Mansfield v. C.F. Bent Tree Apt. Ltd. Partnership

• Decision Date: 11 January 2001
• Citation: 37 S.W.3d 145
• Parties: (Tex.App.-Austin 2001) Robert Andrew Mansfield, Appellant v. C.F. Bent Tree Apartment Limited Partnership, Appellee NO. 03-00-00502-CV
• Court: Texas Court of Appeals

Page 145

37 S.W.3d 145 (Tex.App.-Austin 2001)

Robert Andrew Mansfield, Appellant v. C.F. Bent Tree Apartment Limited Partnership, Appellee

NO. 03-00-00502-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

January 11, 2001

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT NO. 98-01732, HONORABLE PAUL DAVIS, JUDGE PRESIDING

[Copyrighted Material Omitted] Before Chief Justice Aboussie, Justices B. A. Smith and Patterson.

Bea Ann Smith, Justice.

Appellant Robert Andrew Mansfield sued appellee C.F. Bent Tree Apartment Limited Partnership (Bent Tree) for injuries he received from Bent Tree's security guard, an off-duty police officer. Mansfield sustained the injuries while being detained for trespass and indecent exposure. The trial court disposed of all claims against Bent Tree in two orders granting Bent Tree summary judgment. We hold that Bent Tree is not vicariously liable for Mansfield's injuries because the security guard was acting in his official capacity as a police officer by arresting Mansfield, and that Mansfield's pleadings allege a premises-liability claim that is supported by no evidence. Consequently, we affirm the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

On June 21, 1997, at about 4:30 a.m., Mansfield drove to and parked his car at Bent Tree's apartment complex. Although not a resident at Bent Tree, Mansfield said he had visited the complex, but no particular person approximately six times in the past under similar circumstances. After parking his car, Mansfield took off his t-shirt and shorts, which he hid beside an air-conditioning unit. At some point he removed his briefs and put on a woman's bra and panties. He carried his cigarettes, lighter, and two pairs of women's panties as padding in the bra. Mansfield had cut a hole in the panties so that his penis could be exposed at all times. Mansfield wandered around the area in this manner but was standing near the air-conditioning unit when Bent Tree's security guard, Robert Field, confronted him. Field, a City of Austin police officer, was a resident of Bent Tree where he performed security patrols while off-duty.

Field's incident report for the Austin Police Department described Mansfield as a "suspicious subject walking in the parking lot very early in the morning . . . [who] seemed to be looking around to see if anyone else was around." From a distance, Field stated that Mansfield appeared to be wearing skimpy jogging clothes. Field followed the suspect until he went into some bushes, at which point Field shined his flashlight on Mansfield.

Mansfield stated in depositions that when he was discovered, he began to put on his shirt. He recounted that Field "hurried up to me, he pointed a gun at my head, showed me a badge, identified himself as police, told me to lay down, face down on the ground, [and] put my hands behind my back." Field reported that Mansfield's penis was "hanging out of the underpants fully exposed" and that he suspected Mansfield went behind the bushes to masturbate. Mansfield claimed to be urinating. After Mansfield was lying on the ground, Field "walked over to the nearest window, banged on the window, turned, came back, walked over to me, gave me a violent kick to my left rib cage, went back to the window and continued to pound on the window until he woke up the people living in the apartment." Mansfield heard Field tell the residents that he was a police officer and that he wanted them to call for assistance. Police eventually arrived and took Mansfield to the police department. Mansfield suffered a ruptured spleen and fractured ribs.

Mansfield filed suit on February 17, 1998, against Bent Tree, Field, and the City of Austin. Mansfield eventually settled his claims against Field and the city. On June 2, 2000, the trial court granted Bent Tree's first amended motion for summary judgment. The summary judgment did not dispose of all of Mansfield's claims against Bent Tree. The trial court denied Bent Tree's second motion for summary judgment, which sought a final take-nothing judgment on Mansfield's remaining claims. However, the trial court granted Bent Tree's third motion for summary judgment on June 29, 2000, disposing of the remaining claims and making both orders final and subject to appeal. See Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993).

