14th Court of Appeals held Authority was not immune from claim of accidental shooting simply because it asserted the officer did not possess the the discharging weapon

Metropolitan Transit Authority of Harris County, Texas v. Terry Smith 14-17-00807-CV (Tex, App. – Houston, [14th Dist.] Dec. 11, 2018)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claims Act/negligent use of tangible property case where the Fourteenth Court of Appeals affirmed the denial.

Houston police officer Terry Smith was on patrol accompanied by officer Gregory Hudson of the Metropolitan Transit Authority of Harris County (hereinafter “METRO”).  One officer directed vehicles to pull into a nearby Sears’ parking lot where the other officer issued citations. While Smith issued a citation, Hudson waited nearby where the officers had parked their motorcycles.  After issuing the citation, but before everyone had left the scene, Smith bent down to put his ticket book in the motorcycle’s saddlebag when a gun went off, causing a bullet to strike Smith in the abdomen. The source of the discharge was unknown. An extensive investigation eliminated a drive-by shooting, sniper attack, and a host of other scenarios. After ruling out these scenarios, investigators believed Smith’s shooting may have been an accidental discharge of Hudson’s firearm.  However, ultimately the investigation was inconclusive as to the source.  Smith later sued METRO for his personal injuries. METRO filed a plea to the jurisdiction, which was denied. METRO appealed.

METRO first asserted Smith’s pleadings, even if true, did not establish a waiver of immunity as Hudson did not “use” the weapon, even if his gun was the discharging firearm. The court disagreed. The government brings personal property into action or service or employs personal property through its employees. No case or statute states that a governmental entity must issue, provide, or furnish its employee tangible personal property before it can be liable for injuries caused by the employee’s use of tangible personal property. In fact, the court cited cases to the opposite. It is the employees negligent use of tangible personal property (from whatever source) that triggers a waiver. The court further rejected the argument that Smith must sue the employee who used the property, not METRO. If Hudson had brought the .22 weapon into use, while in the course and scope of employment, the employing entity is the proper party. Next, METRO asserted a lack of causation because no determination was made as to where the shot actually originated. While Hudson’s testimony was that he has never carried a .22 caliber weapon, Smith presented a fact issue as to the cause. The investigation eliminated various other scenarios and revealed Hudson was the only one in the determined proximity, possible angle, and position which could have caused the shot. Finally, the court rejected the argument Hudson was entitled to official immunity as METRO presented no evidence a reasonably prudent officer might have believed his actions were justified under the circumstances. Hudson’s subjective belief that he did not shoot Smith does not objectively demonstrate that a reasonably prudent officer might have believed accidentally shooting Smith while writing traffic tickets was somehow justified.  The plea was properly denied.

If you would like to read this opinion click here. Panel consists of Justice Busby, Justice Brown and Justice Jewell. The attorney listed for the Metropolitan Transit Authority of Harris County, Texas is John Bohn. The attorney listed for Smith is Brant Stogner.