Escobar v. Harris Cnty.

• Decision Date: 31 July 2014
• Docket Number: No. 01–12–00391–CV.,01–12–00391–CV.
• Parties: Delores ESCOBAR, individually, as Representative of the Estate of Luis Manuel Escobar, and as next friend of Luis Alberto Escobar, a minor, Appellant v. HARRIS COUNTY, Texas and Eric Goodney, Appellees.
• Court: Texas Court of Appeals

442 S.W.3d 621

Delores ESCOBAR, individually, as Representative of the Estate of Luis Manuel Escobar, and as next friend of Luis Alberto Escobar, a minor, Appellant

v.HARRIS COUNTY, Texas and Eric Goodney, Appellees.

No. 01–12–00391–CV.

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

July 31, 2014.

David M. Paz, Paz & Associates Law Firm, Eddie L. Gomez, Eddie Gomez, P.C., Houston, TX, for Appellant.

Vince Ryan, Harris County Attorney, Bruce S. Powers, Assistant County Attorney, Houston, TX, for Appellees.

Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.

OPINION

MICHAEL MASSENGALE, Justice.

Following an attempted traffic stop, Luis Manuel Escobar fled in his car from Harris County Sheriff's Deputy Eric Goodney. At the end of the pursuit, Luis was shot and killed as he ran from the scene. This lawsuit was brought by Luis's mother, alleging that his death resulted from the unlawfully excessive use of force by Deputy Goodney.

Appellant Delores Escobar sued appellees Harris County and Deputy Eric Goodney for wrongful death and for violation of 42 U.S.C. § 1983. Both defendants moved for summary judgment. The County pleaded governmental immunity and Deputy Goodney pleaded qualified immunity. The trial court granted summary judgment on all claims except the wrongful-death claim against the County. However, the court subsequently granted a plea to the jurisdiction dismissing that remaining claim, resulting in a final take-nothing judgment on all claims.

On appeal, since Escobar pleaded facts that amount to an intentional tort, we affirm the trial court's order granting the County's plea to the jurisdiction as to the wrongful-death claim. And because Escobar did not produce evidence to raise an issue of material fact on a theory of liability that would otherwise render the County liable for Deputy Goodney's actions, we also affirm the trial court's order granting summary judgment for the County. However, because the evidence presents genuine issues of material fact as to whether Deputy Goodney used unconstitutionally excessive force and whether his actions were shielded by qualified immunity, we reverse the summary judgment granted in his favor, and we remand the claims against him for further proceedings.

Background

This is an appeal from a grant of summary judgment, and accordingly our recitation of the facts reflects the record as viewed in the light most favorable to the nonmovant plaintiff. See City of Keller v. Wilson, 168 S.W.3d 802, 824–25 (Tex.2005) ; cf. Tolan v. Cotton, ––– U.S. ––––, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (per curiam).

Deputy Eric Goodney was driving his Harris County Sheriff's Office patrol car when he noticed Luis Escobar speeding. Deputy Goodney initiated a traffic stop by turning on his lights and siren, but Luis did not pull over, instead continuing to drive at a “high rate of speed.” After a pursuit of about a minute traveling southbound on Veterans Memorial Drive, Luis crashed into another car at the intersection with Antoine Drive. Luis's car lost control, struck several other vehicles, spun around, and came to a stop.

Deputy Goodney parked his car hood-to-hood with Luis's black Impala. Luis exited and began to run toward the rear of his car and away from Deputy Goodney. He was hindered by baggy pants that were falling down from his waist, and he tried to hold them up as he fled. Deputy Goodney, who had gotten out of his cruiser, initially fired three shots as Luis tried to flee. Luis continued running away, passing into the driveway of a nearby Walgreens pharmacy. Deputy Goodney fired three more shots, all of which struck Luis from behind. Luis collapsed and died at the scene. Deputy Goodney contends that he fired his weapon in fear for his personal safety after seeing Luis reach into his waistband where a weapon could have been concealed, but no weapon was recovered from Luis's body.

