Lozano v. Baylor University et al

Filing 20

ORDER re GRANTING IN PART/DENYING IN PART 15 Opposed MOTION for Leave to File Motion for Leave to Amend Complaint filed by Dolores Lozano, GRANTING 5 MOTION to Dismiss Plaintiff's Original Complaint filed by Baylor University. Signed by Judge Robert Pitman. (jgb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
DOLORES LOZANO,
Plaintiff,
v.
BAYLOR UNIVERSITY and
BAYLOR BOARD OF REGENTS,
Defendants.

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6:16-CV-403-RP

ORDER
Before the Court in the above-entitled action are Defendant’s Motion to Dismiss, (Dkt. 5),
and Plaintiff’s Opposed Motion for Leave to File Amended Complaint, (Dkt. 15). Having
considered the motion and responsive filings thereto, relevant law, and the case file, the Court issues
the following order.
I. BACKGROUND
Plaintiff Dolores Lozano (“Plaintiff”) filed suit against Defendants Baylor University
(“Baylor”) and the Baylor University Board of Regents (“the Board of Regents”) (collectively,
“Defendants”) on October 11, 2016. (Compl., Dkt. 1). Plaintiff’s complaint alleges violations of
Title IX of the Education Amendments Act of 1972 (“Title IX”), 20 U.S.C. § 1681, et seq., as well as
the Texas common law doctrines of negligence and gross negligence. (Id. ¶ 7, 9). These claims stem
from multiple alleged assaults of Plaintiff by Devin Chafin, then a student-athlete and member of
Baylor’s football team. (Id. ¶¶ 13–63).
Baylor filed a Motion to Dismiss on December 22, 2016. (Dkt. 5). Plaintiff filed the instant
motion on July 26, 2017. (Dkt. 15). She seeks leave to file her First Amended Complaint, which (1)
removes the Board of Regents as a defendant; (2) adds a claim under the Texas common law
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doctrine of negligent hiring, retention, training, and supervision; and (3) “adds factual and
procedural developments that have occurred since the original complaint was filed.” (Id. ¶ 1; Prop.
Am. Compl., Dkt. 16). Baylor objects. (Resp., Dkt. 18).
II. LEGAL STANDARDS
Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a Rule 12(b)(6) motion to dismiss,
a complaint ‘does not need detailed factual allegations,’ but must provide the [plaintiff’s] grounds for
entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to
relief above the speculative level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “[A] motion to dismiss under 12(b)(6) ‘is
viewed with disfavor and is rarely granted.’” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011)
(quoting Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)).
Leave to file an amended pleading “shall be freely given when justice so requires,” but “is by
no means automatic.” Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993) (quoting Fed. R.
Civ. P. 15(a)). In deciding whether to grant leave to file an amended pleading, a district court may
consider factors such as undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party, and futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); Wimm, 3 F.3d at
137, 139. In assessing futility of amendment, the Court should consider whether the proposed
amendment could survive a motion to dismiss. Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 873
(5th Cir. 2000) (“[W]e join our sister circuits that have interpreted [futility] to mean that the
amended complaint would fail to state a claim upon which relief could be granted.”).
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III. DISCUSSION
Baylor argues that Plaintiff’s motion for leave to amend should be denied because her
proposed amendments are futile. (Resp., Dkt. 18, at 1). Specifically, the university asserts that (1)
“Plaintiff’s claims remain time-barred”; (2) “none of [Plaintiff’s] allegations regarding a non-sexual
assault invoke Title IX”; and (3) “the new claim alleging negligent hiring, retention, and supervision
does not state a viable claim under Texas law.” (Id.). The Court considers each of these arguments in
turn, incorporating analysis regarding Baylor’s motion to dismiss as appropriate.
A. Statute of Limitations
Baylor maintains that Plaintiff’s Title IX and negligence claims are subject to Texas’s twoyear statute of limitations and that Plaintiff’s claims therefore must have accrued no later than the
spring semester of 2014. (Resp., Dkt. 18, at 2). In support of this argument, the university argues
that “Plaintiff claims that she reported the alleged assault to several school officials more than two
years before she sued” and that she has not “add[ed] any factual assertions that would alter her
allegations that she knew that the accused was a Baylor football player and that she knew that Baylor
personnel did not respond to her reports.” (Id.).
The Court agrees that Plaintiff’s claims are subject to Texas’s two-year statute of limitations.
King–White v. Humble Indep. Sch. Dist., 803 F.3d 754, 759–61 (2015); Tex. Civ. Prac. & Rem. Code
Ann. § 16.003. It does not necessarily follow, however, that her claims are time-barred.
“Absent tolling, the limitations period runs from the moment a plaintiff’s claim ‘accrues,’”
and while the limitations period is borrowed from state law, “the particular accrual date of a federal
cause of action is a matter of federal law.” King-White, 803 F.3d at 762 (quoting Frame v. City of
Arlington, 657 F.3d 215, 238 (5th Cir. 2011)). “[U]nder federal law, a claim accrues and the limitations
period begins to run the moment the plaintiff becomes aware that he has suffered an injury or has

