Morris v. Dallas Morning News, Inc.

• Decision Date: 13 November 1996
• Docket Number: No. 10-96-024-CV,10-96-024-CV
• Citation: 934 S.W.2d 410
• Parties: Todd MORRIS, et al., Appellants, v. The DALLAS MORNING NEWS, INC., Appellee.
• Court: Texas Court of Appeals

Page 410

934 S.W.2d 410

Todd MORRIS, et al., Appellants, v. The DALLAS MORNING NEWS, INC., Appellee.

No. 10-96-024-CV.

Court of Appeals of Texas Waco.

Nov. 13, 1996.

Rehearing Overruled Dec. 11, 1996.

David H. Martin, Malesovas & Martin, Waco, for appellants.

Matt Dawson, Dawson, Sodd, Moe, Jacobson & Beard, Corsicana, Paul C. Watler, Jenkens & Gilchrist, P.C., Dallas, for appellee.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

CUMMINGS, Justice.

Appellants Todd Morris and Jeff Schafer, officers with the Corsicana Police Department, sued the appellee, the Dallas Morning News, for allegedly libelous accounts of their involvement in the arrest of an individual, Craig Steven Thomas, who died while in police custody. The Dallas Morning News moved for summary judgment on the grounds of, inter alia, truth and no actual malice. Appellants in a single point of error contend the court erred in granting the motion. We affirm.

I. STANDARD OF REVIEW

A summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and he is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true and every reasonable inference resolved in the his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant is entitled to summary judgment if he can establish, as a matter of law, that there is no genuine issue of material fact about one or more of the essential elements of the plaintiff's cause of action or if he can establish all of the elements of an affirmative defense as a matter of law. Randall's Food Markets, 891 S.W.2d at 644; Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 1996, writ filed) (on rehearing). Where, as here, the trial court's order does not specify the grounds relied on for its ruling, the court on appeal will affirm the summary judgment if any of the grounds in the motion has merit. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996); Barbouti, 927 S.W.2d at 64.

II. THE SUMMARY JUDGMENT EVIDENCE

We will state the facts in the light most favorable to the appellants. The following is not to be understood either as an accurate or a thorough rendition of the events as they actually occurred. They are the facts as we see them through the summary judgment prism.

a. Thomas' arrest and death

On June 5, 1993, Officer Morris was patrolling an area of Corsicana known as "the Hill" where frequent illegal drug transactions are reputed to occur. While sitting in his parked patrol car that evening, Officer Morris noticed a brown, two-door Chevrolet make a quick turn a few blocks from his location. Officer Morris recognized the car as one belonging to Craig Thomas, a person known by Officer Morris to have a history of using illegal drugs. Officer Morris began to follow the brown Chevrolet, and while so doing, he noticed that the vehicle's registration permit had expired. Upon pulling over the vehicle for the expired registration, Officer Morris found Thomas in the passenger seat and a companion, Robert James, in the driver's seat. As Officer Morris spoke with Mr. James, Thomas exited the vehicle. Officer Morris ordered Thomas, who by acting very nervous and agitated appeared to Officer Morris to be intoxicated by cocaine, to get back inside the vehicle, and Thomas complied. Thomas, however, decided to once again exit the vehicle, and Officer Morris again ordered him to get back inside. Thomas returned to his seat in the vehicle, but he did not remain long before he jumped out of the car again and fled the scene.

Officer Morris chased Thomas for several blocks on foot. During such time Officer Morris witnessed Thomas throw a small container into a thicket of tall weeds. Officer Morris suspected narcotics were contained therein. Officer Morris eventually caught up to Thomas and tackled him, causing both men to tumble into a ditch overgrown with high grass. Thomas physically and violently resisted Officer Morris' efforts to subdue him. Thomas swung at Officer Morris several times, but Officer Morris was able to deflect most if not all of Thomas' attempts to hit him. During the altercation, Officer Morris, in response to Thomas' efforts to hit him, punched Thomas several times around the face and upper torso as hard as he could with a closed fist. Officer Morris used physical force to subdue Thomas for two reasons: (1) Thomas was using force against him, and (2) he believed there was a real chance that Thomas would escape.

