City of Hous. v. Nicolai

• Citation: 539 S.W.3d 378
• Decision Date: 24 August 2017
• Docket Number: NO. 01-16-00184-CV,01-16-00184-CV
• Parties: CITY OF HOUSTON, Appellant v. Frank NICOLAI and Debora Nicolai, as Parents of Caroline Nicolai, Deceased, Appellees
• Court: Court of Appeals of Texas

539 S.W.3d 378

CITY OF HOUSTON, Appellant

v.Frank NICOLAI and Debora Nicolai, as Parents of Caroline Nicolai, Deceased, Appellees

NO. 01-16-00184-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued August 24, 2017

Rehearing Denied February 8, 2018

Collyn A. Peddie, City of Houston Legal Department, 900 Bagby Street, 4^th Floor, Houston, TX 77002, for Appellant.

Ross A. Sears, II, WILLIAMSON, SEARS & RUSNAK, LLP, 4310 Yoakum Blvd., Houston, TX 77006, for Appellees.

Panel consists of Justices Jennings, Higley, and Massengale.

Terry Jennings, JusticeIn this interlocutory appeal,¹ appellant, the City of Houston (the "City"), challenges the trial court's order denying its plea to the jurisdiction in the suit by appellees, Frank Nicolai and Debora Nicolai, as parents of Caroline Nicolai, deceased (the "Nicolais"), against the City for negligence and wrongful death.² In its sole issue,³ the City contends that the trial court lacks subject-matter jurisdiction over the Nicolais' suit.

We affirm.

Background

In their Seventh Amended Petition, the Nicolais alleged that at approximately 3:30 a.m. on October 2, 2013, Houston Police Department ("HPD") Officer R. Gonzales handcuffed the decedent and placed her in the back seat of a patrol car. The decedent was "either not seatbelted or improperly seatbelted." While Gonzales was transporting the decedent, an automobile, driven by Nicole Moser, struck the patrol car at the intersection of Chartres Street and Texas Avenue as Moser drove through a red light on Texas Avenue. The collision caused the decedent to be ejected from the patrol car and sustain severe injuries that ultimately led to her death. Law enforcement officers took Moser, who admitted at the scene that she had just left a nearby bar, to a hospital, where medical personnel, based on her blood-alcohol concentration, found her to be intoxicated.

The Nicolais further alleged that at the time of the collision, Officer Gonzales was acting within the course and scope of her employment with the City, operating a vehicle owned by the City, and negligent in:

• failing to use, misusing or improperly using the seatbelt on [the decedent] in the [police] vehicle, allowing her to be ejected upon impact;

• failing to keep such a lookout as a person of ordinary, reasonable prudence would have kept under the same or similar circumstances;

• failing to slow down and if necessary, yield to traffic so as to avoid the collision made the basis of this suit;

• failing to timely and properly apply brakes;

• failing to take appropriate evasive action or turn vehicle and/or slow down to avoid the accident or lessen the impact;

• handcuffing [the decedent] in the backseat, when she did not appear to be under arrest or need to be handcuffed;

• improperly or negligently providing police protection as required by a municipality under the Texas Civil Practice & Remedies Code and/or the Government Code; [and]

• failing to follow policies and procedures regarding use of seatbelts.

They asserted that Gonzales's negligence proximately caused the decedent's death and the City is vicariously liable for Gonzales's negligence.

The Nicolais asserted that the City, pursuant to the Texas Tort Claims Act ("TTCA"),⁴ waived its governmental immunity the trial court has subject-matter jurisdiction over their claims. Specifically, the TTCA waives immunity for a death caused by the operation or use of a motor vehicle⁵ ; death caused by the use of tangible personal property, i.e., handcuffs and a seat belt⁶ ; and damages arising from a municipality's "governmental functions," including police "protection and control."⁷

The City filed an answer, generally denying the allegations, and a plea to the jurisdiction, arguing that the trial court lacks subject-matter jurisdiction over the Nicolais' claims because they had not presented jurisdictional evidence raising a fact issue on any of their asserted waivers of the City's immunity.

The City asserted that at 2:00 a.m. on October 2, 2013, Officer Gonzales, while on patrol, received a call from Ellington Field security about a suspected intoxicated driver. When she arrived, Gonzales found the decedent sitting on a curb next to her car. The decedent, who appeared to be intoxicated, was unable to stand without falling. Gonzales placed her in handcuffs and into the back seat of the patrol car in order to take her to the Houston Sobering Center, located on Chenevert Street. According to an HPD investigation, the decedent "was not seat belted in the back of the patrol vehicle."

