Petta v. Rivera

• Decision Date: 28 March 1996
• Docket Number: No. 13-94-045-CV,13-94-045-CV
• Citation: 923 S.W.2d 678
• Parties: Melinda PETTA, Appellant, v. Adrian RIVERA, Individually and in his Official Capacity as Texas Department of Public Safety Highway Patrolman and Texas Department of Public Safety, Appellees.
• Court: Texas Court of Appeals

Page 678

923 S.W.2d 678

Melinda PETTA, Appellant, v. Adrian RIVERA, Individually and in his Official Capacity as Texas Department of Public Safety Highway Patrolman and Texas Department of Public Safety, Appellees.

No. 13-94-045-CV.

Court of Appeals of Texas Corpus Christi.

March 28, 1996.

Opinion OverrulingRehearing June 6, 1996.

Roy S. Dale, Katie Pearson Klein, William D. Mount, Jr., McAllen, for appellant.

Dan Morales, Attorney General, Austin, Jorge Vega, First Asst. Attorney General, Austin, Ann Kraatz, Assistant Attorney General, Chief, Law Enforcement Defense Div., Austin, Drew T. Durham, Deputy Attorney General for Criminal Justice, Austin, Demetri Anastasiadis, Assistant Attorney General, Austin, Richard M. Berry, Assistant County Attorney, Corpus Christi, for appellees.

Before SEERDEN, C.J., and YANEZ and CHAVEZ, JJ.

OPINION

SEERDEN, Chief Justice.

This is a suit for personal injuries against the Texas Department of Public Safety (DPS) and its trooper, Adrian Rivera. Appellant, Melinda Petta, sued appellees, the DPS and Rivera, under the Texas Tort Claims Act, and she sued Rivera individually, for injuries she allegedly received following a high-speed chase. The trial court granted two summary judgments for appellees. By seventeen points of error, Petta asserts that the court erred in granting the summary judgments. We reverse and remand.

In reviewing a summary judgment, we must accept as true evidence in the nonmovant's favor, indulging every reasonable inference and resolving all doubts in the nonmovant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Following this standard, the facts, viewed in the light most favorable to appellant, as follows: About January 15, 1990, Melinda Petta and her two children, six-year-old Nicole and three-year-old David, were traveling in a Suburban on rural FM-70 towards Corpus Christi. At approximately 4:40 p.m., DPS Trooper Adrian Rivera stopped her for speeding. She gave her driver's license and proof of insurance to him upon request. He returned to his patrol car, and she closed her window due to the rain. Returning to the Suburban, he ordered her out of the vehicle. When she asked for a reason, he lost his temper, became agitated, irrational, threatening, and verbally and physically abusive. She locked her door, and he called her a " 'bitch.' " He advised her to " 'roll down the goddamned window,' " and he tried to yank her door open. She was afraid and remained inside. He stated that he was going to tow her vehicle with her and the children inside. He pulled his patrol car in front of the Suburban. He screamed at her, threatening to smash her driver's side window. He beat on her window at least 30 times with his nightstick. When she refused to roll down the window, he said, " 'I'll just have to kill you, bitch.' " He pointed his handgun at her, and she fled. As she left, Rivera shot at the Suburban with his handgun. He followed her, trying to run her off the road. At one point, he aimed his 12-gauge riot shotgun out his window at her in a threatening manner. He shot at her again as she drove to her home.

Petta alleged that the DPS was liable to her for severe mental anguish, grief, emotional pain, torment, indignation, shame, despair, suffering, and public humiliation proximately caused by the wrongful acts, omissions, and negligence of the DPS and its officer, Rivera, while acting within the scope of his employment. Additionally, she sued Rivera in his individual capacity for assault, battery, aggravated assault, reckless conduct, and for committing terroristic threats.

Appellees filed two summary judgment motions. In their first motion, they asserted that Petta did not give them actual notice of her claim as required by section 101.101(a)(1) of the Civil Practice & Remedies Code. Their second motion asserted 1) official immunity, 2) collateral estoppel, 3) that the court had sustained special exceptions that Petta could not sue the State for intentional tort, negligent infliction of emotional distress, and constitutional violations, 4) privilege, 5) sovereign immunity, 6) that the DPS was not liable for the intentional torts of its employees, and 7) that Rivera lacked intent to commit the tort of intentional infliction of emotional distress.