DISCUSSION

A traditional motion for summary judgment is properly granted when the movant establishes that there are no genuine issues of material fact to be decided and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). All doubts are resolved against the movant, and the reviewing court must view the evidence in the light most favorable to the non-movant. Lear Siegler, 819 S.W.2d at 471. We review such motions de novo. Thompson v. City of Austin, 979 S.W.2d 676, 679 (Tex. App. Austin 1998, no pet.).

A no-evidence summary judgment is essentially a pretrial directed verdict; thus, we apply the same legal sufficiency standard in reviewing the no-evidence summary judgment as we apply in reviewing a directed verdict. Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex. App. Austin 1998, no pet.). The appellate court, then, must determine whether the plaintiff produced any evidence of probative force to raise fact issues on the material questions presented. Id. The appellate court must consider all of the evidence in the light most favorable to the party against whom the no-evidence standard was rendered, and every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Id.

A no-evidence summary judgment is properly granted if the non-movant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the non-movant's claim on which the non-movant would have had the burden of proof at trial. Tex. R. Civ. P. 166a(i); see also Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Merrell Dow, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

Vicarious Liability

Mansfield alleges that Bent Tree was vicariously liable for Field's conduct because Field was "acting at all times material to this cause of action in the course and scope of his employment" with Bent Tree. An employer may be vicariously liable for the tortious acts of its employee under the doctrine of respondeat superior. Knutson v. Morton Foods, Inc., 603 S.W.2d 805, 807 (Tex. 1980). Respondeat superior imposes liability on the employer when the negligence of its employee, acting in the scope of his employment, is the proximate cause of another's injury. DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995).

Bent Tree's first summary judgment was based on the proposition that under Texas law, an off-duty police officer who observes a crime immediately becomes an on-duty police officer. See City of Dallas v. Half Price Books, Records, Magazines, Inc., 883 S.W.2d 374, 377 (Tex. App. Dallas 1994, no writ) (citing Hafdahl v. State, 805 S.W.2d 396, 401 (Tex. Crim. App. 1990)). Bent Tree maintains that once Field observed Mansfield engaged in criminal conduct trespassing and indecent exposure Field immediately became an on-duty police officer. As a result, Bent Tree contends that Field's conduct from that point forward was no longer within the scope of his private employment but was performance of his duties as a police officer, such that Bent Tree could not be vicariously liable for Field's conduct as a matter of law.

Whether or not Field became an on-duty police officer when he first observed Mansfield's suspicious behavior, by Mansfield's own admission Field was performing his duties as a police officer at the time Mansfield was injured. Mansfield recalled that Field showed his badge and identified himself as a police officer when he asked Mansfield to lay on the ground. Field was attempting to get police assistance when he returned to Mansfield and kicked him. In criminal cases, these actions reflect that an officer is acting in his official capacity. See Hafdahl, 805 S.W.2d at 401 ("[W]hen the police officer stopped at the scene of the accident and approached appellant shouting 'halt, halt, stop, police,' the officer was no longer off duty."); Selvage v. State, 680 S.W.2d 17, 21 (Tex. Crim. App. 1984) ("[The officer] assumed the role of a peace officer when he removed his coat to identify himself as a Deputy Sheriff and approached appellant in an attempt to deter him from wrongdoing.").

In determining the status of a police officer, we ask "in what capacity was the officer acting at the time he committed the acts for which the complaint is made?" Blackwell v. Harris County, 909 S.W.2d 135, 139 (Tex. App. Houston [14th Dist.] 1995, writ denied) (citing Glenmar Cinestate, Inc. v. Farrell, 292 S.E.2d 366 (Va. 1982)); accord Texas & N.O.R. Co. v. Parsons, 113 S.W. 914, 915 (Tex. 1908); Hudson v. St. Louis S.W. Ry. Co. of Tex., 293 S.W. 811, 813 (Tex. Comm'n App., holding approved), and reh'g overruled, 295 S.W. 577 (Tex. Comm'n App. 1927). If the officer is performing a public duty, such as the enforcement of general laws, the officer's private employer incurs no vicarious responsibility for that officer's acts, even though the employer may have directed the activities. Blackwell, 909 S.W.2d at 139. If the officer was engaged in protecting the employer's property, ejecting trespassers, or enforcing rules and regulations promulgated by the employer, however, the trier...