIFS owed them a duty of
reasonable care, that AIFS breached that duty, and that their harm was proximately caused by
that breach. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).
A.

Whether AIFS owed the Plaintiffs any duty of reasonable care

Whether a duty exists is a threshold question of law for the court to decide based on the
facts of each case. Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999). If there is no duty there
can be no negligence liability. Id. Thus the Court must determine (1) whether the contract
between AIFS and Camp Stewart imposed on AIFS any duty of care to the Plaintiffs; and (2)
whether Texas common law imposed on AIFS any duty of care to the Plaintiffs. The Court finds
that the contract did not impose a duty on AIFS; however, the Court finds that Texas common

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law imposed at least a limited duty of care upon AIFS. Accordingly, summary judgment cannot
be granted on this claim.
1.

Whether AIFS had a contractual duty to the Plaintiffs

It appears that the Plaintiffs have conceded this issue, as they do not address it in their
Response to AIFS’s summary judgment motion. The plain language of the contract makes it
clear that Camp Stewart was to be responsible for the actions of any camp counselors that AIFS
referred to Camp Stewart, and that AIFS would bear no responsibility for the actions of the
counselors while they were employed at the Camp. As such, the Plaintiffs cannot, and do not,
rely on the contract to support their argument that AIFS owed them a duty of care.
2.

Whether Texas common law imposes a duty on AIFS

In Texas, an actor generally has no legal duty to protect another from the criminal acts of
a third person. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). However,
despite this general maxim, a determination regarding whether a court should impose a common
law duty still requires that court to consider a number of factors, including the risk,
foreseeability, and likelihood of injury to the person harmed, weighed against the social utility of
the actor’s conduct, the magnitude of the burden of guarding against the risk of injury, and the
consequences of placing that burden on the actor. Otis Engineering Corp. v. Clark, 668 S.W.2d
307, 309 (Tex. 1983). Other important factors for a court to consider include whether one party
has superior knowledge of the risk, and whether there exists a right to control the actor whose
conduct precipitated the harm. Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993).
When determining whether to impose a duty on an entity for the acts of another that
cause harm to a third party, the entity’s retained right to control the conduct of the actor or

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property that caused the harm is often an important factor. See e.g., City of Denton v. Page, 701
S.W.2d 831, 835 (Tex. 1986) (noting that, in premise liability cases, possession and control of
the property are necessary predicates for the imposition of a duty of care); Read v. Scott Fetzer
Co., 990 S.W.2d 732 (Tex. 1998) (finding employer had retained sufficient right to control
conduct of its independent contractor’s employee to warrant imposition of duty because contract
with independent contractor required the employees of the independent contractor make sales
exclusively through in-home demonstrations). However, while this factor is important, it does
not obviate the need for a traditional duty analysis, taking into account all of the relevant factors
that bear on whether the imposition of a duty is appropriate. See Golden Spread Council, Inc. v.
Akins, 926 S.W.2d 287, 290–91 (Tex. 1996) (balancing all of the relevant factors, including the
Council’s right to control a particular individual, when making duty determination); Black +
Vernooy Architects v. Smith, 346 S.W.3d 877, 885–90 (Tex. App.–Austin 2011, no pet.) (finding
no duty primarily because architects possessed no right to control conduct of subcontractors, but
also considering other relevant duty factors). Thus, a determination concerning whether AIFS
owed the Plaintiffs a duty of care must weigh all of the relevant factors. In this case, the Court
finds that the relevant factors indicate that AIFS did have at least a limited duty to the Plaintiffs;
as such summary judgment cannot be granted on the basis of this element.
The Court finds the reasoning utilized by the Texas Supreme Court in Golden Spread
Council to be persuasive, as applied to this case. In that case a local church was seeking to start
its own Boy Scout troop and was looking for a scoutmaster. Golden Spread Council, 926 S.W.2d
at 289. The Golden Spread Council (GSC), the local embodiment of the Boy Scouts of America,
had been made aware of allegations of child sexual abuse against an assistant scoutmaster. Id.
Despite the knowledge of these allegations, the GSC recommended the assistant scoutmaster to