Petta filed responses to both summary judgment motions.

The trial court granted summary judgment, stating in its order that 1) Petta was collaterally estopped from suing appellees, 2) appellees' conduct did not constitute intentional infliction of emotional distress, 3) Rivera was immune from suit based on the doctrine of official immunity, and 4) appellees did not receive actual notice that plaintiff had received some injury within six months after the incident.

To prevail on a summary judgment motion, a movant must establish that there is no genuine issue concerning any material fact and that the movant is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995) (per curiam). A defendant who conclusively negates at least one of the essential elements of each of the plaintiff's causes of action or who conclusively establishes all of the elements of an affirmative defense is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).

The First Summary Judgment

By point thirteen, Petta asserts that the court erred in granting summary judgment for appellees because they did not plead and verify in their answer that they did not receive notice of the claim as required by Rule 93(12).

Section 101.101(a) of the Civil Practice & Remedies Code provides that a governmental unit is entitled to receive notice of a claim against it not later than six months after the day that the incident giving rise to the claim occurred. Notice must reasonably describe 1) the damage or injury claimed, 2) the time and place of the incident, and 3) the incident. Section 101.101(c) provides that the formal notice requirements of section 101.101(a) "do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged." TEX.CIV.PRAC. & REM.CODE ANN. § 101.101(c) (Vernon 1986).

Rule 93(12), Texas Rules of Civil Procedure, provides, in relevant part:

A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit.

* * * * * *

12. That notice and proof of loss or claim for damage has not been given as alleged. Unless such plea is filed such notice and proof shall be presumed and no evidence to the contrary shall be admitted. A denial of such notice or such proof shall be made specifically and with particularity.

TEX.R.CIV.P. 93(12) (emphasis added).

Petta alleged that the DPS had actual notice of her claims and injuries from the date of the incident due to its investigation of the incident, and that this actual notice satisfied section 101.101. In their second-amended answer, appellees denied that they received actual notice of injury based upon their internal investigation report. The record included a copy of the report. We hold that appellees' denial that they received notice of Petta's claims appeared of record. This being the case, they were not required to verify their answer. We overrule point thirteen.

By points one and three, Petta asserts that the court erred in granting summary judgment for appellees because a fact issue exists whether the DPS had actual knowledge that she received some injury under section 101.101(a)(1) of the Tort Claims Act.

The Texas Supreme Court has held that actual notice to a governmental unit requires knowledge of (1) a death, injury, or property damage, (2) the governmental unit's alleged fault producing or contributing to the death, injury, or property damage, and (3) the identity of the parties involved. Cathey, 900 S.W.2d at 341.

Petta's claims against appellees amount to a claim for negligent infliction of emotional distress. In Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993), the supreme court held that there is no general duty in Texas not to negligently inflict emotional distress. A claimant may recover mental anguish damages only in connection with a defendant's breach of some other legal duty. Boyles, 855 S.W.2d at 594. In City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex.1994), the supreme court discussed the duty owed by peace officers engaging in a high-speed chase. In that case, Bradley Chambers received serious injuries when police were chasing a motorcycle in which he was riding as a passenger. His parents sued several police officers for common-law negligence and deprivation of rights under 42 U.S.C. § 1983. The trial court granted summary judgment on both claims. On appeal, the police officers contended that they were not negligent as a matter of law because they owed no duty to Bradley. The supreme court stated that article 6701d, section 24(e) (Vernon 1977) provides that authorized drivers of emergency vehicles have " 'the duty to drive with due regard for the safety of all persons.' " The court stated that the scope of that duty included Bradley. Chambers, 883 S.W.2d at 653.

Appellees' summary judgment proof included the DPS's investigation and report of the incident. It showed that after Rivera stopped Petta's vehicle, he became upset with her because she would not get out of the vehicle or roll down her window. He called her a bitch and tried to break her driver's side window. He pointed his gun at her face, and said, " 'Then I'll just have to kill you, Bitch!' " At that point, she fled. He pursued her at speeds reaching 80 to 90 mph. He tried to pass her, cut her off, and run her off the road. She was worried that she would get into a wreck and injure the children. He fired two shots at her. When he fired the first shot, her...