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Representations do not Contemplate Criminal Conduct under the DTPA

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Bryant v. S.A.S., 416 S.W.3d 52 (Tex. App.-Houston [1st Dist.] 2013, pet. filed)

The Facts:

Beth Bryant worked for a childcare center that was operated by a church. Beth began circulating a flyer which advertised the babysitting services of her sixteen-year-old son, Morgan Bryant. The childcare center approved of the flyer and gave Beth permission to circulate it. The flyer mentioned that Morgan had been part-time help at the childcare center for summer school, and had also worked there for vacation bible school.

The Smiths had hired Morgan to babysit their two sons. Morgan babysat the Smith's sons approximately five to ten times. Morgan later admitted to sexual assault of the children and pled guilty to felony charges.

The Smith parents then brought this DTPA lawsuit against Beth Bryant, the childcare center, and the church, based on knowingly or intentionally (1) representing that Morgan had sponsorship, approval, status, affiliation, or connection that he did not have, (2) representing that services are or will be of a particular standard, quality, or grade if they were of another, and (3) failure to disclose information. The jury found in favor of the Smiths.

The Court's Analysis:

The main issue on appeal was the issue of causation. The trial court found that the Smiths would not have hired Morgan but for the representations in the flyer. The court assumed, without deciding, that there was evidence to support the DTPA findings that Beth and the church made actionable misrepresentations.

However, the Court noted that the misrepresentations need to be a substantial factor in bringing about the injuries, and without them, the harm would not have occurred. The Court determined that there was no legal cause sufficient to impose civil liability on the Defendants for the criminal conduct of another. While the flyer and Beth's comments led the Smiths to initially offer a job to Morgan to babysit their children, they did not constitute a substantial factor in bringing about the injuries.

Instead, the Court determined that the relationship between Morgan and the Smiths developed independently of Beth Bryant and the church. Although the initial referral came from them, all contact between Morgan and the Smiths took place directly between them at the Smith's home. The Court of Appeals therefore reversed the trial court and rendered a take-nothing judgment.

What to Take Away:

In a DTPA case, causation only needs to be a producing cause of the injury. However, the wrongful act still needs to be a substantial factor in bringing about the injuries and intervening acts can break the causal chain.

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