City of Houston v. Frank Nicolai, 01-16-00184-CV, (Tex. App. – Houston [1st Dist.], August 24, 2017)
This is an interlocutory appeal where the First District Court of Appeals affirmed the denial of the City’s plea to the jurisdiction in this wrongful death case.
City police officer R. Gonzales handcuffed Caroline Nicolai and placed her in the back seat of a patrol car. While transporting Nicolai, Gonzales’ vehicle was struck by a vehicle driven by Moser (who was later determined to be intoxicated). The impact ejected Nicolai who ultimately died from her injuries. Apparently, Nicolai was not restrained by a seat belt. The Nicolai family sued the City, which filed a plea to the jurisdiction. The trial court denied the plea and the City appealed.
The City’s plea did not challenge any jurisdictional facts and relied upon the pleadings taken as true. The City asserted the pleadings did not allege the negligent use of a motor vehicle but alleged the non-use of tangible personal property (i.e. seatbelt). For a vehicle “use” the employee must be actively using the vehicle at the time of the injury, and using the vehicle as a vehicle and not some unintended purpose. Both are present here. The “arising from” language requires a nexus which is something more than actual cause but less than proximate cause. Officer Gonzales was not simply failing to use the seatbelts, she was driving the car while failing to use the seatbelts. It was foreseeable to the court that is someone is not wearing a seatbelt while the car is being driven, an accident could cause the individual to be injured or killed. Since proximate cause is ultimately a fact question, the court held evidence exists to create the question for the jury, precluding the plea. The City argued, in the alternative, that Moser’s conduct was intentional under the law and therefore the City is not liable for intentional torts. However, regardless of whether Moser’s actions were intentional or not, the claims involve distinct and different negligence claims committed by Officer Gonzales. For the exception to apply, the intentional tortfeasor must be the governmental employee whose conduct is the subject of the claim. There is no allegation in this case that Officer Gonzales acted intentionally in regard to failing to secure the decedent in a seat belt. The City next argues waiver under the TTCA does not apply for negligently providing police protection under TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(3). The purpose of the exception is to “avoid judicial review of the discretionary policy decisions that governments must make in deciding how much, if any,” protection to provide. However, a negligent implementation of policy can subject the entity to liability. The City disciplined Gonzales for failing to follow policy and secure the detainee with a seatbelt. As a result, the plea was properly denied.
If you would like to read this opinion click here. Panel includes Justice Jennings, Justice Higley, and Justice Massengale. Opinion by Justice Jennings. The attorney listed for the City is Collyn A. Peddie. The attorney listed for the Plaintiffs is Ross A. Sears II .