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sufficient information to know that he has been injured.” Id. (quoting Spotts v. United States, 613 F.3d
559, 574 (5th Cir. 2010)).
“[A] plaintiff’s awareness encompasses two elements: (1) [t]he existence of the injury; and (2)
causation, that is, the connection between the injury and the defendant’s actions.” Id. (quoting
Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 1995)). “‘[A]wareness’ [of the existence of the
injury and causation] . . . does not mean actual knowledge; rather, all that must be shown is the
existence of ‘circumstances [that] would lead a reasonable person to investigate further.’” Id.
(quoting Piotrowski, 237 F.3d at 576). Thus, for awareness of causation, a plaintiff “must have
knowledge of facts that would lead a reasonable person (a) to conclude that there was a causal
connection . . . or (b) to seek professional advice, and then, with that advice, to conclude that there
was a causal connection between the [defendant’s acts] and injury.” Harrison v. United States, 708 F.2d
1023, 1027 (5th Cir. 1983).
Plaintiff states that she was first assaulted by Chafin in March 2014 and that she reported the
assault to Jeff Lebby (“Lebby”), a coach with the Baylor football team, “shortly after [the assault’s]
occurrence.” (Compl., Dkt. 1, ¶¶ 17–20; Prop. Am. Compl., Dkt. 16, ¶¶ 15–18). She alleges that the
assault was subsequently reported to Acrobatics & Tumbling Head Coach LaPrise Harris-Williams
(“Williams”), Associate Athletics Director Nancy Post, Baylor Sports Chaplain Wes Yeary (“Yeary”),
and Baylor University President and Chancellor Kenneth Starr. 1 (Compl., Dkt. 1, ¶¶ 28–29, 37;
Prop. Am. Compl., Dkt. 16, ¶¶ 26–27, 35, 39). Plaintiff states that Chafin assaulted her again on
April 5, 2014, (Compl., Dkt. 1, ¶ 41; Prop. Am. Compl., Dkt. 16, ¶ 42), and that she reported the
assault to Baylor’s on-campus medical clinic and counseling center, (Compl., Dkt. 1, ¶¶ 44–46; Prop.
Am. Compl., Dkt. 16, ¶¶ 46–48). Chafin allegedly assaulted Plaintiff a third time later in the same

1

Plaintiff’s original complaint includes no allegations regarding Starr.