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the church for the position of head scoutmaster. Id. The church accepted the individual as head
scoutmaster, and soon thereafter the scoutmaster was arrested and convicted for child
molestation. Id.
The Texas Supreme Court, balancing all of the factors that are relevant when determining
whether to impose a duty on an entity, concluded that the GSC did owe the injured child a
limited duty. Id. at 290–91. In particular, the Court noted that the injury to the child was
foreseeable because the GSC was aware of earlier complaints of sexual misconduct against the
scoutmaster. Id. at 290. Further, the Court noted that the risk and likelihood of injury were high
in this case, where the scoutmaster would be in close contact with children. Id. at 291. The Court
also noted that, although the GSC did not have the right to control the day-to-day activities of the
church scout troop or its scoutmasters, the Rules and Regulations of the Boy Scouts of America,
by requiring local councils such as the GSC to provide assistance to groups seeking to acquire
scoutmasters, gave the GSC the ability to not recommend an individual about whom it had
information pertaining to sexual misconduct with children. Id. The Court balanced these
considerations against the social utility and magnitude of the burden being placed on the GSC,
concluding that while the social utility of local Boy Scout councils was high, the magnitude of
the burden in this case was relatively low. Id. The GSC was not required to investigate the
scoutmaster; it was only required to act reasonably in light of the information it had already
received. Id. Thus the Court held that, considering the above factors, the GSC’s affirmative act
of recommending the scoutmaster to the church created a duty on the part of the GSC to use
reasonable care when making that recommendation, in light of the information it had received.
Id.

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The factors weighing in favor of imposing a duty in Golden Spread Council also weigh in
favor of imposing a duty in this case. Just as the risk of sexual abuse was foreseeable to the GSC,
it was also foreseeable to AIFS. The AIFS Interviewer’s Handbook demonstrates that AIFS was
aware of the general risk of sexual abuse that the nature of its program–placing young adults in
camp counselor positions where they would work with children. While this awareness is not as
substantial as the GSC’s awareness of specific complaints of sexual assault against a particular
scoutmaster, for purposes of the duty element in a negligence claim, and contrary to AIFS’s
assertions in its Reply, only the general danger of harm, not the exact sequence of events, and the
particular plaintiff, need to be foreseeable. Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655
(Tex. 1999). Thus it is not necessary for AIFS to foresee the risk that Zirus, specifically, posed to
the children of Camp Stewart, but only that there was a risk of sexual abuse to children.
Additionally, the risk and likelihood of injury are similarly high in this case. Just as the
GSC was recommending an adult man to work closely with children, AIFS was also
recommending an adult man to work closely with children. Given the particular susceptibility of
young children, this factor weighs in favor of imposing a duty on AIFS. Further, AIFS’s ability
to control Zirus was substantially similar to the GSC’s ability to control the scoutmaster it
recommended. Neither organization had control over the day-to-day activities of the individuals
who ultimately committed the harm. However, both organizations had written obligations to
assist the entities that did have day-to-day control over the individuals with the placement of
those individuals. The GSC was obliged to assist its chartered organizations, such as the church,
with obtaining scoutmasters; similarly, AIFS agreed to work with camps in the United States to
facilitate the placement of participants in its program at those camps. This obligation weighs in

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favor of imposing at least a limited duty on AIFS with regard to acting reasonably when
recommending participants to American camps.
However, the above considerations must be weighed against the social utility of AIFS’s
conduct and the magnitude of the burden of imposing a duty on AIFS in this case. The social
utility of AIFS’s program is high; the organization facilitates cultural exchanges and learning by
matching up foreign nationals with their American counterparts at camps. However, the burden
of imposing a duty of reasonable care in this case is small, particularly in light of the fact that
AIFS has already undertaken a duty to perform at least some screening of its participants.
Accordingly, this Court finds that the balance of the above factors indicates that AIFS
had at least a limited duty of care with respect to the Plaintiffs, and as such summary judgment
cannot be granted on this claim.
B.

