City of Brownsville v. Alvarado

• Decision Date: 08 June 1995
• Docket Number: No. D-4598,D-4598
• Citation: 897 S.W.2d 750
• Parties: 38 Tex. Sup. Ct. J. 440 The CITY OF BROWNSVILLE, Petitioner, v. Eugenio ALVARADO and Olga Alvarado, Respondents.
• Court: Texas Supreme Court

Page 750

897 S.W.2d 750

38 Tex. Sup. Ct. J. 440

The CITY OF BROWNSVILLE, Petitioner, v. Eugenio ALVARADO and Olga Alvarado, Respondents.

No. D-4598.

Supreme Court of Texas.

Argued Nov. 15, 1994.

Decided March 30, 1995.

Rehearing Overruled June 8, 1995.

William S. Helfand, Tina Snelling, J. Preston Wrotenbery, Houston, for petitioner.

Carter C. White, San Francisco, CA, Edward S. Stapleton, III, Yolanda De Leon, Brownsville, for respondents.

CORNYN, Justice, delivered the opinion of the Court, in which all JUSTICES join.

Ricardo Serna Alvarado committed suicide in the Brownsville City Jail by hanging himself with a blanket from the bars of his cell. His parents, Victor and Olga Alvarado, brought this wrongful death and survival action against the City, claiming that the City's negligence proximately caused Ricardo's death. Although the jury failed to find that any negligence on the part of the City caused Ricardo's death, the court of appeals reversed and remanded for a new trial, holding that the trial court had improperly excluded all the evidence relating to certain discrete grounds of negligence and that the trial court had confused and misled the jury by submitting questions on Ricardo's own negligence. 865 S.W.2d 148. Because we conclude that the error, if any, committed by the trial court was harmless, see TEX.R.APP.P. 184(b), we reverse the judgment of the court of appeals and render judgment that the Alvarados take nothing.

On November 10, 1988, nineteen-year old Ricardo was arrested for driving while intoxicated after hitting a parked car. He was booked at the Brownsville City Jail at 2:32 p.m. Ricardo was alone in the detoxification cell when Jailers Perez and Elizondo arrived for their afternoon shift. Although the jailers presented differing testimony about Ricardo's behavior during the time he remained in the cell, neither witnessed any indication that Ricardo was upset, emotional, violent, or suicidal. Ricardo's friends who had been with him earlier testified that he had been disturbed by the refusal of a schoolmate to accept flowers he had bought for her that day.

The City of Brownsville Jail Procedures Manual requires jailers to check prisoners every twenty minutes, and to check more frequently prisoners who are potentially suicidal or violent. Jailer Perez conducted the last cell check at which Ricardo was seen alive at 6:50 p.m. A few minutes after that check, two new people were brought in for booking. During the booking procedure, the jailers' view of Ricardo's cell was obstructed by the door to the cell block. At 7:20 p.m., as Perez was taking one of the new prisoners to a cell, he discovered Ricardo hanging from the cell bars. Perez checked Ricardo's pulse and pupils and found no signs of life, and did not attempt to resuscitate Ricardo while waiting for the paramedics to arrive. The jailers justified their failure to timely perform the cell check on their understanding that booking procedures, which usually take ten to twenty minutes, had priority over cell checks.

At trial, the jail manual was admitted into evidence, but the trial court excluded evidence relating to the personnel history of one of the jailers, a previous suicide attempt at the jail, state and other jail standards, and alternative measures for identifying suicidal inmates. The jury was asked three questions: (1) did negligence, if any, of the City proximately cause Ricardo's death, (2) did the negligence or intentional conduct of Ricardo proximately cause his own death, and (3) what percentage of the negligence or intentional conduct that caused the death was attributable to the City and what percentage was attributable to Ricardo. The jury was instructed not to answer Question 3 unless it answered "yes" to both Questions 1 and 2. The jury answered "no" to Question 1, "yes" to Question 2, and did not answer Question 3.

Two issues concerning the conduct of the trial are presented for our review. First, whether the submission of Question 2 was harmful error. Second, whether the trial court's exclusion of some of the Alvarados' evidence was harmful error. We address each issue in turn.

