Day on Torts
Where a plaintiff claiming that he was sexually assaulted in a locker room failed to present any evidence that the “health club knew or should have known of prior assaults by the assailant or anyone else,” summary judgment for defendant health club was affirmed.
In Boswell v. Young Men’s Christian Association of Middle Tennessee, No. M2018-00180-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2019), plaintiff claimed that he was sexually assaulted by Jack Dabney in the locker room at his local YMCA three times. Accordingly to plaintiff, Dabney first groped him in July 2015, at which time he left the facility and told no one. The second incident occurred one week later, at which time plaintiff reported the incident to the membership greeter. Plaintiff refused, however, to review video footage to identify the assailant, and instead wrote on a comment card that the YMCA should “put somebody inside the shower area to protect people from being sexually assaulted.” The third incident occurred seven months later. At that time, plaintiff told the YMCA executive director, and a male staff member went into the locker room with plaintiff and Dabney was identified. An investigation began, but plaintiff failed to return a phone message or email sent from the director regarding the matter. Although plaintiff did not supply additional information, Dabney’s membership was eventually revoked.
Plaintiff filed a complaint against the YMCA and Dabney for various claims, but the only claims still at issue on this appeal were those for negligence and negligent infliction of emotional distress against the YMCA. The trial court had granted summary judgment on these claims on the basis of an exculpatory agreement signed by plaintiff, but since that ruling the Tennessee Supreme Court had “revised the standards by which the enforceability of an exculpatory agreement should be determined.” The Court of Appeals, however, affirmed summary judgment on different grounds, not analyzing the exculpatory agreement but instead focusing solely on plaintiff’s failure to show that the YMCA knew or should have known about previous sexual assaults.
In this case, plaintiff’s negligence allegations revolved around the criminal acts of a third party. The Court reviewed the duty owed by a business owner in such circumstances, quoting:
A business owner ordinarily has no duty to protect customers from the criminal acts of third parties which occur on its premises. …However, a duty to take reasonable steps to protect customers arises if the business knows, or has reason to know, either from what has been or should have been observed or from past experience, that criminal acts against its customers on its premises are reasonably foreseeable, either generally or at some particular time.
(quoting McClung v. Delta Square Ltd., 937 S.W.2d 891 (Tenn. 1996)). Plaintiff therefore “had the burden to present or identify competent evidence sufficient to create a genuine dispute of fact that the YMCA knew or should have known prior to the assaults on Plaintiff that criminal acts by Mr. Dabney on its premises were reasonably foreseeable.”
Looking to the evidence, the Court found that while the record showed the YMCA was aware of inappropriate but consensual sexual acts in the locker room, “there [was] no evidence of any criminal acts or assaults against YMCA members or invitees in its facility.” Plaintiff relied heavily on his assertion that the greeter told him that Dabney “had engaged in similar conduct many times before.” The Court found, however, that not only did this comment only show that the YMCA was possibly aware of Dabney engaging in consensual sexual conduct, rather than sexual assault, before, but the comment was also inadmissible hearsay and thus could not be considered. Tennessee Rule of Civil Procedure 56.06 requires that affidavits supporting or opposing summary judgment contain “facts as would be admissible in evidence,” and plaintiff’s repetition of a statement allegedly made by an employee was hearsay that did not fall into any exception making it admissible. The other evidence relied upon by plaintiff was one newspaper article and Craigslist advertisements, both of which were also focused on consensual behavior and were inadmissible hearsay.
Because “Plaintiff failed to present or identify any competent evidence to support a finding the YMCA knew or should have known that it was reasonably foreseeable that Mr. Dabney would sexually assault someone,” the Court ruled that there was no genuine issue of material fact and summary judgment was affirmed.
The facts of this case were stacked against plaintiff—the court mentioned several times throughout its opinion that plaintiff was uncooperative and unresponsive when the YMCA was investigating the matter and that plaintiff did not help identify the assailant until after the third attack. Proving negligence of a premises owner based on the criminal acts of a third party can be difficult, and the plaintiff here failed to present evidence to get past the summary judgment stage.