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month, prompting her to again reach out to Williams and Yeary. (Compl., Dkt. 1, ¶¶ 55–56; Prop.
Am. Compl., Dkt. 16, ¶¶ 57–58).
1. Heightened-Risk Claims
Because Plaintiff makes assertions that implicate the heightened-risk claims at issue in related
cases (and because Baylor has not asserted that those heightened-risk claims were inadequately pled),
the Court first turns to the application of the statute of limitations to those claims.
Plaintiff alleges that, despite being assaulted in 2014, she “did not become aware that Baylor
was required to have a Title IX process until May of 2016, when an [i]nternal [a]udit of the Pepper
Hamilton investigation was published.” (Compl., Dkt. 1, ¶ 60; Prop. Am. Compl., Dkt. 16, ¶ 65–66
(“Plaintiff had no reason to know or reason to investigate . . . Defendant’s obligations under Title IX
. . . [or] the protections she was entitled to under Title IX until May of 2016.”)).
However, the question is not when Plaintiff knew that she had a legal cause of action. KingWhite, 803 F.3d at 762. Instead, the question is when she knew of “the facts that would ultimately
support a claim.” Id. Had Plaintiff alleged that she did not know of a potential causal connection
between Baylor’s action (or inaction) and her assaults until the spring of 2016, the statute of
limitations may have been tolled. See Jane Doe 1 et al. v. Baylor University, No. 6:16-CV-173, 2017 WL
1831996, at *10 (W.D. Tex. March 7, 2017). However, her allegations focus on her knowledge
regarding the protections to which she was entitled under Title IX. Because her arguments rely
exclusively on when she learned of Baylor’s obligations under Title IX, the Court cannot find that
Plaintiff’s heightened-risk claims accrued late enough to bring her action within the applicable
statute of limitations.
2. Post-Reporting Claims
As noted above, Plaintiff alleges that she was assaulted three times during the spring
semester of 2014. The third alleged assault occurred in late April, although the exact date of the
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incident is unclear. (Compl., Dkt. 1, ¶ 55; Prop. Am. Compl., Dkt. 16, ¶ 57). Plaintiff alleges that she
informed Williams and Yeary of that assault. (Compl., Dkt. 1, ¶ 56; Prop. Am. Compl., Dkt. 16,
¶ 58). Within some reasonable time after those reports, at the very latest, Plaintiff would have
understood that Baylor’s deliberate indifference was the cause of her post-reporting injuries or could
reasonably have been expected to “inquire further.” See King-White, 803 F.3d at 761–63; see also
Samuelson v. Or. State Univ., 162 F. Supp. 3d 1123, 1127, 1134 (D. Or. 2016) (finding that a plaintiff
was time-barred from bringing a claim because she “learned of [the university’s] deliberate
indifference to her report of rape when [the university] was in fact deliberately indifferent to her
own report of the assault”).
The Court has previously declined to find that the statute of limitations barred the postreporting claims of plaintiffs who were assaulted in April 2014 but did not file suit against Baylor
until June 2016. Jane Doe 1 et al., 2017 WL 1831996, at *11. In doing so, the Court noted that it was