Whether AIFS breached its duty of care

Whether an imposed duty has been breached is generally a question of fact for the jury to
decide. TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 765 (Tex. 2009) (stating that negligence
is commonly a question of fact unless the evidence establishes a complete lack of negligence as a
matter of law). In this case, AIFS had a duty to use reasonable care in screening its applicants
and recommending them for placement. As mentioned above, AIFS obtained two reference
letters from Zirus; however, one of the letters was unsigned, in violation of AIFS policy. Further,
it is unclear whether AIFS contacted Zirus’ references to make sure they were valid; indeed the
Plaintiffs contend that the references were not previous employers, but were instead friends of
Zirus. This evidence is sufficient to create an issue of material fact concerning whether AIFS
breached its duty of reasonable care. As such, summary judgment cannot be granted on this
claim.

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C.

Whether AIFS’s breach was a proximate cause of the Plaintiffs’ harm

Because summary judgment cannot be granted on the first two elements of the Plaintiffs’
negligence claim, the Court turns to the final element of proximate cause. Proximate cause
consists of two components, (1) cause-in-fact; and (2) foreseeability. Akin, Gump, Strauss,
Hauer & Feld, L.L.P. v. National Development and Research Corp., 299 S.W.3d 106, 122 (Tex.
2009). Cause-in-fact is established by showing that the act or omission was a substantial factor in
bringing about the harm that occurred, and without which the harm would not have occurred. Id.
Foreseeability requires proof that the actor, as a person of ordinary intelligence, should have
anticipated the dangers that his negligent act created for others. Lee Lewis Const., Inc. V.
Harrison, 70 S.W.3d 778, 785 (Tex. 2001). Foreseeability requires the actor to anticipate only
the general character of the injury that might occur, not the specific manner in which the injury
will occur. Id.
A material question of fact exists concerning whether AIFS’s actions were a cause-in-fact
of the Plaintiffs’ harm. Because it is unclear what AIFS would have discovered if it had followed
up on Zirus’ references, it is similarly unclear whether or not AIFS would have still accepted
Zirus for participation in its program based on what it would have discovered from his
references. Accordingly, summary judgment cannot be granted on the basis of cause-in-fact.
Similarly, an issue of material fact exists concerning whether the harm to the Plaintiffs
was foreseeable. A crucial issue bearing on foreseeability in this case is whether Zirus’
intervening criminal actions amounted to a superseding cause. Generally, the intervening
criminal acts of a third party are a superseding cause of harm to another, even when the initial
actor’s conduct was negligent in creating a situation that allowed the third party to commit the
crime. Phan Son Van v. Pena, 990 S.W.2d 751, 753 (Tex. 1999) (citing the Restatement

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(Second) of Torts § 448 (1965)). However, the third party’s criminal conduct is not a
superseding cause if the initial actor, at the time of his negligent act, should have realized that his
negligence had created a situation in which a third party might avail himself of the ability to
commit a crime. Id. Thus when determining whether a third party’s intervening criminal acts
constitute a superseding cause, and thus whether the initial actor should have realized that his
actions created the likelihood for such criminal conduct, the Texas Supreme Court has held that
the following factors are relevant:
(a) the fact that the intervening force brings about harm different in kind from that which
would otherwise have resulted from the actor's negligence;
(b) the fact that the intervening force's operation or the consequences thereof appear after
the event to be extraordinary rather than normal in view of the circumstances existing at the time
of the force's operation;
(c) the fact that the intervening force is operating independently of any situation created
by the actor's negligence, or, on the other hand, is or is not a normal result of such a situation;
(d) the fact that the operation of the intervening force is due to a third person's act or to
his failure to act;
(e) the fact that the intervening force is due to an act of a third person which is wrongful
toward the other and as such subjects the third person to liability to him;
(f) the degree of culpability of a wrongful act of a third person which sets the intervening
force in motion.
Id. at 754.
In Pena, a gas station attendant sold alcohol to minors who were members of a gang. Id.
at 752. Those gang members then became intoxicated and later raped and murdered two girls. Id.

