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Click here for the full text of this decision FACTS:The case arose out of an alleged sexual assault in the bathroom of the Pilgrim Rest Baptist Church’s third-floor gymnasium that occurred while the gym was being used by a third-party youth group. Jane Doe’s 10-year-old daughter was one of the members of the youth group. She was allegedly sexually assaulted in that bathroom by the adult supervisor of the youth group. Doe sued the church alleging that it “failed to provide security for its invitees” and failed to warn Doe about its inadequate security. She asserted causes of action for premises liability, negligence and gross negligence. The church moved for both traditional and no-evidence summary judgment and submitted deposition testimony that it contended established that the alleged criminal conduct was not foreseeable. Doe opposed the motion and submitted deposition testimony that she contends raised an issue of fact concerning whether the alleged conduct was foreseeable. She argued that the motion should be denied, because the church owned the premises and “permitted and authorized [the youth group] to utilize its gymnasium when it realized or should have realized the likelihood that a third party might avail himself of the opportunity to commit a tort or crime on the premises.” An associate judge granted the church’s motion without specifying the grounds for the ruling. Doe appealed that decision to the trial court, but the trial court denied that appeal and dismissed Doe’s claims against the church with prejudice. HOLDING:Affirmed. In her sole issue, Doe argued that the trial court should not have granted summary judgment, because disputed fact issues precluded the grant of summary judgment and the church did not show it was entitled as a matter of law to summary judgment. As a general rule, a person has no legal duty to protect another from the criminal acts of third parties. Property owners, however, have a duty to use ordinary care to protect invitees from foreseeable criminal acts of third parties. In determining whether the criminal conduct was foreseeable, a trial must consider whether any criminal conduct previously occurred on or near the property, how recently the criminal conduct occurred, how often it occurred, how similar it was to the conduct at issue, and what publicity was given to the previous conduct to indicate that the premises owner knew or should have known about it. In a premises-liability case arising from the criminal conduct of a third party, a defendant who seeks to negate foreseeability on summary judgment must prove more than that the intervening third-party criminal conduct occurred. The defendant has the burden to prove that the conduct was not foreseeable. If a defendant submits evidence proving that the conduct was not foreseeable, the burden then shifts to the plaintiff to raise a fact issue by presenting controverting evidence that the criminal conduct was foreseeable. To prove that the alleged criminal conduct was not foreseeable and defeat Doe’s claims as a matter of law, the church submitted the following deposition testimony from Reginald Bibb, the “president/director of the athletic ministry at Pilgrim Rest Baptist Church, among other things,” in which he states that he was not aware of anybody being assaulted in the gym. The record also reflected that Bibb answered in the affirmative when asked during his deposition if he “would be the one that would be familiar with the gym and letting other people use it and so on and so forth.” This testimony, the court stated, was competent summary-judgment evidence that negated the foreseeability element of Doe’s premises-liability claim. The burden then shifted to Doe to raise a fact issue by presenting controverting evidence that the criminal conduct was foreseeable. But the court found that Doe’s proffered evidence did not satisfy the burden. Evidence of fights, the court stated, between young people using the gym during a sporting event does not make the general danger of a sexual assault foreseeable. Thus, the court held that Doe did not raise a fact issue on the element of foreseeability. OPINION:Lang-Miers, J.; FitzGerald, Lang-Miers and Mazzant, JJ.

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