City of Coppell v. Waltman

• Decision Date: 16 December 1998
• Docket Number: No. 05-98-00142-CV,05-98-00142-CV
• Citation: 997 S.W.2d 633
• Parties: (Tex.App.-Dallas 1998) THE CITY OF COPPELL, TEXAS and ROBERT KUBICEK, Appellants v. CALVIN WALTMAN, REBECCA WALTMAN, and KRISTY HOOVER, AS NEXT FRIEND FOR JOCELYN HOOVER, Appellees
• Court: Texas Court of Appeals

Page 633

997 S.W.2d 633 (Tex.App.-Dallas 1998)

THE CITY OF COPPELL, TEXAS and ROBERT KUBICEK, Appellants v. CALVIN WALTMAN, REBECCA WALTMAN, and KRISTY HOOVER, AS NEXT FRIEND FOR JOCELYN HOOVER, Appellees

No. 05-98-00142-CV

In The Court of Appeals Fifth District of Texas at Dallas

December 16, 1998

On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. 97-01540-B

Before Justices Kinkeade, Wright, and Bridges

O P I N I O N

Ed Kinkeade, Justice.

The City of Coppell and Robert Kubicek appeal the trial court's denial of a summary judgment based on claims of official immunity. In three points of error, Officer Kubicek and the City contend the trial court erred in holding that they were not entitled to summary judgment on the basis of qualified immunity and in overruling their objections to summary judgment evidence. Because we conclude the summary judgment evidence established Officer Kubicek's official immunity as a matter of law and, therefore, the City is also entitled to immunity, we reverse the trial court's denial of summary judgment and render judgment for Officer Kubicek and the City based on official immunity.

FACTUAL BACKGROUND

The facts surrounding this case are virtually undisputed by the parties. On February 20, 1995, Nathan Colby Waltman was arrested on an outstanding burglary warrant and for possession of drugs. Officer Robert Kubicek, the arresting officer, searched Waltman twice at the scene of the arrest, and once more when he booked Waltman into the City of Coppell's holding facility. In accordance with usual procedures, Officer Kubicek provided Waltman with a blanket when he placed him in the jail cell.

The City of Coppell holding facility uses a video monitoring system to watch prisoners in the cells. A city policy specifically requires the communications personnel in the jail to "constantly" monitor the prisoners by way of a video camera. In addition to the video monitoring, officers in the jail are to routinely check on prisoners. On the night Waltman was brought in, the police dispatcher, Cydney Cravens, was responsible for monitoring the video camera. She testified by affidavit that she sat at her desk within view of the video monitor and observed Waltman while performing her other duties, including answering the phone. She further testified that the cell contains a privacy screen so the prisoner may use the toilet facilities in private. According to Cravens, there was a period of about twenty minutes when she does not remember seeing Waltman on the monitor. The evidence shows that other officers periodically checked on Waltman throughout the evening. The parties do not disagree that Waltman showed no outward signs of contemplating or planning a suicide.

Approximately five hours after being placed in the cell, Waltman tore a strip from the blanket, stuffed an end of the strip into a hole in the privacy screen, fashioned a noose out of the other end of the strip and hanged himself by lying on the floor with the noose around his neck. The record indicates that Waltman's body was not completely obscured by the privacy screen when he hanged himself. Waltman was taken to the hospital where he was pronounced dead. A bottle of pills, containing an illegal drug commonly known as MDMA, was found hidden inside his underwear at the hospital. Traces of the drug were also found in Waltman's body at the time of the autopsy.

Calvin Waltman, Rebecca Waltman, and Kristy Hoover as next friend of Jocelyn Hoover, (the Waltmans) brought this negligence suit as survivors of Waltman, claiming that the City of Coppell, Officer Kubicek, and Officer Cravens should be liable for their actions that contributed to the death of Waltman. Officer Cravens, however, was never served or made a party to the case. The City and Officer Kubicek filed a motion for summary judgment, asserting official immunity. The trial court denied the motion for summary judgment. The City and Officer Kubicek appealed.

JURISDICTION

Generally, Texas appellate courts have jurisdiction only over final judgments; the denial of a summary judgment is interlocutory and unappealable unless a statute specifically authorizes an interlocutory appeal. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980); Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985) (orig. proceeding). Section 51.014 of the Texas Civil Practice and Remedies Code specifically allows appeal of some interlocutory orders, including an order denying a motion for summary judgment based on an assertion of immunity by an individual who is an officer or employee of the state. Tex Civ. Prac. & Rem. Code Ann. 51.014(a)(5) (Vernon Supp. 1998).

