Opinion
NO. 03-19-00294-CV
07-30-2020
The City of Austin, Texas, Appellant v. Sayeed Anam, Individually and as Independent Administrator of The Estate of Zachary Anam, and Cara Anam, Individually, Appellees
FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY
NO. C-1-PB-17-002191 , THE HONORABLE GUY S. HERMAN, JUDGE PRESIDING DISSENTING OPINION
The Texas Tort Claims Act (TTCA) waives immunity for claims seeking to impose liability for injury arising from the use or operation of a motor-driven vehicle or for injury caused by a condition or use of tangible personal property. See Tex. Civ. Prac. & Rem. Code § 101.021. This appeal arises from Zachary Anam's suicide by gunshot while he was handcuffed and seated in the backseat of a patrol car. The Court is asked whether the TTCA waives immunity because the police officer who arrested him did not fasten Zachary's seatbelt. The majority answers yes, concluding that the officer's failure to secure Zachary's seatbelt constitutes use or operation of a motor-driven vehicle and because the Anams have raised a fact issue regarding whether Zachary's suicide arose from the operation or use of a motor-driven vehicle. Because the Anams have not alleged facts demonstrating that the officer's failure to refasten Zachary's seatbelt or the non-use of that seatbelt proximately caused his suicide—a requirement for the waiver to apply—I respectfully dissent.
Sovereign immunity issues may be raised by a court sua sponte. See Texas Dep't of Ins. v. Texas Ass'n of Health Plans, 598 S.W.3d 417, 424 (Tex. App.—Austin 2020, no pet.) (citing Texas Dep't of State Health Servs. v. Balquinta, 429 S.W.3d 726, 745 (Tex. App.—Austin 2014, pet. dism'd); Texas State Bd. of Veterinary Med. Exam'rs v. Giggleman, 408 S.W.3d 696, 707 n.18 (Tex. App.—Austin 2013, no pet.)).
The relevant facts of this case are undisputed. Officer Ivan Wall arrested Zachary after he was detained for alleged shoplifting. Wall handcuffed Zachary's hands behind his back, placed him in a patrol car, and fastened his seatbelt. During the drive, Wall realized that Zachary's seatbelt became unfastened, but did not stop the car until Zachary stated, "I have a loaded firearm to my head." Wall immediately stopped, exited the patrol car, radioed other officers for help, and directed the patrons of a nearby restaurant to get away from the window. Four minutes later, while still handcuffed in the backseat, Zachary shot himself in the head and died.
The Anams assert that Wall's negligent failure to refasten Zachary's seatbelt falls under either the TTCA's waiver involving the operation or use of a motor-driven vehicle or the waiver involving the condition or use of tangible personal property. Both of these waivers require proximate cause. See id. § 101.021(1) (waiving immunity for "death proximately caused by . . . the negligence of an employee. . . if the . . . death arises from the operation or use of a motor-driven vehicle"), (2) (waiving immunity for "death so caused by a condition or use of tangible personal property"); Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 929 (Tex. 2015) (noting that TTCA "only reaches injuries 'proximately caused by the . . . negligence of an employee'") (quoting Tex. Civ. Prac. & Rem. Code § 101.021(1)(A)); Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998) (noting that for immunity to be waived under subsection 101.021(2), "injury or death must be proximately caused by the condition or use of tangible property").
The requisite components of proximate cause are cause in fact and foreseeability. Ryder, 453 S.W.3d at 929. Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Doe v. Boys Club of Greater Dall., Inc., 907 S.W.2d 472, 477 (Tex. 1995) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549-50 (Tex. 1985)). The danger of injury is foreseeable if its "general character might reasonably have been anticipated . . . and the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen." Ryder, 453 S.W.3d at 929 (citing Nixon, 690 S.W.2d at 551). The question of foreseeability, and proximate cause generally, involves a practical inquiry based on "common experience applied to human conduct." Doe, 907 S.W.2d at 477. It asks whether the injury "might reasonably have been contemplated" as a result of the defendant's conduct. Id. "Foreseeability requires more than someone, viewing the facts in retrospect, theorizing an extraordinary sequence of events whereby the defendant's conduct brings about the injury." Id. (citing Restatement (Second) of Torts § 435(2) (1965)).
Under the applicable standard of review, we construe the pleadings liberally in favor of the plaintiff to determine if the plaintiff has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. See Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); see also Ryder, 453 S.W.3d at 929 (reviewing factual allegations to determine whether they were sufficient to demonstrate foreseeability). Here, the Anams do not allege any facts demonstrating foreseeability—i.e., that a person of ordinary intelligence should have anticipated that the failure to refasten the seatbelt of a handcuffed occupant of the vehicle would create the danger of suicide by gunshot. Instead, the Anams' pleadings assert in a conclusory manner only that "it was foreseeable that failing to use the seatbelt properly would cause injury to Zachary." Nor could the Anams allege any such facts in this case because the reasonably anticipated danger or harm created from an unfastened seatbelt is not suicide by gunshot wound to the head, but rather is the likelihood of injury or death should the vehicle be involved in a collision or otherwise stop abruptly. See Doe, 907 S.W.2d at 477-78 (concluding that if club had discovered volunteer's DWI convictions, the "information would not have caused the club reasonably to anticipate his subsequent sexual assaults on the minor plaintiffs"); see also Ryder, 453 S.W.3d at 929 (alleged harm must be of the very character that might reasonably have been anticipated); Doe, 907 S.W.2d at 477. (explaining that danger of injury is foreseeable if its "general character . . . might reasonably have been anticipated"). To conclude otherwise would require "theorizing an extraordinary sequence of events." See Doe, 907 S.W.2d at 478. (noting that foreseeability involves practical inquiry based on "common experience applied to human conduct"); Restatement (Second) of Torts § 435(2) ("The actor's conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.").
Zachary's suicide was tragic. But the Anams have not alleged facts demonstrating that his death was proximately caused by the unfastened seatbelt, and the facts they have alleged negate their ability to replead such facts. Even when construing the pleadings in favor of the plaintiff, the real substance of the Anams' claim is that Zachary's suicide was caused, not by the failure to refasten his seatbelt or the condition of the seatbelt, but by the fact that the officer failed to detect and remove Zachary's gun before putting him in the patrol car. The TTCA does not waive immunity from such a complaint. As such, their claim does not fall under the TTCA's narrow waiver of immunity. Accordingly, I would reverse the trial court's order denying the City's plea to the jurisdiction and render judgment dismissing the Anams' appeal.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justice Triana, and Justice Smith Filed: July 30, 2020