Travis v. City of Mesquite

• Citation: 764 S.W.2d 576
• Decision Date: 09 January 1989
• Docket Number: No. 05-87-00923-CV,05-87-00923-CV
• Parties: Brenda Ann TRAVIS, Individually and as Next Friend of Jason Wayne Travis, Amanda Michelle Travis, and Angela Gwynn Travis, Her Minor Children, and Tony Lozano and Consuelo Lozano, Individually and on Behalf of the Estate of Leonel Lozano, Deceased, Appellants, v. The CITY OF MESQUITE, Texas, Sgt. Sam McDonald, Officer Jim Duckworth, Sgt. Westal Ashby, and Officer Johnny McClure, Appellees.
• Court: Texas Court of Appeals

Page 576

764 S.W.2d 576

Brenda Ann TRAVIS, Individually and as Next Friend of Jason

Wayne Travis, Amanda Michelle Travis, and Angela Gwynn

Travis, Her Minor Children, and Tony Lozano and Consuelo

Lozano, Individually and on Behalf of the Estate of Leonel

Lozano, Deceased, Appellants, v. The CITY OF MESQUITE, Texas, Sgt. Sam McDonald, Officer Jim

Duckworth, Sgt. Westal Ashby, and Officer Johnny

McClure, Appellees.

No. 05-87-00923-CV.

Court of Appeals of Texas,

Dallas.

Jan. 9, 1989.

Rehearing Denied Feb. 21, 1989.

Darrell Panethiere, Edward H. Moore, Jr., Richard N. Countiss, Dallas, for appellants.

Ronald D. Wren, Edwin E. Wright, III, Dallas, for appellees.

Before ENOCH, C.J., and HECHT ¹ and THOMAS, JJ.

ENOCH, Chief Justice.

Tony Lozano and Consuelo Lozano, individually and on behalf of the estate of the deceased, Leonel Lozano, and Brenda Travis, individually and as next friend of her minor children, appeal an adverse summary judgment granted in their wrongful death and personal injury suit against appellees, the City of Mesquite, Texas, and Mesquite police officers McDonald, Ashby, Duckworth and McClure. Appellants complain, in twelve points of error, that (1) the summary judgment did not dispose of all issues in the case and, hence, was not an appealable judgment; (2) summary judgment was improper on the grounds asserted by the City of Mesquite and the Mesquite police officers in their summary judgment motion; and (3) the trial court erred in failing to grant their special exception to appellees' summary judgment motion. Appellants have failed to demonstrate error in the trial court's action. Accordingly, we affirm the judgment of the trial court.

Facts

The suit arose out of a collision between Brenda Travis' car and a car driven by Stephen Adkins. Shortly before the collision, Adkins was driving through the back lot of a truckstop. Mesquite police officers McClure and Ashby, who were working off-duty as security guards for the truckstop, stopped Adkins and approached his car. After asking Adkins and his two passengers for identification, the officers directed Adkins to drive his car to the front lot of the truckstop and wait there for the officers. Adkins drove through the front lot but accelerated out into the street in an attempt to leave the scene. The officers hopped in their car and pursued Adkins while notifying the Mesquite Police Department by radio. Officers Duckworth and McDonald heard the radio call and joined the chase. With the officers following, Adkins turned the wrong way onto a one-way highway access road and continued to flee at a high rate of speed. Cresting a hill, Adkins crashed head on into Travis' car killing Leonel Lozano and injuring Travis and other passengers. One fact appellants consider critical to their case is that they assert that one of the police cars was not using its siren during the chase. However, it is undisputed that at the time of the accident, the trailing police cars were behind the crest of the hill, were not involved in the accident, and none of the officers saw the collision before they arrived at the scene.

Case Posture

To redress their injuries and damages, appellants initially brought suit against Adkins, Adkins' two passengers, the four police officers, the City of Mesquite, the manufacturer of the police car sirens, and the truckstop. Appellants nonsuited their causes of action against the manufacturer, and the trial court granted summary judgment against appellants on their causes of action against the truckstop which claims were severed.

Appellants' suit continued against the police officers and the City of Mesquite. This suit was based on the officers' and the City's alleged negligence and gross negligence, and included an action for violation of appellants' civil right to be free of bodily harm. 42 U.S.C. § 1983 (1982) (subsequently referred to as section 1983). Appellees answered, and moved for summary judgment on seven grounds. The first three grounds addressed appellants' causes of action for common-law negligence alleging: (1) no notice; (2) governmental immunity; and (3) police immunity under section 24 of article 6701d of the Texas Revised Civil Statutes. The last four grounds addressed appellants' claims under section 1983 claiming: (1) no negligence causes of action exist under section 1983; (2) adequate post-deprivation remedies; (3) no showing of policy or custom proximately causing injury; and (4) police officer immunity. The court granted a partial summary judgment disposing of appellants' section 1983 causes of action.

