City not liable in jail suicide for metal grate used by inmate who hung himself says U.S. 5th Circuit.

CONNIE ROGGE, et al v. THE CITY OF RICHMOND, TEXAS, 01-14-00866-CV ( Tex. App— Houston [ 1st Dist.] September 29,2016)

This is a jail/suicide case under the Texas Tort Claims Act (“TTCA”) where the First District Court of Appeals affirmed the granting of the City’s dispositive motion.

Richard Hollas Rogge was arrested for driving while intoxicated and placed in a holding cell at the City of Richmond Police Department. He was left alone for three hours. Rogge committed suicide by using his shirt to hang himself from a metal grate covering an air vent.  Rogge’s parents sued alleging the use or condition of the metal crate was an unreasonable risk of harm and/or a premise defect. The City filed a summary judgment motion which the trial court granted. The Rogges appealed.

The Rogges assert (1) their son’s death was caused by the City’s use of tangible personal property, (2) his death was caused by a condition of tangible personal property, (3) the discretionary-function exception to the waiver of immunity did not apply, and (4) their cause of action for a premises defect was not addressed by the motion for summary judgment. The majority opinion analyzed the facts alleged and determined that the heart of the claims are all premise defect claims, not general negligent or negligent use of tangible property claims. It held a claim cannot be both a premises-defect claim and also a claim relating to a condition or use of tangible property, so it determined the facts only allege a premise defect. A governmental unit “does not ‘use’ tangible personal property . . . within the meaning of section 101.021(2) by merely providing, furnishing, or allowing . . . access to it.” [This is the primary issue taken by the dissent noting that the majority repled the claims for the Rogges instead of ruling based on the wording in their actual pleadings.]  When waiver of immunity is premised on a condition of property, “there must be a nexus between the condition of the property and the injury.” There is no evidence that the metal grating was inherently dangerous in its intended use as a cover for the air vent. None of the jurisdictional facts show that the condition of the grate actually caused the suicide. Finally, the court notes, in response to the dissent, that the Rogges already had the opportunity to amend and cure any defects. Therefore, the summary judgment was properly granted.

The dissent’s seventeen-page opinion first complains the majority reclassified the case as a premise defect case when it should not have. Additionally, he would hold the Rogges properly pled a premise defect case anyway.

If you would like to read this opinion click here. The Panel includes Justice Keyes, Justice Massengale and Justice Lloyd. Justice Massengale delivered the opinion of the court.   If you would like to read the dissented opinion delivered by Justice Keyes click here.  If you would like to see the attorneys click here to see the docket page.