The court of appeals determined that the submission of Question 2, inquiring about Ricardo's own conduct, was improper because Texas Civil Practice and Remedies Code § 93.001 prohibits the use of suicide as a defense if the suicide was caused in whole or in part by the City's breach of a legal standard. The court then determined that the improper submission was harmful because when read in conjunction with Questions 1 and 3, Question 2 confused and misled the jury into focusing on the cause of death, which was undisputedly suicide, instead of focusing on whether the City was negligent in allowing Ricardo to commit suicide. The City contends that the submission of Question 2 was harmless error in light of the jury's answer to Question 1.

Submission of an improper jury question can be harmless error if the jury's answers to other questions render the improper question immaterial. Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 750 (Tex.1980); Texas & New Orleans R.R. Co. v. McGinnis, 130 Tex. 338, 109 S.W.2d 160, 163 (1937). A jury question is considered immaterial when its answer can be found elsewhere in the verdict or when its answer cannot alter the effect of the verdict. Fleet v. Fleet, 711 S.W.2d 1, 2 (Tex.1986); C. & R. Transp., Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966); Powers v. Standard Accident Ins. Co., 144 Tex. 415, 191 S.W.2d 7, 9 (1945). Submission of an immaterial issue is not harmful error unless the submission confused or misled the jury. Bailey, 609 S.W.2d at 750; H.E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501, 504 (Tex.Civ.App.--San Antonio 1949, writ ref'd n.r.e.). When determining whether a particular question could have confused or misled the jury, we "consider its probable effect on the minds of the jury in the light of the charge as a whole." Texas Employers Ins. Ass'n v. McKay, 146 Tex. 569, 210 S.W.2d 147, 149 (1948) (citing Russell v. Great Am. Indem. Co., 127 Tex. 458, 94 S.W.2d 409, 410 (1936)).

Assuming without deciding that submission of Question 2 (Ricardo's negligence) was improper, it was plainly immaterial in light of the jury's "no" answer to Question 1 (the City's negligence). Once the jury found in answer to Question 1 that the City did not proximately cause Ricardo's death, the City was exonerated of liability, and neither an affirmative nor a negative answer to Question 2 could have altered the verdict. Reading the charge as a whole, we do not find that any of the questions submitted were ambiguous or misleading. The cause of death and the fact of suicide were never in doubt; the jury was simply asked to identify who was responsible. Moreover, the Alvarados did not object to the specific wording of either Question 1 or Question 2, but only to the submission of Ricardo's negligence when they urged that the City alone was responsible. Under these circumstances, the submission of Question 2 was not harmful error. See TEX.R.APP.P. 184(b).

The Alvarados' second claim of harmful error relates to the trial court's exclusion of evidence. The trial court excluded all of the following evidence that the Alvarados claim supported discrete grounds of negligence: that one of the jailers had a practice of unnecessarily isolating inmates; that jail officials had not responded adequately to a 1986 suicide attempt; that the jailers received inadequate training in suicide identification and CPR; that the jail should have had video cameras in the detention areas of the jail; and that the jail failed to meet state jail standards regarding potentially suicidal inmates. The trial court excluded all of this evidence on the grounds that it did not involve the condition or use of tangible personal property and so governmental immunity was not waived, see TEX.CIV.PRAC. & REM.CODE § 101.021(2), or that it fell within the discretionary or police protection exemptions to the waiver of sovereign immunity in the Texas Tort Claims Act. TEX.CIV.PRAC. & REM.CODE §§ 101.055(3), 101.056. ¹ The trial court also excluded evidence that the two jailers did not attempt to resuscitate Ricardo on the grounds that there was no evidence that the failure to administer cardio-pulmonary resuscitation was a proximate cause of Ricardo's death.

The court of appeals agreed with the Alvarados that exclusion of the evidence concerning the jailers' lack of training and Jailer Perez' policy of isolating inmates did involve the use of tangible personal property, namely, the door blocking the jailers' view of the cell block and the drunk tank itself. 865 S.W.2d at 158. The court also agreed that the jury should have been informed that the jailers failed to administer CPR because such evidence would have raised a fact issue as to whether the failure to administer CPR was a proximate cause of Ricardo's death. Id. Finally, the court of appeals agreed that the evidence concerning inadequate suicide identification and prevention training, failure to meet other jail standards, placement of the cameras, testimony concerning a 1986 suicide attempt, and...