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The Texas Supreme Court utilized the above factors to find that the gas station’s sale of alcohol
to the minor gang members was not the proximate cause of the murders; the gang members’
criminal acts were a superseding cause because the harm of those acts, murder, was not the type
of harm that would normally result from the sale of alcohol to minors. Id. at 755.
Conversely, the Texas Supreme Court has found that there is no superseding cause when
the risk of harm that the actor’s conduct exposes the injured individual to actually occurs. Dew v.
Crown Derrick Erectors, Inc., 208 S.W.3d 448, 453 (Tex. 2006). In Dew, an oil rig worker was
killed when he fell through an inadequately protected ladder hole on the rig. Id. at 450. The
company in charge of installing the appropriate protections around the hole argued that it was
entitled to a jury instruction on new and independent cause because it was not foreseeable that
the temporary precautions it had placed around the hole would be altered by someone else. Id. at
452–53. The Court, relying on the Pena factors, held that such an instruction was not warranted
in this case because the harm that occurred, a worker falling through the hole, was a foreseeable
consequence of the inadequate, temporary precautions. Id. at 453. Thus, even though the original
precautions had been altered, because those original precautions were inadequate, their alteration
did not change the nature of the foreseeable risk, and thus was not a superseding cause. Id.
Considering the Pena factors, an issue of material fact exists regarding whether Zirus’s
assault on the Plaintiffs was a foreseeable risk of AIFS’s failure to contact his references. Sexual
assault on a child is certainly a foreseeable consequence of employing adult males as camp
counselors; as such this Court cannot conclude that the first three Pena factors, which all bear on
the extraordinary nature of the intervening act, are sufficiently satisfied so as to be exculpatory.
However, because Zirus’s acts were criminal, were wrongful to the Plaintiffs, and impose a large
degree of culpability on Zirus (at least as to the two minors’ assaults for which he pled guilty),

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this Court also cannot say that the last three Pena factors are necessarily inculpatory.
Accordingly, a determination based on these factors is properly for the jury. Because material
issues of fact exist regarding both cause-in-fact and foreseeability, summary judgment cannot be
granted on the basis of proximate cause.
The Court finds that AIFS owed the Plaintiffs at least a limited duty, and also finds that
there are material issues of fact with regard to whether that duty was breached and with regard to
whether any breach was the proximate cause of the Plaintiffs harm. Accordingly, summary
judgment against the Plaintiffs’ negligent failure to warn claim is DENIED.
III.

The Plaintiffs’ aiding and abetting claim
The Plaintiffs have not addressed their aiding and abetting claim in their Response to

AIFS’s summary judgment motion; as such, the Court focuses primarily on the Plaintiffs’ aiding
and abetting claim as set forth in their Second Amended Complaint. In that complaint, the
Plaintiffs allege that AIFS aided and abetted Camp Stewart in Camp Stewart’s breach of its
fiduciary duty to put the interests of the Plaintiffs ahead of its own, and to disclose all material
facts to the Plaintiffs and their parents. Assuming, but not deciding, that these allegations are
factually sufficient to state at least some type of aiding and abetting claim, the Court nevertheless
grants summary judgment because the Plaintiffs have failed to present an issue of material fact.
While the question of a person or entity’s liability for the tortious actions of another is
somewhat unclear in Texas, federal courts have recognized that various theories of civil liability
for the actions of another have been included in the broad category of liability known as
concerted tortious action. See e.g., Halberstam v. Welch, 705 F.2d 472, 476 (D.C. Cir. 1983).
Included in this broad category are claims brought under a theory of aiding and abetting. Id. The
Fifth Circuit, in the securities law context, has articulated the elements of an aiding and abetting