“quite possible that [one of the plaintiff’s] claim did not accrue until the fall semester.” Id. Here,
however, Plaintiff did not file suit until October 11, 2016. Plaintiff has alleged no facts supporting an
inference that her communications with Baylor could conceivably have extended the relevant time—
specifically, the time at which she would have understood that Baylor’s deliberate indifference was
the cause of her post-reporting injuries or could reasonably have been expected to inquire further—
through October of the semester following her assaults.
3. Negligence and Gross Negligence Claims
Plaintiff’s original complaint asserted claims under the Texas common law doctrines of
negligence and gross negligence. (Compl., Dkt. 1, ¶¶ 77, 88). Baylor argues in its motion to dismiss
that those claims were time-barred, (Mot. Dismiss, Dkt. 5, at 13), and now maintains that the
proposed amended complaint does not cure that defect, (Def. Resp. Mot. Leave, Dkt. 18, at 2).

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Specifically, Baylor argues that “the relevant knowledge for purposes of accrual is the plaintiff’s
knowledge of her own assault.” (Mot. Dismiss, Dkt. 5, at 13).
The Court is unpersuaded. Plaintiff’s negligence claims involve not just her own assaults, but
also Baylor’s “duty to provide assistance after acts of violence have occurred.” (Compl., Dkt. 1, ¶ 83;
Prop Am. Compl., Dkt. 16, ¶ 97). While Baylor insists that “the relevant knowledge for purposes of
accrual is the plaintiff’s knowledge of her own assault,” (Mot. Dismiss, Dkt. 5, at 13), it supports that
assertion with a case in which the plaintiffs alleged they were assaulted by the defendant. Bradly v.
Phillips Petroleum Co., 527 F. Supp. 2d 625, 640 (S.D. Tex. 2007). Here, Plaintiff was assaulted by a
third party; her negligence claims involve Baylor’s actions leading up to and following that assault.
As Baylor has not provided any additional arguments in support of its position, the Court declines to
find that Plaintiff’s negligence claims are time-barred.
4. Equitable Tolling
Plaintiff argues that the Court should toll the statute of limitations for claims it would
otherwise find to be time-barred. (Pl.’s Resp. Mot. Dismiss, Dkt. 7, at 10 (“[E]quitable tolling
principles such as the discovery rule and fraudulent concealment . . . forestall the expiration of the
limitations period.”)).
With respect to the application of the discovery rule, which the Court considers only in
relation to Plaintiff’s heightened-risk claims, 2 the Court is again constrained by Plaintiff’s focus on
when she was “made aware of Defendant’s obligations pursuant to Title IX.” (See, e.g., id. at 13–15).
Plaintiff alleges that Defendants’ dismissive attitude toward her reports represents a “cold display of
indifference,” (see id. at 13), but indifference is not the relevant standard. Rather, Plaintiff must show
that “the nature of the injury incurred [was] inherently undiscoverable.” King-White v. Humble Ind.
School. Dist., 803 F.3d 754, 764 (5th Cir. 2015). “‘Discovery’ does not mean ‘actual knowledge of the
In no situation would the discovery rule toll the statute of limitations with respect to Plaintiff’s post-reporting claims,
as she was necessarily aware of those injuries when they occurred.
2