The City further asserted that as Officer Gonzales drove her patrol car north on Chartres Street and crossed the intersection at Texas Avenue, where she had a green light, the car driven by Moser, who had failed to stop at a red light, "violently" struck the patrol car on its left side. Law enforcement officers took Moser, who admitted at the scene that she had previously consumed "6–7 shots of alcohol" and "shouldn't have been driving," to a hospital, where personnel measured her blood-alcohol concentration at 0.189 grams. Moser later pleaded guilty to the offense of intoxication manslaughter, and a court found her guilty and assessed her punishment at confinement for eight years.

The City argued that it, under the TTCA, did not waive its immunity based on Officer Gonzales's use or operation of a motor vehicle because the undisputed evidence shows that Moser caused the collision. It also argued that it did not waive its immunity on the ground that Gonzales had failed to secure the decedent with a seat belt because an allegation of "non-use" cannot support a waiver based on the "use" of tangible personal property under the TTCA. Further, the use of handcuffs "falls within a well-recognized exception to the waivers set forth" in the TTCA for intentional torts. And the City asserted that even if one of the waivers of immunity under the TTCA applies to the Nicolais' claims, it nevertheless retained its immunity pursuant to the TTCA "Exclusions and Exceptions" for liability for intentional torts committed by third parties⁸ and claims arising from a failure to provide, or the method of providing, police protection.⁹

To its plea, the City attached the Nicolais' Seventh Amended Petition; a "Texas Peace Officer's Crash Report"; the judgment of conviction against Moser; an excerpt of the deposition of Officer Gonzales; and an HPD "General Order No. 500-11," which provides that an officer "transporting publicly intoxicated individuals ... shall handcuff" the individuals. The City also attached an HPD "Current Information (Offense) Report," which states that the decedent "was not seat-belted" in Officer Gonzales's patrol car while being transported to the Sobering Center. After being struck by Moser, the patrol car "spun out" and struck a tree, "causing the [decedent] to be ejected out the rear window" and "thrown approximately 40-50 feet from the patrol car." She died minutes later.

In their response to the City's plea to the jurisdiction, the Nicolais argued that the City, based on Officer Gonzales's use of her patrol car, waived its immunity because she was actively operating it at the time of the collision and her use of the car "served as a cause-in-fact of the collision," which provided the "requisite nexus between the use of Gonzales's vehicle and [the decedent's] death." They asserted that the decedent's injuries are "attributable both to the fact of the collision and the fact that [the decedent] was not properly seat belted when the collision happened." Further, the use of seat belts is a part of the "operation and use" of a vehicle, and it was foreseeable that "not properly seat belting a handcuffed passenger in the backseat of a vehicle could lead to the passenger being thrown from the vehicle and injured."

Alternatively, the Nicolais argued that the City, based on a "misuse" of tangible personal property, waived its immunity because Officer Gonzales's "misuse of the seatbelt caused or contributed to [the decedent] being thrown from the vehicle during the collision." They asserted that a fact question exists as to whether Gonzales properly used the seat belt in her patrol car to restrain the decedent.

In regard to the allegation in their petition that the City, based on Gonzales's use of handcuffs, waived its immunity, the Nicolais asserted:

The salient issue in this case is the use of the motor-driven vehicle and its seatbelts, not the handcuffs that were placed on [the decedent]. Whether she was handcuffed or not, and whether this was done properly or not, the problem about which the Nicolais complain is the injuries caused by the fact she was not seat belted when the police car was involved in a collision.

Alternatively, the Nicolais further argued that the City waived its immunity because Officer Gonzales negligently implemented the City's policy requiring the use of a seat belt when transporting a person in a motor vehicle.

Finally, the Nicolais asserted that, "to the extent additional jurisdictional evidence may be necessary, the [City's plea was] not ripe for determination and discovery should be allowed to continue." To the extent that their Seventh Amended Petition did not contain sufficient jurisdictional facts, they requested that they be granted a further opportunity to amend their pleadings.

To their response, the Nicolais attached their Seventh Amended Petition; a "Texas Peace Officer's Crash Report"; an HPD "Crash Questionnaire"; a police report; the HPD Temporary Suspension of Officer Gonzales; an IACP National Law Enforcement Policy Center Model Policy regarding the Transport of Prisoners; and excerpts of the depositions of Officer Gonzales and HPD Officer T. Cox, of the Vehicular Crimes Division, Crash Reconstruction Unit.

The Nicolais also attached to their response the HPD Lieutenant A. Riddle's Internal Affairs Investigation Summary, which reflects that HPD disciplined Officer Gonzales for her "Failure to Secure [the decedent] in [a] Seat...