Supreme Court of Texas.
Maria JUHL, Breck Landry, Martha Arellano, Richard D. Weiss, Betty F. Jameson, Grace Madrid, Barbara Shepard Baldwin f/k/a Barbara Licht Shepard and Shirley Riordan, Petitioners,
Thomas AIRINGTON, Respondent.
Argued Sept. 5, 1995.
Decided June 28, 1996.
Rehearing Overruled Jan. 31, 1997.
Attorneys & Firms
*640 Elizabeth German, Albuquerque, NM, for Petitioners.
*641 Gordon Stewart, El Paso, for Respondent.
PHILLIPS, Chief Justice, delivered the opinion of the Court in which OWEN and BAKER, Justices, joined.
A police officer brought this suit against a dozen protesters for an injury he allegedly sustained to his back while trying to remove one of their group from an abortion clinic. The officer claimed that the negligence of each defendant proximately caused his back injury. The trial court granted summary judgment for ten of the twelve defendants and granted a severance to make the judgment final. The court of appeals reversed and remanded for trial on the merits. 883 S.W.2d 286. We conclude that there is no theory under which any of the participants before us may be held liable for an injury sustained by an officer in removing another demonstrator. Accordingly, we reverse the judgment of the court of appeals and render judgment that plaintiff take nothing.
On September 16, 1989, a group of demonstrators attempted to block access to the Reproductive Services Clinic in El Paso. Individual demonstrators testified that they intended to disrupt the clinic’s activities for as long as possible by placing themselves in front of the clinic’s doors. Police officers called to the scene, including Officer Thomas Airington, ordered the demonstrators to leave the premises. Some refused to cooperate, forcing the officers to arrest them and literally carry them away. Officer Airington claims that he injured his back when he and another officer attempted to remove protestor Sylvia Salazar. In addition to Salazar, Airington also sued Samuel Oppenheim, the protest organizer, and protestors Maria Juhl, Breck Landry, Martha Arellano, Richard D. Weiss, Betty F. Jameson, Grace Madrid, Barbara Shepard Baldwin, Shirley Riordan, James Gose and Aileen Gose. Airington alleged that each defendant was negligent in: associating and acting together for the purpose of creating a disruption of a legal business which they knew or should have known would lead to a confrontation with police and others; creating a situation which they knew or should have known would create a danger of injury to officers who had to physically remove the protestors; participating in planning or agreeing to the demonstration; failing to obey a lawful order and leave the premises; and failing to assist the police in removing Salazar and themselves from the site.
Following discovery, all defendants except Salazar and Oppenheim moved for summary judgment. They argued that they had no duty to prevent Salazar from injuring Airington, that their actions or inactions were not a proximate cause of Airington’s injury, and that no defendant exercised control over any other demonstrator.1
Taking the record in the light most favorable to the non-movant, the summary judgment evidence reveals that most protesters learned about the demonstration by word of mouth no more than two days in advance. Nevertheless, three to four hundred potential protesters gathered at Alive Ministries Church on the night before the protest. During this meeting, the possibility of arrest was discussed. Oppenheim suggested that “assuming a limp position would identify with limp, dead babies, with helpless babies, perhaps in the womb,” and that doing so would also “give us more time to accomplish our purpose which was saving babies and mothers from abortion.” The morning of the demonstration, the protesters again met at the church. Oppenheim and others (no one could remember who) advised them where to go, what to do when they got to the clinic, and how to respond passively if confronted by police. It was left to each individual, however, to decide whether to obey a police order to leave or to disobey and risk arrest, and if the latter, whether to cooperate with the arresting officer or to passively resist removal. Many of the protestors rode together *642 to the clinic in vans or buses that were provided for them. There is some evidence that the protestors understood that those who rode in the vans had decided to enter onto the clinic grounds, refuse to leave, and subject themselves to arrest.
The trial court granted the summary judgment, severing the remaining actions against Salazar and Oppenheim to make the judgment final and appealable. The court of appeals reversed, holding that defendants had conclusively disproved neither duty nor causation.
The court of appeals held that fact issues remained both “as to the status of the group ... as an unincorporated association” and “as to whether [defendants] were acting in concert with each other and with Oppenheim and Salazar.” 883 S.W.2d at 290.
While recognizing that “no Texas cases have specifically held that a member of such an association may be liable for the tortious act of another member,” the court relied on Cox, 836 S.W.2d at 173. Cox may in fact reasonably be read as precluding group liability for one member’s conduct. In abrogating the common law rule that a member cannot sue the group because the group’s negligence is imputed to the member, the Court necessarily concluded that membership no longer automatically carries with it legal responsibility for the group’s actions. As Justice Cook, joined by Justice Hecht, noted in a concurring opinion:
The implicit holding of today’s opinion is that the individual liability of a member will be based on their actual participation in the tort or ratification of the actions which cause injury. Accordingly, I do not believe that an injured member should be able to recover for their injuries from another member who did not participate in or ratify the conduct leading to the member’s injury.
Cox, 836 S.W.2d at 174. Thus, even if the demonstrators constituted an unincorporated association, we have never held that they are automatically liable for the actions of other members of the association.
