City of Columbus v. Barnstone

• Decision Date: 03 August 1995
• Docket Number: No. 01-94-00260-CV,01-94-00260-CV
• Citation: 921 S.W.2d 268
• Parties: CITY OF COLUMBUS, Appellant, v. George BARNSTONE, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 268

921 S.W.2d 268

CITY OF COLUMBUS, Appellant, v. George BARNSTONE, Appellee.

No. 01-94-00260-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

August 3, 1995.

William S. Helfand, Charles T. Jeremiah, Tina Snelling, Houston, for appellant.

Robert O'Conor, Jr., Robert D. O'Conor, Houston, for appellee.

Before WILSON, MIRABAL and DUGGAN, ¹ JJ.

OPINION ON REHEARING

WILSON, Justice.

We grant appellant's motion for rehearing, withdraw our previous opinion and judgment, and substitute the following. We deny appellant's request for en banc reconsideration as moot.

Appellant, the City of Columbus (the City), appeals the denial of its motion for summary judgment, pursuant to TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(5) (Vernon Supp.1995). Appellee, George Barnstone, brought suit against the City for damages stemming from personal injuries he suffered in a head-on automobile collision with a drunk driver, Laura Ellis. The City, in its motion for summary judgment, asserted the affirmative defense of governmental (or sovereign) immunity. In its sole point of error, the City contends the trial court erred in denying its motion for summary judgment. We reverse and render.

Fact summary

The summary judgment evidence presented by the City in support of its motion includes an affidavit from Officer Nathan Lapham. No affidavit from Officer John Ripple appears in the record. The summary judgment evidence presented by Barnstone includes his affidavit, affidavits from Laura Ellis (Ellis) and Tina Barten, and excerpts from the deposition of Ellis' mother-in-law, Vivian.

After an evening of drinking with friends, Ellis went to her mother-in-law's house to try to gain possession of her children. This attempt was in violation of a court order controlling her access to the children. Her mother-in-law called the City of Columbus police, and Officers Ripple and Lapham went to the scene. It is undisputed that Ellis was intoxicated, and that this fact was apparent to the officers.

When the officers arrived, Ellis yelled obscenities at them. According to Ellis, she went to her car to leave, but the keys were not there. She again yelled at the officers, and she stated that the officers ultimately returned her keys to her. A witness and friend of Ellis, Tina Barten, stated the officers gave her the keys and later told her to return the keys to Ellis. The officers warned Ellis not to drive that evening because she would go to jail for driving while intoxicated. Ellis' mother-in-law initially told the officers that Ellis could stay with her. Ellis' mother-in-law also told the officers that Ellis could not stay at her house if she continued to try to remove the children. Officer Lapham stated Ellis assured the officers that she would not leave and Tina Barten told them she would take care of Ellis.

After more than 30 minutes, the officers left, but despite their warning, Ellis shortly left her mother-in-law's house driving her car. Ellis drove onto a nearby highway, crossed the center line, and struck an oncoming car driven by Barnstone.

Procedural history

Barnstone alleged in his petition the officers negligently:

1) implemented city policies;

2) returned or ordered the keys returned to an intoxicated person 3) entrusted the keys or the car to an intoxicated individual; and

4) "released" the intoxicated individual.

Barnstone also alleged the City:

1) failed to train officers how to properly deal with domestic disputes;

2) had a "bad" policy concerning domestic disputes; and

3) violated his civil rights.

The City argued in its motion for summary judgment that the Texas Tort Claims Act ² bars Barnstone's state tort claims because it is entitled to governmental immunity based on these facts. The City asserts it is immune from liability because its officers are entitled to official immunity for their actions. Additionally, the City contends Barnstone's allegations of civil rights violations are insufficient to support such a claim, and further, are barred by res judicata. The record indicates Barnstone's claim under 42 U.S.C. § 1983 was dismissed by the United States District Court for the Southern District of Texas for failure to state a cause of action.

Barnstone responded that his claims are not barred by proper application of the Tort Claims Act. Barnstone also argues the City is not immune from liability because his claims do not arise from negligent implementation of governmental policy. In addition, he claims res judicata does not bar his civil rights cause of action.