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claim: (1) some other party has committed a law violation; (2) the accused party had general
awareness that his role was part of an overall activity that was improper; and (3) the accused
party knowingly and substantially assisted the violation. See Woodward v. Metro Bank of Dallas,
522 F.2d 84, 94–95 (5th Cir. 1975).
While Texas has not precisely articulated an aiding and abetting theory of liability, Texas
does recognize an entity’s liability to a third party for another entity’s breach of its fiduciary
duty. Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 509, 514 (Tex. 1942) (holding that
when a third party knowingly participates in the breach of a duty of a fiduciary, that third party
becomes a joint tortfeasor with the fiduciary and is liable as such). Importantly, however, Texas
has refused to expressly create a cause of action based on concert of action. Juhl v. Airington,
936 S.W.2d 640, 643 (Tex. 1996). Despite refusing to recognize a claim based on a theory of
concert of action, Texas courts have nevertheless analyzed the concert of action question by
relying on the Restatement (Second) § 876 for a formulation of the elements that make up a
concert of action claim.. See e.g., Juhl, 936 S.W.2d at 643 (utilizing § 876 to analyze, but
ultimately reject, police officer’s concert of action claim against group of protestors outside of
an abortion clinic); Gaulding v. Celotex Corp., 772 S.W.2d 66, 69 (Tex. 1989) (citing § 876 as
recognizing concert of action theory, but declining to extend that type of liability to latent disease
product liability cases); III Forks Real Estate, L.P. v. Cohen, 228 S.W.3d 810, 815 (Tex. App.–
Dallas 2007) (utilizing § 876 to analyze, but again ultimately reject, real estate agency’s claim
against guarantor’s wife). Because Texas courts have shown a willingness to undergo an analysis
of purported concert of action claims, it would appear that Texas is open to recognizing a claim
based on concert of action, should a plaintiff succeed in proving the requisite elements.

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However, the Texas cases also demonstrate that the Plaintiffs have not succeeded in
satisfying the potential burden that the Texas courts would place on them. The Texas Supreme
Court has stated that if it were to adopt § 876(a), the “common design” concert of action liability;
it would require allegations of specific intent, or at least gross negligence, to state a cause of
action. Juhl, 936 S.W.2d at 644. The Court has also addressed “substantial assistance” concert of
action liability, noting that comment d. of § 876 listed five factors to consider when determining
whether a defendant gave substantial assistance to the wrongdoer: (1) the nature of the wrongful
act; (2) the kind and amount of assistance; (3) the relation of the defendant and the actor; (4) the
presence or absence of the defendant at the occurrence of the wrongful act; and (5) the
defendant’s state of mind. Id. Further, the Court has noted that the purpose of the concert of
action theory is to deter antisocial or dangerous behavior. Id. (citing cases where concert of
action liability was used to hold individuals liable for group assault, drag racing, and
encouragement of reckless driving).
In Juhl, a police officer brought a tort claim against a group of anti-abortion protestors for
a back injury the officer allegedly sustained while trying to move a member of the group . Id. at
641. The Texas Supreme Court, in affirming the lower court’s grant of summary judgment,
declined to recognize the officer’s concert of action claim on both “common design” grounds
and on “substantial assistance” grounds. Id. at 644–45. The Court stated that the officer’s
allegations of negligence were not sufficient to state a claim for “common design” liability. Id. at
644. The Court also found that the five “substantial assistance” factors did not weigh in favor of
a finding that the anti-abortion protestors substantially assisted the individual who caused the
officer’s back injury. Id. at 645. The Court noted that the type of conduct, passively resisting
arrest, was not the highly dangerous antisocial behavior likely to cause serious injury or death

