Urbach v. U.S., 87-1581
| Decision Date | 10 April 1989 |
| Docket Number | No. 87-1581,87-1581 |
| Citation | 869 F.2d 829 |
| Parties | Cynthia Hall URBACH, George I. Urbach, Jr., Veronica Shadrock and The Estate of George I. Urbach, Sr., Deceased, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Rod S. Squires, Waco, Tex., for plaintiffs-appellants.
Katherine L. Smith, Asst. U.S. Atty., Austin, Tex., Winstanley F. Luke, Asst. U.S. Atty., San Antonio, Tex., for defendant-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before GEE, SNEED * and WILLIAMS, Circuit Judges.
The family of a mental patient who was killed while on furlough from a Veteran's Administration (VA) hospital sued the United States government under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671 et seq. (FTCA). The claim was for medical malpractice. They now appeal the take nothing judgment of the district court. We affirm the judgment.
George Urbach, Sr. was involuntarily committed to a Veterans' Administration hospital in Waco, Texas, in December 1963 and diagnosed as a manic depressive. During his institutionalization, Urbach was periodically furloughed.
In February 1982, Urbach was given a furlough from the VA hospital. With the knowledge and assistance of the hospital staff, he planned a trip to Mexico City. While in Mexico, Urbach apparently accidently set fire to his motel room. He was arrested by Mexican officials and ultimately incarcerated in a Mexican prison. The district court found that while serving his sentence, Urbach was beaten to death by several unidentified fellow prisoners. 1
The widow and adult children of George Urbach, Sr., sued the United States under the FTCA claiming medical malpractice resulted in Urbach's wrongful death. The district court in a bench trial found that allowing Urbach to travel to Mexico was a negligent action by the United States (acting through the Veteran's Administration). The district court nevertheless entered judgment for the government, holding that the survivors failed to prove a necessary element of liability under Texas law, causation. The finding of negligence is not challenged by the government on appeal. The issue before us is whether the negligence, under the law, was a cause of the death.
Because the negligent act occurred in Texas, Texas law governs the issue of liability. 28 U.S.C. Secs. 1346(b), 2674; Richards v. United States, 369 U.S. 1, 9-10, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962). In a suit for medical malpractice, as in all negligence cases, Texas law requires that the plaintiff prove four elements in order to establish liability: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) actual injury to plaintiff, and (4) the only element critical to this case; was the breach a proximate cause of the injury? Lanier v. Sallas, 777 F.2d 321, 323 (5th Cir.1985); Price v. Hurt, 711 S.W.2d 84, 86 (Tex.App.--Dallas 1986, no writ).
Causation is a question of fact. In a bench trial it is reviewed under the clearly erroneous standard. Sebree v. United States, 567 F.2d 292, 293-94 (5th Cir.1978); Fed.R.Civ.P. Rule 52(a). The burden of proof regarding causation rests with the plaintiff. Gonzalez v. United States, 600 F.Supp. 1390, 1393 (W.D.Tex.1985); Bauer v. King, 700 S.W.2d 650, 651 (Tex.App.--Corpus Christi 1985, no writ).
There are two elements of proximate cause under Texas law: foreseeability and cause in fact. City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex.1987); Williams v. Steves Industries, Inc., 699 S.W.2d 570, 575 (Tex.1985). The district court held that the plaintiffs proved neither element.
City of Gladewater, 727 S.W.2d at 517. Another formulation of the foreseeability test "is whether the negligent actor should have anticipated the risk to persons ... growing out of the negligent act or omission." Saucedo v. Phillips Petroleum Company, 670 F.2d 634, 637 (5th Cir.), cert. denied, 459 U.S. 839, 103 S.Ct. 87, 74 L.Ed.2d 81 (1982).
Evidence was presented by the survivors that Urbach had been previously furloughed, had committed minor crimes, and was subsequently re-committed to the Waco VA hospital, which he considered "home." The United States presented testimony, however, that he had previously been furloughed to travel to New York and California, where he checked into "a very nice hotel and [had] a good time" and then returned to the VA without incident. Furthermore Urbach seemed rational about the trip to Mexico and had approached it in a business-like manner. The staff feared that if they had forbidden the trip or insisted that Urbach not travel to Mexico, he would have gone anyway--without the benefit of any planning or adequate funds. Once furloughed, he might go anywhere he pleased.