Officer Morris was ultimately able to force Thomas on his back, whereupon he attempted to pin Thomas in that position by straddling him. Believing at the moment that he had Thomas temporarily under control, Officer Morris retrieved his walkie-talkie from his equipment belt to request assistance. Thomas, however, began to kick and squirm and struggle free. Officer Morris, afraid that Thomas might make a move for his firearm, then struck Thomas once in the head and possibly in the face with his walkie-talkie, knocking the battery out of it. Officer Morris continued to fight with Thomas, ultimately overpowered him, and finally locked his wrists together behind his back with handcuffs. Officer Morris then found the missing battery, replaced it in the walkie-talkie, and called for assistance.

Concerned that the responding officers would be unable to see him and Thomas down in the overgrown ditch, Officer Morris dragged Thomas out of the ditch and onto higher ground. Officer Schafer was the first of the officers who responded to the call to arrive at the scene. After Officer Schafer arrived, Thomas, although lying on his stomach with Officer Morris sitting on his back, continued to struggle and resist. In an effort "to get his attention," ¹ Officer Morris "spatted" Thomas across the face. A spat is a broad slap with an open hand the force of which makes a smacking sound. WEBSTER'S NEW INTERNATIONAL DICTIONARY 2412 (2nd ed. 1948). Officer Schafer then helped Officer Morris restrain Thomas so that a hobble restraint could be applied. According to Officer Morris, a hobble restraint is an approximately four-foot long piece of nylon webbing with a clip on one end and a loop on the other that some law enforcement officials use to tie the arms and legs of a suspect behind his back. Officer Schafer helped by kneeling on one of Thomas' arms and part of Thomas' back or legs while Officer Morris tied the hobble restraint. At or shortly before this time, several more Corsicana police officers arrived. Officers Morris and Schafer then carried Thomas, who was lying on his stomach, to Officer Schafer's patrol car and, with the assistance of a third officer, put him in the back seat. Before Officers Morris and Schafer put Thomas in the patrol car, they noticed only one visible injury--a small cut around his right cheekbone or temple with a small amount of blood escaping therefrom. Officer Schafer and one other Corsicana police officer transported Thomas to the police station.

A short time after Thomas was secured in the patrol car, he became quiet. Officer Schafer believed that Thomas had simply exhausted himself by resisting and did not believe anything was physically wrong with him. When Officer Schafer arrived at the police station with Thomas, and he was removed from the patrol car, his eyes appeared glassy, his breathing was irregular, and he was not responding to efforts to catch his attention. Paramedics were called immediately to the scene. Upon arrival, the paramedics found a pulse in Thomas, but they soon lost it. They defibrillated him, and his heart started beating again. The paramedics however were unable to sustain a heartbeat, and Thomas died at a local hospital a short time later.

b. The autopsies

Thomas' body was sent to the Dallas County Medical Examiner for an autopsy. Pathologist Charles B. Odom, M.D., performed the examination and on June 14, 1993, determined that Thomas died "as the result of the combined cardio (heart) respiratory (breathing) depressive effects of physical exertion and anxiety (flight, altercation with blunt force injuries, and arrest), multiple drugs (drinking alcohol, cocaine, cocaethylene [a chemical created by the mixing of cocaine and alcohol], and possibly marijuana), and a physical restraint position that to some degree, at least, compromises respiratory function." Dr. Odom further stated, "In my opinion, the combined effect of all of these factors resulted in the cardiac arrest [heart attack] and death. None of the factors, acting alone, without the associated effects of the other factors, would likely produce a lethal result." His final conclusion was that Thomas' death was an accident.

Local NAACP leaders, believing that the "blunt force injuries" inflicted upon Thomas during the incident had a larger role in Thomas' death than what Dr. Odom claimed, decided to have another autopsy performed. They hired Dr. Joye M. Carter, Chief Medical Examiner for the District of Columbia, to perform a second autopsy. On July 1, 1993, Dr. Carter released her conclusions in the following format:

Cause of Death: Multiple blunt force impact to the head, trunk and extremities with positional compromise of respiratory system following arrest for agitated behavior

Part II: Acute and chronic substance abuse with cardiac hypertrophy

Manner of Death: Accident

c. The internal investigation

An investigation into the incident was undertaken by Detective Rex Givens of the Corsicana Police Department. Detective Givens interviewed all of the officers involved, some of the witnesses at the scene, and examined the physical evidence. He concluded that neither Officer Morris nor Officer Schafer violated any department policies concerning the use of...