City of Houston v. Nicolai
| Decision Date | 06 April 2023 |
| Docket Number | 01-20-00327-CV |
| Parties | CITY OF HOUSTON, Appellant v. FRANK NICOLAI AND DEBORA NICOLAI, AS PARENTS OF CAROLINE NICOLAI, DECEASED, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2013-75121
OPINION ON EN BANC RECONSIDERATION
Frank Nicolai and Debora Nicolai, as parents of Caroline Nicolai deceased, have moved for en banc reconsideration of our March 31, 2022, opinion and judgment. See Tex. R. App. P 49.5. A majority of the Court voted to grant en banc reconsideration. We withdraw our opinion of March 31, 2022 vacate our judgment of the same date, and issue this en banc opinion and judgment in their stead.
This is the City of Houston's second interlocutory appeal in the Nicolais' suit alleging that the City is vicariously liable for its police officer's negligence in operating a patrol car that proximately caused the death of their daughter. The trial court denied the City's motion for summary judgment, which asserted the trial court lacks jurisdiction because there is no waiver of governmental immunity under the Texas Tort Claims Act.[1] On appeal, the City contends the TTCA waives governmental immunity in suits arising from the negligent operation of a motor vehicle by a government employee acting within the scope of her employment only if she would be personally liable under Texas law. And here, according to the City, the police officer is shielded from personal liability by official immunity. Because we conclude the City did not establish the police officer's official immunity as a matter of law, we affirm.
Houston Police Department Officer R. Gonzales, while on patrol, responded to a call involving a suspected intoxicated driver. When she arrived, Officer Gonzales found Caroline Nicolai sitting on a curb next to her car. Caroline appeared to be intoxicated and could not stand without falling. Officer Gonzales did not arrest Caroline. Instead, for Caroline's safety, Officer Gonzales placed Caroline in handcuffs and into the back seat of the patrol car. She decided to take Caroline to the sobering center in downtown Houston, instead of to jail.
While driving Caroline to the sobering center, around 3:30 a.m., Officer Gonzales's patrol car was struck by another car driven by N. Moser, who was intoxicated. Officer Gonzales had never been to the sobering center before and had to stop several times to check the map on her mobile data terminal. Officer Gonzales was driving "very slowly" to look for the sobering center when the accident happened. As Officer Gonzales entered the intersection of Chartres Street and Texas Avenue, where she had the green light, the car driven by Moser, who failed to stop at the red light, "violently" struck the patrol car's left side. Caroline was ejected from the patrol car and sustained fatal injuries. According to an HPD investigation, Caroline was not seat belted in the back of the patrol car.
The Nicolais, Caroline's parents, filed a negligence and wrongful death suit alleging that the City was vicariously liable for Officer Gonzales's negligence in:
The Nicolais pleaded that the TTCA waived the City's governmental immunity because Caroline's death was caused by Officer Gonzales's operation or use of a police vehicle or use of tangible personal property: handcuffs and a seatbelt. See Tex. Civ. Prac. & Rem. Code § 101.021(1)-(2).
The City answered and filed a plea to the jurisdiction. The City intitally argued, among other things, that the TTCA did not waive its governmental immunity because (1) the Nicolais' claims did not arise from Officer Gonzales's operation or use of a motor vehicle but instead derived from Moser's tortious conduct; (2) the use or non-use of a seat belt is not part of the operation or use of a motor vehicle; and (3) Officer Gonzales's failure to seat-belt Caroline constituted "non-use" of personal property. The trial court denied the plea to the jurisdiction, and this Court affirmed. See City of Hous. v. Nicolai, 539 S.W.3d 378, 381 (Tex. App.-Houston [1st Dist.] 2017, pet. denied). Relevant here, the Court determined:
On remand, the City challenged the trial court's jurisdiction a second time on a new ground. In a traditional motion for summary judgment, the City argued that it retained governmental immunity under the TTCA because Officer Gonzales would not be personally liable for her allegedly negligent operation or use of the patrol car. According to the City, Officer Gonzales was entitled to official immunity because she was performing a discretionary duty when the collision occurred-transporting Caroline, an intoxicated person, to the sobering center. The City's summary-judgment evidence included, among other things, deposition testimony from the Nicolais' police-practices expert about officers' discretion under HPD's policies to effect arrests, handle intoxicated people, and transport people.
The Nicolais responded that Officer Gonzales was not performing a discretionary duty but instead was engaged in a ministerial act because (1) HPD policy and Texas law required her to secure Caroline, a handcuffed passenger, with the patrol car's seat belt, and (2) she was driving under ordinary, nonemergency circumstances when the collision occurred. The Nicolais' summary-judgment evidence included, among other things, certain HPD General Orders, affidavit or deposition testimony from their police-practices and accident-reconstruction experts,[3] and deposition testimony from Officer Gonzales and other HPD officers, including officers who reconstructed the crash.
The trial court denied the City's summary-judgment motion, and the City appeals that order.
The City argues that the trial court erred by denying its summary-judgment motion because the evidence established Officer Gonzales's official immunity, and thus the City retains its governmental immunity as a matter of law.
A plaintiff has the burden to show the trial court's subject-matter jurisdiction. Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). That burden includes an obligation to show a waiver of sovereign immunity or its counterpart, governmental immunity, in suits against the State and its political subdivisions, including cities. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019); see also Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Pol. Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 323-24 (Tex. 2016) (). A governmental unit may raise an immunity defense in a summary-judgment motion challenging the trial court's jurisdiction. See Town of Shady Shores, 590 S.W.3d at 551; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
We review the trial court's decision on a summary-judgment motion de novo. See Laverie v. Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017). To obtain a traditional summary judgment, the movant must produce evidence showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A defendant who moves for a traditional summary judgment on an affirmative defense must conclusively establish each element of the defense. See Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). Evidence is conclusive only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
In its sole issue, the City argues that the trial court erred by denying its summary-judgment motion because the evidence established Officer Gonzales's official immunity, and thus the City retains its governmental immunity.
The City, as a municipality and political subdivision of the State, cannot be vicariously liable for the actions of its employees unless its governmental immunity has been waived. See, e.g., City of Hous. v. Williams, 353 S.W.3d 128, 134 (Tex. 2011); Gomez v. City of Hous. 587 S.W.3d 891, 896 (Tex. App.-Houston [14th Dist.] 2019, pet. denied). The TTCA waives...
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