The City of Mesquite and the Mesquite police officers supplemented their motion for summary judgment and moved for reconsideration of their motion for summary judgment against appellants on their negligence causes of action. The motion to supplement and reconsider stated two additional grounds against appellants on their common-law negligence actions: (1) lack of proximate cause and (2) the impossibility of respondeat superior liability of the City of Mesquite absent individual liability on the part of the police officers. The trial court granted leave to supplement the motion for summary judgment and agreed to reconsider its decision. After reconsideration, the trial court granted final summary judgment in favor of the City of Mesquite and the Mesquite police officers, and severed appellants' causes of action against them from appellants' causes of action against Adkins and his two passengers. Appellants brought this appeal.

Proximate Cause

Appellants argue that summary judgment was improper because each of appellees' seven grounds for summary judgment was insufficient. In addition, they contend that the motion for summary judgment failed to address each of plaintiffs' claims for relief.

It is well settled that a defendant who moves for summary judgment has the burden of showing as a matter of law that no material issue of fact exists as to the plaintiff's cause of action. See Arnold v. National County Mutual Fire Ins. Co., 725 S.W.2d 165, 167 (Tex.1987). This may be accomplished by defendant's summary judgment evidence showing that at least one element of the plaintiff's cause of action has been established conclusively against the plaintiff. See Gray v. Bertrand, 723 S.W.2d 957, 958 (Tex.1987).

The essential elements of actionable negligence consist of the following: a legal duty owed by one person to another; a breach of that duty; and damage proximately resulting from such a breach. Abalos v. Oil Development Co., 544 S.W.2d 627, 631 (Tex.1976); Ronk v. Parking Concepts of Texas, Inc., 711 S.W.2d 409, 411 (Tex.App.--Fort Worth 1986, no writ); Producers Grain Corp. v. Lindsay, 603 S.W.2d 326 (Tex.Civ.App.--Amarillo 1980, no writ). Recognizing that proximate cause is an element common to each of appellants' causes of action, the City of Mesquite and the Mesquite police officers assert summary judgment was the proper disposition of this case because, as a matter of law, the police officers were not a proximate cause of the accident.

This Court has previously examined the issue of a police officer's liability to an innocent third party who is injured or killed in an accident involving a suspect being pursued by a police officer. See Dent v. City of Dallas, 729 S.W.2d 114 (Tex.App.--Dallas 1986, writ ref'd n.r.e.). In Dent, the police officer stopped the suspect but did not immediately arrest him. The suspect then drove away, instigating a high speed chase. During the chase, the suspect ran a stop sign and collided with a car driven by plaintiffs' decedent who later died of his injuries. The Court, in that case, held that the sole proximate cause of the accident, as a matter of law, was the suspect's grossly negligent behavior in fleeing from the police officer and by ignoring all traffic laws during his flight until he crashed into the decedent. Dent, 729 S.W.2d at 116.

We consider Dent instructive in this case. Dent based its result on the conclusion that as a matter of law the suspect was the sole proximate cause of the injuries. However, we consider the better reasoning to be that, as a matter of law, in circumstances such as these, the police officers are not a proximate cause of the injuries. This is in accord with the authority in many of our sister states. See West Virginia v. Fidelity & Casualty Co., 263 F.Supp. 88, 90-91 (S.D.W.Va.1967); Bratt v. San Francisco, 50 Cal.App.3d 550, 123 Cal.Rptr. 774 (1975); Pagels v. City and County of San Francisco, 135 Cal.App.2d 152, 153-156, 286 P.2d 877, 878 (1955); Sammor v. Savannah, 176 Ga.App. 176, 335 S.E.2d 434, 436 (1985); Breck v. Cortez, 141 Ill.App.3d 351, 95 Ill.Dec. 615, 621, 490 N.E.2d 88, 94 (1986); Chambers v. Ideal Pure Milk Co., 245 S.W.2d 589, 590-91 (Ky.1952); Mitchell v. New York, 108 A.D.2d 1033, 1034, 486 N.Y.S.2d 97, 99 (1985); Simmen v. New York, 81 A.D.2d 398, 442 N.Y.S.2d 216, 218 (1981); Wrubel v. New York, 11 Misc.2d 878, 879-81, 174 N.Y.S.2d 687, 689-90 (Ct.Cl.1958); Annot., Liability of governmental unit or its officers for injury to innocent occupant of moving vehicle, or for damage to such vehicle, as result of police chase, 4 A.L.R. 4 th 865 (1981); Annot.,Liability of governmental unit or its officer for injury or damage from operation of vehicle pursued by police, 83 A.L.R.2d 452 (1962). Contra Tetro v. Town of Stratford, 189 Conn. 601, 603-07, 458 A.2d 5, 7-8 (1983); Fiser v. City of Ann Arbor, 417 Mich. 461, 471-75, 339 N.W.2d 413, 417-18 (1983); Kuzmics v. Santiago, 256 Pa.Super. 35, 38-41, 389 A.2d 587, 589-90 (1978). With this refinement, we continue to follow the reasoning of Dent.

Appellants stress that Dent creates bad policy. They argue that the current rule encourages police officers to disregard the consequence of pursuing a fugitive. We disagree; to the contrary, we believe appellants' position would be bad policy. Many factors influence an officer's decision to pursue--his training, experience, and...