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particulars of a cause of action,’ but whether the plaintiff has ‘knowledge of facts which would cause
a reasonable person to diligently make inquiry to determine his or her legal rights.’” Winters v.
Diamond Shamrock Chem. Co., 149 F.3d 387, 402–03 (5th Cir. 1998) (quoting Vaught v. Showa Denko
K.K., 107 F.3d 1137, 1140, 1141–42 (5th Cir. 1997)). Because Plaintiff’s arguments relate only to
when she learned of her rights under Title IX, the Court is unable to conclude that the discovery
rule should operate to toll the statute of limitations.
The Court now turns to the doctrine of fraudulent concealment, which could apply both to
Plaintiff’s heightened-risk and post-reporting claims. Fraudulent concealment is an equitable
doctrine that acts to toll the statute of limitations after a cause of action accrues. BP Am. Prod. Co. v.
Marshall, 342 S.W.3d 59, 67 (Tex. 2011). The doctrine requires a plaintiff to show that the defendant
“actually knew a wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the
wrong.” Shell Oil Co. v. Ross, 356 S.W.3d 924, 927 (Tex. 2011).
With respect to Plaintiff’s heightened-risk claims, the Court is unconvinced that the doctrine
of fraudulent concealment could apply. Nowhere does Plaintiff allege any facts—or, indeed, make
any substantive argument—suggesting that Baylor deceitfully concealed its wrongdoing. The Court
is, yet again, hamstrung by Plaintiff’s focus on when she was made aware of Defendant’s obligations
under Title IX.
Plaintiff makes more detailed arguments regarding the applicability of the fraudulent
concealment doctrine to her post-reporting claims. Specifically, she asserts that her report of the first
incident to Lebby, who “did nothing at all,” “supports the assertion that either Lebby denied that
the Plaintiff was physically abused or that he discouraged the Plaintiff from pursuing the matter
because he erroneously believed that [Chafin] did nothing wrong”; that the “extreme degree of
indifference” and lack of investigation following reports to Post “supports the assertion that Post
denied that the Plaintiff was physically abused or did not follow up whatsoever based on the belief
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that [Chafin] did nothing wrong”; and that Yeary’s response to Plaintiff’s reports “supports the
assertion that Yeary also denied the Plaintiff was physically abused or did not follow up whatsoever
based on the belief that [Chafin] did nothing wrong.” (Pl.’s Resp. Mot. Dismiss, Dkt. 7, at 14).
According to Plaintiff, these assertions illustrate that Baylor staff attempted to deceive Plaintiff into
thinking “that there was no basis for her to pursue a legal cause of action.” (Id. at 15).
The doctrine of fraudulent concealment, however, requires Plaintiff to show that Defendant
did in fact conceal the wrong in question—that is, that she was in fact deceived into thinking that
she was not injured by Baylor’s response to her reports of sexual assault. 3 As Plaintiff has not made
any allegations or argument on that point, the Court must conclude that she is not entitled to the
protection of the fraudulent concealment doctrine.
Given the above analysis, the Court concludes that Plaintiff’s Title IX claims are time-barred.
With respect to those claims, Plaintiff’s Motion for Leave to Amend is DENIED and Baylor’s
Motion to Dismiss is GRANTED. Plaintiff’s negligence and gross negligence claims, however, are
not necessarily time-barred. With respect to those claims, the disposition of Plaintiff’s Motion for
Leave to Amend and Baylor’s Motion to Dismiss depends on the parties’ arguments on the merits.
B. Negligence and Gross Negligence
The Court’s jurisdiction over Plaintiff’s state law claims is supplemental to its federal
question jurisdiction. 28 U.S.C. § 1367(a). A federal court exercising supplemental jurisdiction over
state law claims must apply the substantive law of the state in which it sits. Sommers Drug Stores Co.
Emp. Profit Sharing Trust v. Corrigan, 883 F.2d 345, 353 (5th Cir. 1989) (citing Erie Railroad v. Tompkins,
304 U.S. 64, 58 (1938)). As a result, this Court must apply Texas law to the state law claims discussed