In this case, appellants moved for summary judgment based in part on the official immunity of Officer Kubicek and Officer Cravens and upon sovereign immunity protecting the City of Coppell. The City's potential liability depends upon whether Officer Kubicek and Officer Cravens are liable; if Officer Kubicek and Officer Cravens are protected by official immunity, the City is immune from liability. See DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995) (a governmental unit's respondeat superior liability is predicated upon the liability of its employee; if an employee has no liability because of official immunity, the governmental unit likewise has no liability). Therefore, a city may rely on section 51.014(a)(5) to appeal the denial of summary judgment based on sovereign immunity through its employees' qualified or official immunity. City of Beverly Hills v. Guevara, 904 S.W.2d 655, 656 (Tex. 1995). Thus, the assertion of immunity by Officer Kubicek means we have jurisdiction over both the City's and Officer Kubicek's interlocutory appeal.

SUMMARY JUDGMENT STANDARD

The standards for reviewing summary judgments are well established. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant who moves for summary judgment must show that the plaintiff has no cause of action by either disproving at least one essential element of each theory of recovery, or conclusively proving all elements of an affirmative defense. Mitchell v. City of Dallas, 855 S.W.2d 741, 748 (Tex. App.--Dallas 1993), aff'd, 870 S.W.2d 21 (Tex. 1991). If the movant establishes his right to judgment as a matter of law, the burden shifts to the nonmovant to raise fact issues precluding summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

In this case, the City and Officer Kubicek asserted official immunity and sovereign immunity as affirmative defenses. Therefore, they had the burden to conclusively prove all the essential elements of this defense. See id. If the City and Officer Kubicek carried this burden, the Waltmans then had to controvert the defendants' proof. See id.

OFFICIAL IMMUNITY

In their second and third points of error, the City and Officer Kubicek contend the trial court erred in holding that Officer Kubicek and Officer Cravens were not entitled to summary judgment on the basis of official immunity.

Official immunity is an affirmative defense that protects government employees from personal liability. Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994). Government employees are entitled to official immunity from suit arising from the performance of (1) their discretionary duties (2) in good faith, so long as (3) they are acting within the scope of their authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994); Kassen, 887 S.W.2d at 9. Where an employee possesses official immunity, the governmental entity does not have respondeat superior liability under the Texas Tort Claims Act. DeWitt, 904 S.W.2d at 654.

The parties do not dispute that Officer Kubicek and Officer Cravens were government employees acting within the scope of their authority. They disagree on whether Officer Kubicek and Officer Cravens were performing discretionary functions in good faith.

Discretionary v. Ministerial

Actions that require personal deliberation, decision, and judgment are discretionary; actions that require obedience to orders or the performance of a duty regarding which the actor has no choice are ministerial. See City of Lancaster, 883 S.W.2d at 654. Official immunity extends to discretionary actions but not to ministerial ones. Kassen, 887 S.W.2d at 9.

The City and Officer Kubicek contend the summary judgment evidence establishes Officer Kubicek and Officer Cravens were performing discretionary duties the night Waltman died and, therefore, they are immune from liability for those acts. The Waltmans argue that both Officer Kubicek and Officer Cravens were performing ministerial acts and thus are not protected by immunity.

Officer Kubicek

The summary judgment evidence shows that Officer Kubicek searched Waltman three times the night he was arrested, twice at the scene and once more at the jail. The evidence also shows that, at the time of his death, Waltman was in possession of and had ingested illegal drugs. The Waltmans argue that Officer Kubicek's failure to find the contraband violated a ministerial duty because the City had a policy requiring that any contraband on an arrestee be seized by the arresting officer. They argue that because the officer has no discretion as to whether to seize the contraband, Officer Kubicek violated his ministerial duty by not seizing the contraband. While we agree that if Officer Kubicek had found the contraband, he would have had a ministerial duty to remove it, we conclude the facts of this case do not give rise to this duty. The record establishes that Officer Kubicek was not aware Waltman was hiding any drugs when he arrested him. The only way Officer Kubicek could have found the contraband was through a search of Waltman, which he did more than once. Because the searches did not reveal the drugs, his ministerial duty to remove the drugs never arose. Therefore, we focus on whether the...