Gonzales v. City of El Paso, 08-97-00074-CV
| Decision Date | 07 May 1998 |
| Docket Number | No. 08-97-00074-CV,08-97-00074-CV |
| Citation | 978 S.W.2d 619 |
| Parties | Joe GONZALES and Rebecca Gonzales, Appellants, v. The CITY OF EL PASO, The City of El Paso Police Department, and John R. Scagno, J.R. Grijalva, Ramiro Gomez, Jr., Henry Fluck, and Jose Diaz, Individually and in their Official Capacities, Appellees. |
| Court | Texas Court of Appeals |
Yvonne Rangel, El Paso, for appellant.
John Gates, Asst. City Atty., Charlie F. McNabb, City Atty., Duane A. Baker, Eduardo Miranda, Ray, McChristian & Jeans, P.C., El Paso, for appellees.
Before BARAJAS, C.J., and McCLURE and CHEW, JJ.
This is an appeal from a summary judgment granted in favor of Appellees. Appellants brought a wrongful death action against Appellees after their daughter was fatally shot. For the reasons stated below, we affirm the decision of the trial court.
Appellants, Joe and Rebecca Gonzales, brought a wrongful death suit after their daughter, Darlene, was fatally shot at the Amadeus Teen Club on December 18, 1993. While inside the club, a disturbance arose and two patrons were ejected. Angered by their ejection, Alfonso Flores and Gustavo Gavaldon retrieved handguns from their automobile and fired several rounds at the club. One round penetrated a wall and seat back and struck Appellant's daughter, killing her. Flores pled guilty to the offense of involuntary manslaughter and Gavaldon was found guilty of murder.
Appellants alleged that Appellees had knowledge of the violent activities and existing dangers at the club. From August through December of 1993, the East Valley Substation had received numerous dispatch calls and address checks for the Amadeus. After conducting a curfew operation on November 20, 1993, Sergeant Bruce Fleming, a defendant below, was reprimanded by Appellees Gomez and Grijalva. He was prohibited from conducting further curfew operations and from sending patrol units to the club, unless they had been dispatched.
In frustration, Fleming wrote a memo directed to Appellee, Henry Fluck, in an attempt to inform Appellees Gomez, Grijalva, Diaz, Fluck and Scagno of the problems at Amadeus and to request guidance. Fleming warned of the escalating violence and the possibility of a homicide. He did not receive a response from anyone in the El Paso Police Department. Appellees Fluck, Diaz, Grijalva and Scagno maintain that they were not informed of the memo until after Darlene's death.
Appellants filed suit on August 2, 1994. Appellants sued Jose Fong, Jr., the owner and operator of the club, for negligence, gross negligence and premises liability. Appellees were sued for negligence in their individual and official capacities. Appellees filed their Motion for Summary Judgment on July 22, 1996. Appellees alleged that they owed no legal duty to Appellants, the officers enjoyed official or qualified immunity, the city enjoyed governmental or sovereign immunity, and that the death of Appellant's daughter was proximately caused by the criminal acts of Flores and Gavaldon. Appellants filed their Response to the Motion for Summary Judgment on October 2, 1996. The trial court heard the motion on October 7, 1996 and granted it on November 12, 1996. After a hearing on Appellees' Motion for Severance, the trial court granted the severance on November 22, 1996. This appeal followed.
Appellants bring six points of error attacking the granting of summary judgment. We begin with a discussion of the traditional standard of review for summary judgments.
The standard of review on appeal is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Cortez v. Liberty Mut. Fire Ins. Co., 885 S.W.2d 466, 469 (Tex.App.--El Paso 1994, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant's cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant's cause or claim. Gibbs v. General Motors, 450 S.W.2d 827, 828 (Tex.1970).
In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant's favor. Nixon, 690 S.W.2d at 548-49; DeLuna v. Guynes Printing Co., 884 S.W.2d 206, 208 (Tex.App.--El Paso 1994, writ denied). Where the defendants are the movants and they submit summary judgment evidence disproving at least one essential element of each of plaintiff's causes of action, then summary judgment should be granted. Perez, 819 S.W.2d at 471; Bradley v. Quality Serv. Tank Lines, 659 S.W.2d 33, 34 (Tex.1983); Cortez v. Liberty Mut. Fire Ins. Co., 885 S.W.2d at 469. Furthermore, when a trial court's order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Rogers v. Ricane Enter. Inc., 772 S.W.2d 76, 79 (Tex.1989).
In the case before us, the order granting summary judgment does not specify the grounds on which the motion was granted. On appeal, we must therefore affirm the summary judgment if any of the grounds raised by Appellees were sufficient. Weiner v. Wasson, 900 S.W.2d 316, 317 n. 2 (Tex.1995).
