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Click here for the full text of this decision FACTS:On Nov. 24, 2001, Christopher and Mary Ann Sanders invited their friends and neighbors Michael and Karen Herold to dinner at their house. The Herolds’ 16-year-old son, Michael, went upstairs with the Sanders’ 7-year-old daughter, J.S.. Another of the Herolds’ children reported that Michael and J.S. were behind a locked door. After separating Michael and J.S., the Sanderses suspected that there had been sexual contact between the two. Once home, Michael confessed to his parents what he had done, and he told police when they arrived that he had been sexually abusing J.S. for some time. Karen Herold told Mary Ann Sanders that Karen’s oldest daughter, Melinda, had been sexually assaulted as a child. The next day, Melinda told her parents that she sexually abused Michael when Michael was a child. The Herolds relayed this fact to the Sanderses. The Sanderses sued the Herolds for negligence and gross negligence, alleging: 1. they failed to act as reasonable and prudent parents would act in seeking counseling or other medical help for Michael and Melinda; 2. they failed to supervise Michael and Melinda; and 3. they failed to warn third parties of the anticipated dangers associated with permitting Michael and Melinda to have unsupervised access to the Sanderses’ children. The Sanderses alleged that had they known about Melinda’s history of abuse, suicidal tendencies and incomplete therapy, the Sanderses would never have allowed their children to be left alone with Michael. The Herolds moved for summary judgment, arguing that they did not owe the Sanderses a duty, because they did not know that Melinda sexually abused Michael, and Michael’s actions were unforeseeable. They noted that Michael had good behavior did well in school, had never been in trouble and was a member of his school choir and a church youth group. Karen and Melinda Herold stated in an affidavit that they had never seen pornographic material in the house and that they never knew of Michael watching or looking at porn. They had never suspected Michael of molesting anyone and had never caught him behind a locked door with a child or sibling. In response, the Herolds noted Melinda’s abuse, her delay in coming forward, her disturbed emotional state as a child and her prematurely terminated therapy. They also noted that Michael was intensely voyeuristic as a child, constantly trying to catch his parents in an intimate moment. They asserted that Michael looked at and enjoyed pornography with the encouragement of his father, and that the Herolds discussed sexual topics in front of Michael. Finally, they noted that society has grown increasingly aware of sexual abuse and that it is commonly known that sexual abuse of one child can start a cycle of child abuse. The trial court granted the Herolds’ summary judgment. HOLDING:Affirmed. The court summarizes the Sanderses’ argument: “that the Herolds knew or should have known that Melinda had molested Michael as a child, and that, as a result, the Herolds knew or should have known that Michael would, in turn, molest another child.” After reviewing several cases from Texas appellate courts, the court finds, however, that even accepting that sexual abuse may be cyclical, there is still no duty on parents to warn others than their child has been sexually abused. The court finds that such a duty would stigmatize all sexual-abuse victims as potential sexual abusers. “Instead, there must be some evidence, other than the fact of their child’s abuse, available to the parents of the abused child that would make it foreseeable to them to that their child was likely to sexually abuse another,” the court writes. Addressing the other assertions made by the Sanderses, the court notes that nothing indicates that his voyeuristic tendencies as a child continued into adolescence. There is also nothing to suggest that Michael’s viewing of pornography included viewing child pornography or anything else to indicate that he had an interest in young children. And though he apparently enjoyed the company of younger children, there was no prior evidence that his interest was sexually inappropriate. “Because there is no evidence that Michael’s parents were aware of his”dangerous tendencies’ or could”anticipate the danger’ he posed to other children, the [Herolds] had no duty to warn the Sanderses that he was dangerous.” The court refuses to draw a negative inference from Michael’s and Melinda’s invocation of their Fifth Amendment rights against self-incrimination during their deposition. The court finds that two equally plausible inferences can be made: 1. neither Michael nor Melinda wanted to be charged with additional crimes of molestation, or 2. Michael and Melinda sought to protect their parents’ knowledge of Michael’s abuse and J.S.’s abuse. Neither is more probable than the other. Finally, the court says it need not address the Sanderses’ contention that summary judgment on their malice (gross negligence) claim was improper: “Although we agree that gross negligence refers to a different character of conduct, one’s conduct cannot be grossly negligent without being negligent.” OPINION:Radack, C.J.; Radack, C.J., Alcala and Bland, J.J.

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