Contrary to Defendant’s assertions, the relevant inquiry is not whether Plaintiff was deceived into thinking that she had
not been abused. The cases Baylor cites in support of that proposition involve situations in which the abuser was an
employee of the defendant. See Doe v. St. Stephen’s Episcopal Sch., 382 F. App’x 386, 390 (5th Cir. 2010); Doe v. Roman
Catholic Archdiocese of Galveston-Hous. ex rel. Dinardo, 362 S.W.3d 803, 814 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
The instant case relies on a different theory of liability.

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herein. In resolving issues of Texas state law, federal courts look to decisions of the Texas Supreme
Court. Hux v. S. Methodist Univ., 819 F.3d 776, 780 (5th Cir. 2016). If that court has not ruled on the
issue, the federal court must make what is known as an “Erie guess”—that is, it must predict what
the Texas Supreme Court would do if faced with the facts currently before the federal court. Id.
Generally, state intermediate courts’ decisions are the strongest indicator of what a state supreme
court would do. Id. at 780–81.
In Texas negligence law, liability “is premised on duty, a breach of which proximately causes
injuries, and damages resulting from that breach.” Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex.
1999). Whether a legal duty exists is therefore a threshold question; if there is no duty, there can be
no liability. Id. In evaluating the existence of a legal duty, courts may consider the existence of either
a general duty or special duty.
1. General Duty
As a general matter, there is no duty to control the conduct of third persons. See Greater
Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). However, in determining whether a
defendant was under a duty, a court may consider several interrelated factors. Id. These include the
“risk, foreseeability, and likelihood of injury [to plaintiff] weighed against the social utility of the
actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences
of placing the burden on the defendant.” Id. Of these, foreseeability is the most important
consideration. Id.
Generally speaking, “a person has no legal duty to protect another from the criminal acts of
a third person.” Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). Plaintiff urges the Court to
disregard that principle here, arguing that “there are exceptions to this rule.” (Pl.’s Resp. Mot.
Dismiss, Dkt. 7, at 18). She focuses, in particular, on foreseeability. (Id.). However, the Texas
Supreme Court has made clear that “[f]oreseeability is the beginning, not the end, of the analysis in
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determining the extent of the duty to protect against criminal acts of third parties.” Lefmark Mgmt.
Co. v. Old, 946 S.W.2d 52, 59 (Tex. 1997). “[O]nce foreseeability is established, ‘the parameters of the
duty must still be determined.’” UDR Tex. Props., L.P. v. Petrie, 517 S.W.3d 98, 101 (quoting
Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.3d 749, 756 (Tex. 1998)).
“In determining whether the occurrence of certain criminal conduct on a landowner’s
property should have been foreseen,” courts applying Texas law “should consider whether any
criminal conduct previously occurred on or near the property, how recently it occurred, how often it
occurred, how similar the conduct was to the conduct on the property, and what publicity was given
the occurrences to indicate that the landowner knew or should have known about them.” Timberwalk
Apartments, Partners, Inc. v. Cain, 972 S.W.3d 749, 757 (Tex. 1998). If a court determines that the
instance of criminal conduct in question was foreseeable, it must then consider the unreasonableness
of the risk of the conduct’s occurrence. UDR Tex. Props., 517 S.W.3d at 102. “A risk is unreasonable
when the risk of a foreseeable crime outweighs the burden placed on property owners—and society
at large—to prevent the risk.” Id. at 103.
In the instant case, Plaintiff alleges three assaults by Chafin. The first occurred in March
2014 at Chafin’s Baylor-owned apartment. (Compl., Dkt. 1, ¶ 18; Prop. Am. Compl., Dkt. 16, ¶¶ 13,
16). The second occurred in April 2014 at Scruffy Murphy’s, a restaurant and bar not owned by
Baylor. (Compl., Dkt. 1, ¶¶ 41–42; Prop. Am. Compl., Dkt. 16, ¶ 44). The third, which occurred
later in April, took place at the same Baylor-owned apartment referenced above. (Compl., Dkt. 1,
¶ 55; Prop. Am. Compl., Dkt. 16, ¶ 57). Even adopting Plaintiff’s proposed theory, Baylor could not
be held responsible for the first or second assaults. It is conceivable, however, that the factors Texas
courts use to assess foreseeability—proximity, recency, frequency, similarity, and publicity—would
permit a court to conclude that Plaintiff’s third assault was foreseeable by Baylor. The analysis, then,
turns on whether the risk to Plaintiff was unreasonable—that is, whether it would be preferable to
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impose upon Baylor, as a property owner, the burdens necessary to prevent or reduce the risk of the
crime in question than to accept the risk that such a crime could occur. UDR Tex. Props., 517 S.W.3d
98 at 103. Plaintiff offers no argument regarding the unreasonableness of the risk that she would be
assaulted by Chafin a third time. 4 The Court, though troubled by Plaintiff’s allegations and injuries,
cannot conclude that Baylor owed Plaintiff a general duty under Texas negligence law. See, e.g., Del
Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 769–70 (finding the risk of criminal conduct
unreasonable when a bar fight broke out and the bar “had actual and direct knowledge that a violent
brawl was imminent” and noting that the “duty arose not because of prior similar criminal conduct
but because [the premises] was aware of an unreasonable risk of harm at the bar that very night”).
2. Special Duty
The general rule that there is no duty to control the conduct of third persons does not apply
when a special relationship exists between the actor and the third person that imposes a duty on the
actor to control the third person’s conduct. Phillips, 801 S.W.2d at 525. Such special relationships
traditionally include those between an employer and employee or between a parent and child. Id.
Here, Plaintiff argues that a special relationship exists between Baylor and its students. (Pl.’s Resp.
Mot. Dismiss, Dkt. 7, at 19). The Court disagrees.
The Texas Supreme Court, while noting that universities may be held liable for negligent
failure to protect in some circumstances, has not specifically addressed the special relationship
doctrine in the context of students and universities. See generally Delaney v. Univ. of Houston, 835
S.W.2d 56 (Tex. 1992) (reversing a trial court’s grant of summary judgment to a college and leaving
open the possibility that the university could be liable for failing to replace defective locks on the