Thus, while the VA was found to have been negligent in allowing Urbach a furlough for the purpose of traveling to Mexico, the district court decided it could not have foreseen that he would die from being beaten by fellow prisoners in a Mexican jail. While Urbach had been in trouble on furlough before, there was no evidence presented that he had been involved in a violent altercation injurious to himself. 2 Urbach had been "classified as a fire hazard"; he smoked in bed and was careless. But he gave no indication of being an intentional fire-starter. The most the VA might have foreseen was that he could accidently start a fire which would injure himself. The prison beating was far beyond the bounds of any previous experience of Urbach's. 3 The district court found that the prisoners' actions were such that the VA could not have anticipated them.
Two Texas cases involving intervening acts by third parties support the conclusion that Urbach's death was not foreseeable. In Wolf v. Friedman Steel Sales, Inc., 717 S.W.2d 669 (Tex.App.--Texarkana 1986, writ ref'd n.r.e.), the defendant left a tractor-trailer parked at a loading dock with the load unsecured. An unknown third person obtained the keys and drove the truck until the chains that should have secured the load severed the brake line. The third party abandoned the truck on an unlit highway. Plaintiff collided with the truck and was killed. Id. at 671. The acts of the third party were held to be not foreseeable. Id. at 673-74.
Similarly, in Taylor v. Southwestern Bell Tel. Co., 483 S.W.2d 330 (Tex.Civ.App.--El Paso 1972, no writ), the court upheld a summary judgment in favor of the defendant. The telephone company negligently laid a wire across the plaintiff's yard. Two boys who were mowing the yard, hung the wire from a tree so that it was a few feet off the ground. As Taylor's wife drove into the driveway, Taylor saw the danger and attempted to pull the wire down, but she struck the wire, and he was propelled through the air "like an arrow from a bowstring." The court held that the actions of the boys were not foreseeable. Id. at 331-32.
In those cases in which liability has been imposed despite the acts of third parties, there has been evidence that the defendant knew of the potential risk created by the third party's acts, hence the resulting tort was foreseeable. For example, in Northwest Mall, Inc. v. Lubri-Lon Int'l, Inc., 681 S.W.2d 797 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.), the plaintiff slipped in an oil puddle beside the defendant's booth in a shopping mall. The defendant did not discard oil used in demonstrations, leaving it in a container in the unlocked booth. An unknown third party later caused the spill. Id. at 800-01. The court upheld a jury verdict in favor of the plaintiff, citing evidence that the defendant knew that people roamed through the mall after hours and had vandalized the booth once before. Id. at 803. In Bell Helicopter Co. v. Bradshaw, 594 S.W.2d 519 (Tex.Civ.App.--Corpus Christi 1979, writ ref'd n.r.e.), the court upheld a jury verdict in favor of the plaintiff. In this case the court held that the manufacturer should have anticipated the failure of pilots and mechanics to inspect and properly maintain the rotor system manufactured by the defendant. Id. at 533-34.
In both of these cases, the torts complained of were foreseeable by the defendants because of prior experiences. Hence the third parties' intervening actions did not break the chain of causation, or become superseding. There is no evidence to suggest that the VA should have been aware of the danger to Urbach in this case. The trial court's finding that the acts of Urbach's cellmates were not foreseeable was not clearly erroneous.
As is customary in federal district courts and state courts in Texas and elsewhere, a finding of lack of foreseeability is usually not treated as the end of the case. The issue of cause in fact is also considered, and we do so here.
The first factor to be considered in evaluating cause in fact is the proximity of the purported cause and the complained of effect. Creating a passive condition which merely makes the injury possible is not necessarily a cause in fact. "A prior or remote cause cannot be made the basis of an action for damages if it does nothing more than furnish the condition of giving rise to the occasion which made the injury possible...." Jack Williams Chevrolet, Inc. v. Bentley, 505 S.W.2d 421, 425 (Tex.Civ.App.--Fort Worth 1974, no writ).
Proximate cause (embracing both cause in fact and foreseeability) ...
To continue reading
Request your trial
-
Risenhoover v. England
... ... Proximate cause includes two elements: foreseeability and cause in fact. Urbach v. United States, 869 F.2d 829, 831 (5th Cir.1989) ... The newspaper Defendants ... ...
-
U.S. v. La Guardia
... ... of the scheme under which they were sentenced, their appeals are properly before us under 18 U.S.C. Sec. 3742(a)(1) (defendant may appeal sentence "imposed in violation of law"). See ... ...
-
Decker v. Dunbar
... ... them accountable for the foreseeable injuries that result from their conduct); accord, Urbach v. U.S., 869 F.2d 829, 831 (5th Cir.1989). Decker's claim of deliberate indifference to his safety ... ...
-
U.S. v. Levy
... ... issues challenging the validity of their convictions, our examination of their claims has led us to conclude that none of their arguments, either considered separately or in the aggregate, have ... ...