Further, imposing liability on individuals on the sole basis that a member of a group to which they belong has committed a tort in pursuit of the group’s goals would pose serious threats to the right of free association. As the United States Supreme Court recognized in Id. at 925, 102 S.Ct. at 3432. The Court reasoned that this would amount to a constitutionally impermissible “guilt by association.” Id.
Our sister court has refused to impose criminal liability because of similar concerns for the right of free association protected under article I, section 27 of the Texas Constitution. In discussing the mental state necessary *643 to convict a defendant under an anti-riot statute, the Court of Criminal Appeals recognized that:
Read literally, the riot statute criminalizes a knowing participation in an initially peaceable assembly that subsequently results in conduct creating an immediate danger of damage to property or injury to persons. If this language is not construed to require that the defendant participate in said assembly after gaining knowledge of the inception of such conduct, the statute would constitute a clear abridgement of the right of peaceable assembly.
Ferguson v. State, 610 S.W.2d 468, 470 (Tex.Crim.App.1979). Therefore, the Court reversed the conviction, which was based on a jury charge that did not properly instruct the jury on the knowledge necessary for guilt.
We believe that the liability of members of a group should be analyzed in terms of the specific actions undertaken, authorized or ratified by those members. Therefore, regardless of whether there was an unincorporated association here,2 we reject the lower court’s intimation that the existence of such an association might alone form the basis for imposing tort liability on all members for the acts of some.
Airington also asserts that the summary judgment should have been reversed because there is a fact issue whether defendants are liable for Airington’s injuries under the so-called “concert of action” theory. A version of the theory has been articulated by Prosser and Keeton as follows:
All those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt the wrongdoer’s acts done for their benefit, are equally liable.
W. PAGE KEETON, ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 46, at 323 (5th ed. 1984) (Hereinafter PROSSER & KEETON ON TORTS). The Restatement also incorporates this principle, imposing liability on a person for the conduct of another which causes harm if the defendant:
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.
The court of appeals looked to this Court’s decision in Gaulding, 772 S.W.2d at 71 (“We are not to be construed as approving or disapproving ... concert of action ... in an appropriate case.”). Thus, whether such a theory of liability is recognized in Texas is an open question.
Subsection (a) of Restatement (Second) § 876(a) are not theories upon which he could have relied to support summary judgment.
On the other hand, subsection (b) of Restatement (Second) Collins v. Eli Lilly Co., 116 Wis.2d 166, 342 N.W.2d 37, 46 (1984).
Even if we were to adopt subsection (b) of Restatement (Second) § 876 cmt d. Except for the “presence or absence at the occurrence,” all of these factors would cut against liability in this case.
The purpose of the concert of action theory is to deter antisocial or dangerous behavior. Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380, 389 (1987) (passenger who assisted driver in becoming intoxicated was liable for the harm resulting from DUI). Here, in contrast, defendants’ conduct was simply not the type of highly dangerous, deviant, or anti-social group activity which was likely to cause serious injury or death to a person or certain harm to a large number of people.
Nor was the amount and kind of assistance rendered of such character as to support imposing liability. While all but two of the defendants passively resisted arrest, and this could have acted as moral support to Salazar, there is no evidence that any defendant gave any verbal encouragement to Salazar during the arrest. The summary judgment evidence is clear that each person made his or her own choice about how to respond to the police order. We believe it would take far more encouragement than this to militate in favor of imposing liability, especially given the relationship of the defendants to Salazar.
None of the defendants, after all, had a right to control any of the others. They were, at best, acquaintances; in fact, several of the defendants did not even know Salazar at the time of the protest. Further, various defendants, including the one person with whom Salazar clearly was acquainted, were blocking different clinic entrances. These relationships are far too tenuous to weigh in favor of imposing liability.
Finally, nothing in the summary judgment evidence suggests that defendants’ states of mind would support liability. Far from intending to harm anyone by their passive activities, the whole purpose of defendants’ non-violent resistance was to prevent anyone from being harmed. Moreover, given the training and experience of police officers, there was less reason for defendants to foresee an officer’s injury from lifting a person than if the protestors had created a similar risk for ordinary citizens.
Because the summary judgment evidence conclusively disproves that defendants breached any recognized or theoretical duty to Officer Airington, we reverse the judgment of the court of appeals and render judgment that plaintiff take nothing.
ABBOTT, J., joined.
ABBOTT, Justice, concurring.
Although I concur in the Court’s opinion and judgment, I write separately because I believe the Court should use this case as a vehicle to adopt the Fireman’s Rule. Additionally, I write to express the view that if the judgment of the court of appeals is allowed to stand, it would have a chilling effect on political speech.
Under the common-law Fireman’s Rule, certain professionals, such as police officers and firefighters, are barred from recovery for injuries caused by ordinary negligence as a result of risks inherent in responding to an *646 emergency. Historically, jurisdictions adopting the Rule applied it only in premises liability cases. It originally barred recovery by firefighters and police officers because they were privileged to enter land pursuant to their public duties and were therefore classified as bare licensees to whom no duty was owed. Cook v. Demetrakas, 108 R.I. 397, 275 A.2d 919, 922–23 (1971) (supporting application of Rule on premises liability grounds when police officer was injured on stairway).