4 UDR, the case relied on by the Court for much of this analysis, was not decided until after Plaintiff filed her response
to Baylor’s Motion to Dismiss. The UDR court, however, noted both that (1) the Texas Supreme Court’s “precedents
are unambiguous: the foreseeability and unreasonableness inquiries are distinct”; and (2) the individual assaulted in that
case “ha[d] been on notice at every stage of this case that he must argue and offer evidence of unreasonableness.” UDR
Tex. Props., 517 S.W.3d 98 at 103.

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doors of a dormitory, thereby enabling an intruder to enter and sexually assault a student).
Intermediate Texas courts, however, have declined to hold that the relationship between a private
university and its adult students constitutes a special relationship, see Boyd v. Tex. Christian Univ., Inc.,
8 S.W.3d 758, 760 (Tex. App.—Fort Worth 1999, no writ), as have most courts surveying state law
on this issue, see, e.g., Freeman v. Busch, 349 F.3d 582, 587–88 (8th Cir. 2003) (“[S]ince the late 1970s,
the general rule is that no special relationship exists between a college and its own students because a
college is not an insurer of the safety of its students”).
Because the Court is bound to follow state negligence law, it concludes that Baylor had no
duty to Plaintiff and therefore cannot be held liable for either negligence or gross negligence. With
respect to these claims, Defendant’s Motion to Dismiss is GRANTED. Because no facts in
Plaintiff’s Proposed Amended Complaint cure that defect, the proposed amendment is futile. As to
these claims, Plaintiff’s Motion for Leave to Amend is therefore DENIED.
C. Negligent Hiring, Retention, Training, and Supervision
The Court turns now to whether Plaintiff’s proposed amended complaint states a viable
claim for negligent hiring, retention, and supervision under Texas law.
Plaintiff alleges that Baylor breached its duty, as an employer, to adequately hire, train, and
supervise employees. (Prop. Am. Compl., Dkt. 16, at 17). Her proposed amended complaint states
that the university “failed to adequately train, make aware, or inform” employees—including
Associate Athletics Director Nancy Post, Sports Chaplain Wes Yeary, and Football Running Back
Coach Jeff Lebby—as to “any Title IX procedures or policies,” (id. ¶ 108), and failed to adequately
supervise those employees with respect to the same procedures or policies, (id. ¶ 109). 5 She argues
that Baylor failed to meet the standard of care for universities in hiring, retaining, training, and

Plaintiff makes similar allegations with respect to an individual named “Whipple,” but neither provides that individual’s
full name nor identifies his or her position at Baylor. (Prop. Am. Compl., Dkt. 16, ¶¶ 107–09).

5

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supervising its employees “by failing to comply with [f]ederal and [s]tate law,” (id. ¶ 112), and that
she suffered damages as a “direct proximate result” of Baylor’s breach of its duty, (id. ¶ 113).
“To establish a claim for negligent training, a plaintiff must prove that a reasonably prudent
employer would have provided training beyond that which was given and that failure to do so
caused his injuries.” Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex. App.—Fort Worth 2008, no
pet.). Plaintiff’s proposed amended complaint seeks to meet that burden by pointing to Baylor’s
alleged failure to comply with state and federal law. (Prop. Am. Compl., Dkt. 16, ¶ 112). Plaintiff
alleges that Baylor failed to:
•

“Properly hire, train and retain officers, staff and faculty as to proper methods to deal
with reports of assaults, investigate same and accommodate victims accordingly”;

•

“Assure adequate staff training to meet the behavior and social needs of all individuals,
including assault victims”;

•

“Supervise faculty and staff to ensure proper supervision, control, restraint and
monitoring of student athletes”;

•

“Appropriately monitor to ensure that student athletes are not brought [onto] campus
without regard to the safety of other students”; and

•

“Implement safeguards for female employees adequate to protect them from foreseeable
criminal and anti-social activities.”

(Id. ¶ 119).
In response, Baylor argues that Plaintiff’s efforts to base her negligence claims “on an alleged
failure to comply with Title IX or federal regulatory guidance” is a “backdoor attempt at negligence
per se [and] a misguided effort to get around Title IX’s requirement that plaintiffs prove ‘deliberate
indifference,’ a higher standard than negligence.” (Resp., Dkt. 18, at 8). Plaintiff makes no argument
in response, save that the issue is “particularly deserving of full briefing through the appropriate
motions.” (Reply, Dkt. 19, at 5).
The Court agrees with Plaintiff. It is, at this stage, unclear that Plaintiff’s negligent hiring,
retention, training, and supervision claims would necessarily not survive a motion to dismiss and
that granting leave to amend and add those claims should therefore be denied as futile. With respect
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to the portion of the proposed amended complaint involving those claims, Plaintiff’s Motion for
Leave to Amend is therefore GRANTED.
IV. CONCLUSION
For the reasons stated herein, IT IS HEREBY ORDERED that:
•

With respect to Plaintiff’s Title IX claims, negligence claims, and gross negligence claims,
Plaintiff’s Motion for Leave to Amend is DENIED and Baylor’s Motion to Dismiss is
GRANTED; and

•

Plaintiff’s Motion for Leave to Amend is GRANTED with respect to her claim for
negligent hiring, retention, and supervision.

IT IS FURTHER ORDERED that Plaintiff file her First Amended Complaint, consistent
with the terms of this order, on or before October 13, 2017. 6
SIGNED on September 28, 2017.

_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

Plaintiff’s Proposed Amended Complaint does not include any claims against the Board of Regents. (See Mot. Leave,
Dkt. 15, ¶ 1). The Court expects Plaintiff’s First Amended Complaint to reflect the same.
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