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sought to be deterred by a concert of action theory of liability. Id. Further, the Court noted that
the relationships among the members of the group were too tenuous to impose concert of action
liability: no member of the group had a right to control any other member, and each member was
given his own choice regarding how to respond to police action. Id.
Similarly, the Dallas Court of Appeals, relying heavily on the Texas Supreme Court’s
decision in Juhl, affirmed the lower court’s grant of summary judgment against a real estate
agency by holding that a guarantor’s wife could not be held liable under a concert of action
theory because she did not render substantial assistance to her husband. III Forks Real Estate,
228 S.W.3d at 816. In that case, the plaintiff, a real estate agency, was seeking to recover the
balance of a defaulted lease from the guarantor. Id. at 813. The real estate agency alleged that the
guarantor had made false representations of his finances to the previous holder of the lease, and
sought to hold the guarantor’s wife liable based on a theory of concert of action. Id. The court
first noted that whether Texas recognized a concert of action theory of liability was an open
question. Id. at 815. The court then proceeded to find that the real estate agency’s allegation that
the guarantor’s wife was liable under a “common design” theory of concert of action liability,
because she conferred upon her husband the authority to act for their marital estate, was not
sufficient to state a claim for that kind of liability. Id. Next, the court addressed the “substantial
assistance” theory of liability, utilizing the five factors articulated in Juhl, and concluding that
those factors did not weigh in favor of finding that the guarantor’s wife substantially assisted her
husband. Id. at 816. Specifically, the court found that the guarantor’s wife did not give the
requisite type of assistance necessary for a valid concert of action claim predicated on substantial
assistance: the wife had authorized the husband to act for the marital estate; she had not assisted
in preparing or furnishing the financial information for the lease. Id. Further, the wife possessed

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no right to control her husband’s actions with regard to the furnishing of the financial statement.
Id.
Just as the police officer in Juhl and the real estate agency in III Forks Real Estate failed
to create issues of material fact with regard to the purported elements of a concert of action
claim, the Plaintiffs also fail to create an issue of material fact with regard to their aiding and
abetting claim. As noted above, it appears that Texas courts consider civil aiding and abetting
claims as concert of action claims. The Plaintiffs have failed to state a claim for “common
design” concert of action liability. While their complaint does include an allegation of gross
negligence, that allegation is simply a legal conclusion, and is not supported by facts that could
support a “common design” claim.
The Plaintiffs have also failed to demonstrate that the five substantial assistance factors
weigh in their favor. Specifically, while the failure of an organization to adequately screen camp
counselors could result in serious injury, this failure is not akin to the types of highly dangerous
activities, such as group assault and drag racing, for which concert of action liability is usually
reserved. Further, and like the assistance given by the wife in III Forks Real Estate, the type of
assistance given by AIFS was not the requisite type of assistance necessary to impose concert of
action liability. AIFS simply provided Camp Stewart with assistance in finding camp counselors;
the final decision with regard to hiring those counselors, and responsibility for conducting an
independent review of those counselors, remained with Camp Stewart. Additionally, and like the
anti-abortion protestors in Juhl, AIFS did not possess a sufficient right to control Camp Stewart’s
actions to justify imposing concert of action liability on it, because Camp Stewart’s
responsibilities with regard to the ultimate employment of the camp counselors made available to
it by AIFS placed the right to control those counselors exclusively with Camp Stewart. Finally,

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AIFS was not present when Zirus sexually abused the Plaintiffs, nor did it possess the requisite
state of mind with regard to assisting Camp Stewart’s breach of its duties.
Because the Plaintiffs have failed to state a claim for “common design” concert of action
liability, and because the five factors that must be considered when deciding whether to impose
“substantial assistance” concert of action liability do not weigh in favor of its imposition, the
Court finds that the Plaintiffs have failed to create an issue of material fact with regard to their
aiding and abetting claim.
Conclusion
Defendant’s motion for summary judgment (docket no. 126) is denied in part and granted
in part. The Court finds that there exists an issue of material fact with regard to the negligent
failure to warn claim. Defendant’s motion for summary judgment regarding that claim is denied.
The remainder of Defendant’s motion is granted.
AIFS’s motion to strike (docket no. 154) is dismissed as moot inasmuch as the Court did
not rely upon the contested exhibits in deciding this motion.
SIGNED this 29th day of August, 2012.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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