Alvarado v. City of Brownsville

• Decision Date: 31 August 1993
• Docket Number: No. 13-91-357-CV,13-91-357-CV
• Citation: 865 S.W.2d 148
• Parties: Victor ALVARADO and Olga Alvarado, Appellants, v. The CITY OF BROWNSVILLE, Appellee.
• Court: Texas Court of Appeals

Page 148

865 S.W.2d 148

Victor ALVARADO and Olga Alvarado, Appellants, v. The CITY OF BROWNSVILLE, Appellee.

No. 13-91-357-CV.

Court of Appeals of Texas,

Corpus Christi.

Aug. 31, 1993.

Rehearing Overruled Nov. 10, 1993.

Carter C. White, San Francisco, CA, Ed Stapleton, Costilla & Stapleton, Brownsville, for appellants.

William S. Helfand, J. Preston Wrotenbery, Tina Snelling, Hirsch, Glover, Robinson & Sheiness, Houston, for appellee.

Before GILBERTO HINOJOSA, PAUL W. NYE, ^* and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

GILBERTO HINOJOSA, Justice.

Appellants, the parents of Ricardo Alvarado, brought a wrongful death and survival action against the City of Brownsville after Ricardo Serna Alvarado committed suicide in the city jail. Appellants challenge the jury's verdict in favor of the City by thirteen points of error, including the sufficiency of the evidence to support the jury's verdict, the trial court's submission of the charge, and the trial court's exclusion of certain evidence. We reverse and remand.

On November 10, 1988, Ricardo Serna Alvarado, a nineteen-year-old, committed suicide in the Brownsville City Jail by hanging himself with a jail-issued blanket. He had been arrested for driving while intoxicated after causing a one-car automobile collision. Earlier that day, he had skipped class from high school and gone "cruising" and beer drinking with friends. Family and friends testified that Ricardo did not normally skip school. The evidence showed, however, that Ricardo was somewhat agitated that day because a young woman for whom he felt great affection had refused to accept flowers from him.

Officer Jose Angel Rodriguez was the arresting officer at the scene of the collision. He had administered field sobriety tests and determined that Ricardo was intoxicated. According to Officer Rodriguez, Ricardo refused the intoxilizer exam, but otherwise was cooperative and did not appear to be crying, upset or suicidal. However, Officer Rodriguez also testified that the personal history and arrest record prompting the post-arrest interview with Ricardo did not require an explicit determination of whether Ricardo was suicidal.

Ricardo was booked at the Brownsville City Jail at 2:32 p.m. and was found hanging in his jail cell at approximately 7:20 p.m. Ignacio "Nacho" Perez and Javier Elizondo were the jailers on duty that evening. Perez testified that Ricardo was alone in the detoxification cell, or "drunk tank," when he arrived on duty at 2:40 p.m., and that four other detainees were in the other cells.

Jailers Perez and Elizondo gave conflicting testimony regarding Ricardo's mental state and his degree of intoxication. Jailer Perez testified that Ricardo lay still with his back to the cell door during the entire four hours he was in the "drunk tank," indicating a high degree of intoxication. Perez also testified that, although Ricardo had refused dinner, he appeared "fine" when he made a cell check at 6:50 p.m. He stated that Ricardo was not violent, angry, or crying during the entire time he was in the cell. However, Perez admitted that he would not have known if Ricardo had been crying since he did not see his face and he never actually elicited a response from him.

In contrast to Jailer Perez' testimony, Jailer Elizondo testified that he never saw Ricardo lying down. Elizondo stated that Ricardo was seated on the concrete ledge in his cell. Elizondo also testified that he had the opportunity to speak with Ricardo at the front of his cell when Ricardo declined to make his phone call and that Ricardo did not appear to be crying or suicidal.

The evidence shows that, on the evening of Ricardo's suicide, the jailers did not adhere to the jail policy of conducting cell checks every twenty minutes. Jailer Perez made a cell check at approximately 6:40 or 6:50 p.m., but Jailer Elizondo did not make the next scheduled cell check. Instead, a "de facto" cell check occurred when Perez delivered an arrestee to a cell at 7:20 p.m., leading to the discovery of Ricardo's body. Neither Perez nor Elizondo administered CPR while waiting for the paramedics to arrive.

