Dallas Court of Appeals Affirms Serpe Andrews’ Summary Judgment Victory in Foster Parent Liability Case

On August 6, 2018, the Dallas Court of Appeals affirmed a summary judgment for foster parents and a foster placement agency, represented by Serpe Andrews , in a negligence suit. The case was brought by biological parents of a foster child that was tragically killed while living in the foster parents’ home with his three siblings. The foster child died after being struck by a vehicle while exiting the school bus outside his foster parents’ home. The driver was separately convicted for his criminal conduct of speeding, driving without a license, and ignoring a school bus’s red lights and extended stop sign that resulted in running over this foster child. Nevertheless, the biological parents sued the foster parents and agency for negligently allowing their foster child to cross the street after getting off the school bus. In other words, the biological parents sought to hold the foster parents liable for allowing their foster child to ride the school bus and cross the street, a basic and fundamental parental decision. Serpe Andrews filed a summary judgment motion in the county court on three grounds: (1) no duty to establish the bus stop location; (2) the foster parents or agency did not proximately cause the foster child’s death by allowing him to cross the street; and (3) in a matter of first impression, the foster parents should be granted parental immunity based on the in loco parentis doctrine. The court granted Serpe Andrews ’ motion on all three grounds. The biological parents appealed to the Dallas Court of Appeals.

With briefing completed by Lauren S. Harbour and argument delivered by B.J. Bell, the Serpe Andrews appellate team successfully persuaded the Court of Appeals that the biological parents failed to present any evidence that the foster parents’ actions—the care they provided to their foster child, including allowing him to ride the school bus—were the proximate cause of the foster child’s death. The Court concluded the foster parents’ actions simply resulted in the child’s presence at the location of the injury, and, therefore, were too attenuated to the foster child’s death, because the driver’s criminal conduct was “entirely different.” The court also rejected the biological parents’ proximate cause argument, because the foster parents did nothing more than provide a condition making the injuries possible. Acknowledging the biological parents’ flawed logic, the Court reasoned “there is some risk involved for any pedestrian crossing a roadway, whether that person is a child or an adult.” But that does not amount to foreseeability; rather, the foster parents would need to foresee the “danger of injury from crossing the roadway once the [school] bus was stopped in the opposite lane of traffic with its red lights and stop arm activated, signaling to all other drivers that schoolchildren were disembarking the bus and crossing the roadway.” The summary judgment evidence showed, as the Court found, that the driver’s “extraordinary criminal circumstance was foreseeable only if viewed in retrospect.” As a result, the foster parents’ summary judgment was affirmed on the basis of causation. Because each of the three summary judgment grounds were dispositive in their own right, the appellate court declined to rule on the remaining issues.

To view the court’s opinion, please click here.

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