Other jurisdictions rely on the assumption-of-risk doctrine to bar recovery to police officers and firefighters for damages suffered as a result of risks inherent in their job duties. See, e.g., 393 U.S. 845, 89 S.Ct. 128, 21 L.Ed.2d 115 (1968) (asserting assumption-of-risk rationale for Rule when firefighter was killed in negligently started forest fire).
Still others rely on public policy considerations to bar recovery. Some of these policy considerations include a form of assumption of risk. See, e.g., Hauboldt v. Union Carbide Corp., 160 Wis.2d 662, 467 N.W.2d 508, 511–12 (1991) (limiting application of Rule to negligence cases based on policy considerations).1
I recognize that the Fireman’s Rule has been employed in Texas only in premises liability cases. See, e.g., 883 S.W.2d 286, 291. However, such a narrow interpretation of the Fireman’s Rule is not consistent with the trend in other jurisdictions to extend the Rule beyond premises liability based on public policy.
Police officers and firefighters, by the very nature of their duties, encounter hazardous situations on a regular basis. These hazardous situations often lead to officers being injured in the line of duty. Such injuries are often caused by negligent acts. When officers are called to a scene and are injured as a result of the very situation that required their presence, they should not be allowed to recover from an individual for their personal injuries. Citizens should in no way be “discouraged from relying on those public employees who have been specially trained and paid to deal with these hazards.” 418.002 (Supp.1996). Thus, public policy justifies the adoption of the Fireman’s Rule and calls for it to be applied more broadly than the premises liability context.
Applying this rule to Barbara Baldwin, Airington cannot recover.2 Airington was *648 called to the abortion clinic in his official capacity as a police officer to remove Baldwin and other protestors who were blocking the clinic’s entrance. While performing his duties by removing a protestor who refused to leave the premises, he injured his back. Under the Fireman’s Rule, Airington cannot recover because his injuries were caused by the very conduct that initially required his presence—demonstrators refusing to leave the premises voluntarily. While the Rule does not normally apply in cases in which an officer is injured by intentional, malicious, or reckless conduct by a citizen, see, e.g., Carson, 900 S.W.2d at 690–91, that exception does not apply in this case. Airington sued the protestors for negligence, not intentional or reckless acts. Thus, the Fireman’s Rule applies to his cause of action.
Additionally, I fear that allowing Airington to recover in this case would impair the protestors’ rights to political speech. Throughout history, state actors have attempted to limit individual free speech rights by a variety of means. However, many types of political speech have been protected under the First Amendment. See, e.g., Stromberg v. California, 283 U.S. 359, 369–70, 51 S.Ct. 532, 535–36, 75 L.Ed. 1117 (1931) (permitting flying of red flag as a political statement).
For example, in Brown, five African–Americans staged a silent sit-in in a public library to protest the facility’s segregationist policies. When they refused to leave the premises, the sheriff and his deputies arrested them. The United States Supreme Court held that the Louisiana “breach of the peace” law under which the protestors were arrested violated the protestors’ right to free speech. Id. at 142, 86 S.Ct. at 724. One can imagine the chilling effect on the protestors’ speech in Brown if, after winning their constitutional challenge, they were then sued by the arresting officers for negligence. Such an action would comprise a back-door attack by state actors on a constitutional right—the right to political speech.
Likewise, if this Court were to allow Airington to recover against the protestors in this case, we would provide yet another impairment to political speech. The protestors in this case, like those in Brown, practiced civil disobedience to an order to leave the premises by going limp when asked to leave. There is little doubt that allowing a peace officer to sue such a protestor for personal injuries resulting from having to remove the protestor will have a chilling effect on a constitutionally protected right. I do not believe we can allow Airington to prevail and still protect the protestors’ right to free speech and peaceable assembly. Political speech is too important a constitutional right to be undermined by a case like this one.
For these additional reasons, I concur in the Court’s judgment that Airington is barred from recovery in this case.
One defendant also asserted that the common law “fireman’s rule” barred Airington from recovering for any injury sustained in the course of his duties. Because we dispose of this case on other grounds, we need not consider this theory.
Though we do not need to decide the issue, it is doubtful that this group of protestors can be considered an unincorporated association. Oppenheim, who was the organizing force behind the demonstration, operated his abortion activities as a sole proprietorship called Rescue El Paso. It had no newsletter, no charter, no membership, no formal organization, and no regular meetings.
At least four states have abolished the Fireman’s Rule. See, e.g., Liability of Owner or Occupant of Premises to Police Officer Coming Thereon in Discharge of Officer’s Duty, 30 A.L.R.4th 81 (1984).
Only one defendant, Barbara Baldwin, raised the Fireman’s Rule as a defense in her motion for summary judgment. Therefore, all other defendants waived relief on this basis. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979) (holding that movant’s grounds for summary judgment must be in writing and before trial court at hearing). Nevertheless, it is important to address this issue for guidance in future cases.