Jailers Perez and Elizondo justified their failure to make the requisite twenty-minute cell check by explaining that it was their understanding that booking procedures took priority over cell checks. They testified that the scheduled cell check was not made because, at 7:11 p.m., Perez and Elizondo were booking two arrestees. The "booking" procedure required approximately ten to twenty minutes to strip-search, fingerprint, photograph and register the arrestees. During the "booking" procedure, the jailers allowed the view of the men's drunk tank from the booking station to be obstructed by the door leading to the cell block.

The record reflects that jail policy would have allowed the postponement of booking procedures while a cell check was conducted. Section 209(e) of the Jail Procedures Manual for the City of Brownsville, Texas, in effect at the time of the suicide, states that "[w]hen several prisoners are brought in at the same time all but the one being booked should be placed in a secure cell or detention tank after a thorough search of the prisoner has been accomplished." Elizondo stated that his understanding of the booking procedure was that jailers were required to finish the booking procedure once it was started.

At trial, appellants introduced the Jail Procedures Manual for the City of Brownsville, Texas, as evidence that, at the time of Ricardo's death, the City had formulated a two-part safety policy that encompassed suicide prevention. First, § 210 of the Manual stated that "[t]he health and well-being of prisoners in the city jail is the sole responsibility of the City." Second, § 301 of the Manual stated, "[t]he on duty jailer will observe each prisoner at least every twenty (20) minutes. Observations should be more frequent for prisoners who are potentially suicidal, mentally ill, or have demonstrated violent behavior. These observations are to be recorded in the Jailer's log book."

Because the trial judge excluded several of appellants' theories of liability and related evidence, the sole theory of negligence submitted to the jury was that the City breached its self-imposed duty to care for inmates in that the jailers failed to make the scheduled twenty-minute cell checks required by the Jail Procedures Manual. The jury found that the City was not negligent and that Ricardo's "negligence or intentional conduct" proximately caused his own death.

In their first point of error, appellants argue that the jury's failure to find that the City of Brownsville was negligent and proximately caused Ricardo's death is against the great weight and preponderance of the evidence and is manifestly unjust. When reviewing a factual sufficiency point, an appellate court considers and weighs all of the evidence that tends to prove, as well as evidence that tends to disprove, the existence of vital facts. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). However, it is the jury's province, as the trier of fact, to judge the credibility of witnesses and the weight to be given their testimony. Walter Baxter Seed Co. v. Rivera, 677 S.W.2d 241, 244 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.). The finding by the trier of fact will be upheld unless the evidence is too weak, or the finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 634-35 (Tex.1986).

The City had a twenty-minute cell-check policy to maintain the health, safety and well-being of inmates. The evidence shows that the jailers failed to implement that policy in that a "de facto" cell check was made at 7:20 p.m., which was ten-to-twenty minutes after the scheduled cell check. However, Jailers Perez and Elizondo testified that they understood that the jail policy was to prioritize booking over cell checks. The jury was instructed that negligence means the "failure to do that which a person of ordinary prudence would have done under the same or similar circumstances." Applying this definition to the evidence presented to the jury, and giving deference to the jury's evaluation of the credibility of the witnesses, we hold that the jury's finding is not against the great weight and preponderance of the evidence. Pool, 715 S.W.2d at 634-35; Rivera, 677 S.W.2d at 244. Appellants' first point of error is overruled.

In their second point of error, appellants argue that the trial court erroneously submitted question two of the charge over their timely objection. Question two asked, "Do you find by a preponderance of the evidence that the negligence or intentional conduct of Ricardo Alvarado proximately caused his own death?" The jury was then instructed to answer question three if it had found that "the negligence and/or intentional conduct of both the City of Brownsville and Ricardo Alvarado caused the death in question." Question three asked the jury to apportion between the City and Ricardo "the percentage of the negligence or intentional conduct that caused the death."

The trial court erred when it submitted question two to the jury because appellees were prohibited by law from asserting Ricardo's suicide as a defense. Section 93.001 of the Texas Civil Practices and Remedies Code prohibits the use of a plaintiff's suicide as a defense if the suicide was caused in whole or in part by a defendant's breach of a legal duty. ¹ TEX.CIV.PRAC. & REM.CODE § 93.001(a)(2) (Vernon Supp.1993). The basic premise of appellants' cause of action was that Ricardo's suicide was caused to some degree by the City's negligence. Accordingly, we hold that the trial court abused its discretion by submitting question two.

We now must determine whether the improper submission of question two amounts to reversible error. TEX.R.APP.P. 81(...