The Internal Affairs Division of the Harris County Sheriff's Office investigated the incident. As part of the investigation, officers examined the crime scene, interviewed Deputy Goodney and other witnesses, and prepared a report for the Administrative Discipline Review Committee of the Sheriff's Office. That committee reviewed the facts, credited Deputy Goodney's account that he feared for his safety, and found that the use of deadly force was justified. As a consequence, Deputy Goodney was not disciplined.

Luis's mother, Delores Escobar, filed suit against both Deputy Goodney and his employer, Harris County.¹ She alleged claims for wrongful death and under section 1983 for violation of Luis's Fourth Amendment right to be free from seizure by excessive force.

Both defendants sought summary judgment. Deputy Goodney's motion argued that the suit should be dismissed because Luis's constitutional rights had not been violated, and also on grounds of qualified immunity. The trial court granted summary judgment in favor of Deputy Goodney without specifying its reasons.

The County also filed a motion for summary judgment. It argued that there was no legal basis to hold the County liable for Deputy Goodney's actions, and also that it was immune from the wrongful-death claim. Without stating its reasons, the trial court granted summary judgment on the civil-rights claim against the County but denied summary judgment as to the wrongful-death claim. The County then filed a plea to the jurisdiction directed at the wrongful-death claim, which the trial court granted. The order disposed of all outstanding claims; Escobar appealed.

Analysis

Escobar contends that the County's plea to the jurisdiction on grounds of governmental immunity was improperly granted, asserting that her claims are for negligence, and that they are therefore cognizable under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001 –.109 (West 2011). She further argues that summary judgment should not have been awarded in favor of Deputy Goodney, reasoning that the evidence before the trial court was sufficient to create a genuine issue of material fact as to whether he used constitutionally excessive force and whether his actions were sheltered by qualified immunity. Finally, she submits that her section 1983 claim against the County should not have been resolved by summary judgment. She insists that there was adequate evidence to support each of several theories of the County's liability for use of excessive force by a law enforcement officer.

I. County's governmental immunity as to wrongful-death claim

In her second appellate issue, Escobar argues that the trial court should not have granted the County's plea to the jurisdiction because governmental immunity from her wrongful-death claim has been waived by the Tort Claims Act. She emphasizes that she alleged negligence, not an intentional tort.

A plea to the jurisdiction is a challenge to the subject matter jurisdiction of the court hearing the case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). A court cannot decide a case in the absence of subject matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex.1993). As subject matter jurisdiction will not be presumed, the plaintiff has the burden of pleading facts to establish its existence. Id. at 443–44, 446.

“Whether a pleader has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law reviewed de novo. Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is also a question of law.” Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). We look only to the plaintiff's pleadings and the evidence pertinent to the jurisdictional inquiry while eschewing examination of the merits of the case. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

Texas counties enjoy governmental immunity from suit which, to the extent it applies, deprives a court of its subject matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex.2004). The Tort Claims Act, however, waives a county's governmental immunity in certain cases. Id. It provides:

A governmental unit in the state is liable for:

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

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(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. The Act further provides that no waiver of immunity is made for any claim “arising out of assault, battery, false imprisonment, or any other intentional tort.” Id. § 101.057. To the same extent that the Tort Claims Act waives governmental immunity from liability, it also waives immunity from suit. Id. § 101.025.

Escobar alleged negligent conduct on the part of the County. She claimed in her petition that the County negligently supervised and trained Deputy Goodney. She also alleged that the County's negligence involved the use of tangible property, specifically, Deputy Goodney's firearm. She thus contends that the waiver for death caused by tangible personal property applies in this case. See id. § 101.021(2).

This court considered and rejected an almost identical argument in Harris County, Texas v. Cabazos, 177 S.W.3d 105 (Tex App.-Houston [1st Dist.] 2005, no pet.). In Cabazos, the plaintiff was shot by a law enforcement officer. 177 S.W.3d at 107. The plaintiff contended both that Harris County had been negligent in training and supervising the officer, who himself had been negligent in making an arrest and using his firearm. Id. at...