In Points of Error Nos. One and Two, Appellants contend the trial court erred in granting summary judgment because Appellees failed to establish that there are no material fact issues as to Appellants' cause of action and Appellees' affirmative defenses. In Point of Error No. Three, Appellants contend the trial court erred in granting summary judgment because Appellees failed to prove their defense of qualified immunity. Appellants maintain that Appellees' affidavits are defective and not probative summary judgment evidence. In Point of Error No. Four, Appellants contend that summary judgment was improperly granted because Appellees failed to prove they had no duty toward Appellants and their daughter. In Points of Error Nos. Five and Six, Appellants assert that the trial court erred in granting the City's Motion for Summary Judgment because it is liable under the Texas Tort Claims Act and because the City failed to prove sovereign immunity is applicable.
A city is immune from liability for its governmental actions, unless that immunity is waived. City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex.1995). Police protection is a governmental function. TEX. CIV. PRAC. & REM.CODE ANN. § 101.0215 (a)(1) (Vernon 1986). Therefore, the City is immune from liability unless the legislature has waived its immunity by clear and unambiguous language. See Barfield, 898 S.W.2d at 291 (citing Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980)). The Texas legislature has waived such immunity in certain limited circumstances, including:
(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 (Vernon 1986).
A governmental unit specifically retains its immunity, however, in claims arising from the failure to provide or the method of providing police or fire protection. TEX. CIV. PRAC. & REM.CODE ANN. § 101.055(3) (Vernon 1986).
In the case at bar, Appellees contend they are immune under the Texas Tort Claims Act ("the Act") because Appellants' claim arises from the failure to provide police protection. It is well established that there can be no municipal liability for a governmental entity's decision for providing police protection. See, e.g., City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex.1995); State v. Terrell, 588 S.W.2d 784, 788 (Tex.1979); Barefield v. City of Houston, 846 S.W.2d 399, 405 (Tex.App.--Houston [14th Dist.] 1992, writ denied).
In Barefield, the plaintiffs sued the city for injuries sustained outside a concert in downtown Houston. 846 S.W.2d at 402. The plaintiffs alleged that the city was negligent because it "knew or should have known of the unreasonably dangerous condition, i.e., the potential for criminal activity, and failed to correct the condition or warn appellants." Id. In affirming the summary judgment in Barefield, the court of appeals noted that if the negligence causing an injury lies in the formulation of policy, i.e., the determination of the method for providing police protection, the government remains immune from liability. Id. at 405 (citing Terrell, 588 S.W.2d at 788). The "method" of performing an act refers to the governmental decision or plan for providing police or fire protection. Id. (citing Terrell, 588 S.W.2d at 788). The government is not liable for any injury or death resulting from a government's decision to use only minimal police efforts to control a riot or to control crime in a particular area of a city. Id. (citing Terrell, 588 S.W.2d at 788). If, however, an officer or employee acts negligently in carrying out that policy, government liability may exist. Id.(citing ...
To continue reading
Request your trial
-
Abdeljalil v. City of Fort Worth, 4:98-CV-342-A.
...406 (Tex.App. — Houston [14th Dist.] 1992, writ denied) (quoting TEX.CIV.PRAC. & REM.CODE ANN. § 101.057(2)); see also Gonzales v. City of El Paso, 978 S.W.2d 619, 623 (Tex.App. — El Paso 1998, no writ) (city not liable for criminal acts of third parties under Further, the only facts allege......
-
Hobart v. City of Stafford
...itself need not be the instrumentality of the alleged harm, but it must have been a contributing factor to the harm.Gonzales v. City of El Paso, 978 S.W.2d 619 (Tex.App.-El Paso 1998, no pet.). The Texas Supreme Court has held that the waiver in Section 101.021(2) provides for governmental ......
-
Holland ex rel. Holland v. City of Houston
...that there can be no municipal liability for a government entity's decision for providing police protection." Gonzales v. City of El Paso, 978 S.W.2d 619, 621 (Tex.App. — El Paso 1998, n.w.h.); see Alvarado, 897 S.W.2d at 754; Terrell, 588 S.W.2d at 788. There is a distinction, however, bet......
-
McINTOSH v. Smith
...under circumstances where there would be private liability. Morin v. Moore, 309 F.3d 316, 328 (5th Cir.2002) (quoting Gonzales v. City of El Paso, 978 S.W.2d 619, 623 (Tex.App.-El Paso 1998, no pet.)). Texas law does not allow a plaintiff to avoid the bar of governmental immunity by describ......