Standard of review

Generally, no appeal may be taken from the denial of a summary judgment. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980); Community Mut. Ins. Co. v. Owen, 804 S.W.2d 602, 605 (Tex.App.--Houston [1st Dist.] 1991, writ denied). However, there are a few recognized exceptions.

A person may appeal from an interlocutory order of a district court that ... denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state....

TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(5) (Vernon 1995); City of Houston v. Kilburn, 849 S.W.2d 810, 811 (Tex.1993). Therefore, we consider only the City's assertion of governmental immunity based on the official immunity of the officers. We do not consider the City's claim of governmental immunity that does not derive from the officers' official immunity, nor do we consider Barnstone's civil rights claim.

In a motion for summary judgment, the movant has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). When a defendant moves for summary judgment on an affirmative defense, the defendant must conclusively prove each element of the defense as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984); Rose v. Baker & Botts, 816 S.W.2d 805, 809 (Tex.App.--Houston [1st Dist.] 1991, writ denied). Evidence favoring the nonmovant will be taken as true, and every reasonable inference in favor of the nonmovant will be resolved in its favor. Nixon, 690 S.W.2d at 548-49; Clark v. Pruett, 820 S.W.2d 903, 905 (Tex.App.--Houston [1st Dist.] 1991, no writ).

Tort Claims Act

The liability of a governmental unit is controlled by the Texas Tort Claims Act. See TEX.CIV.PRAC. & REM.CODE ANN. §§ 101.001-101.009 (Vernon 1986 & Supp.1994). Generally, governmental units are immune from suit; however, this immunity is waived in certain instances by the act. The City's liability, if any, is controlled by the following provisions:

A governmental unit of the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omissions or the negligence of an employee acting within his scope of employment if:

(a) the property damage, personal injury, or death arose from the operation or use of a motor-driven vehicle or motor-driven equipment (b) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

TEX.CIV.PRAC. & REM.CODE ANN. § 101.021 (Vernon 1986).

Section 101.021(1) of the Torts Claim Act does not govern the factual situation presented by this case. Appellee states in his brief that his claim is asserted under subsection two and not subsection one and that it is based on the officers' use of personal property in their decision to return Ellis' keys to her. In addition, for immunity to be waived under subsection one, a governmental employee rather than a third party must have been the operator of the motor vehicle causing the injury. LeLeaux v. Hamshire-Fannett Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992). In this case, it is undisputed that although the injury was caused by the use of a motor vehicle, the vehicle was operated by a third person, Ellis, and not the police officers.

We next examine whether the City's governmental immunity is waived under subsection two. The Texas Supreme Court has recently construed section 101.021(2) to predicate a governmental unit's respondeat superior liability upon the liability of its employee. DeWitt v. Harris County, 904 S.W.2d 650, 654 (1995). In DeWitt, the court noted section 101.021(2) includes the proviso that a governmental unit is liable if it would, "were it a private person, be liable to the claimant according to Texas law." Id. The proper inquiry under section 101.021(2) therefore requires a court to recognize that, "were it a private person, the governmental unit would be entitled to assert any affirmative defenses its employee has to liability." Id. In DeWitt, the court held Harris County was not liable under section 101.021(2) for the negligence of its employee when the employee has no liability because of official immunity. Id. at 654.

We must therefore consider whether the officers are entitled to official immunity. Government employees, such as peace officers, are entitled to immunity from suit arising from the performance of (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994); Font v. Carr, 867 S.W.2d 873, 879 (Tex.App.--Houston [1st Dist.] 1993, writ dism'd w.o.j.). The question of an officer's individual negligence is immaterial when determining whether he was performing discretionary functions. Vasquez v. Hernandez, 844 S.W.2d 802, 804 (Tex.App.--San Antonio 1992, writ dism'd w.o.j.). As the supreme court has noted, "[t]he complex policy judgment reflected by the doctrine of official immunity, if it is to mean anything, protects officers from suit even if they acted negligently." Chambers, 883 S.W.2d at 655.

The summary...