Opinion
03-22-00439-CV
02-10-2023
The City of Austin, Appellant v. Amy-Marie Howard, Individually and as Next Friend of D. A., a Minor, and as a Representative of The Estate of Johnathon Aguilar, and on Behalf of All Those Entitled to Recover Under the Texas Wrongful Death Act For The Death of Johnathon Aguilar and Nanette Mojica, Individually, Appellees
FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-21-007467, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING
Before Baker, Triana, and Kelly Justices.
MEMORANDUM OPINION
Thomas J. Baker, Justice.
The City of Austin appeals from the trial court's denial of its plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code § 51.014(8). This suit arises from the tragic death of Johnathan Aguilar at the hands of Dylan Woodburn, who stabbed and killed Aguilar minutes after fleeing impending restraint by a City police officer. Appellees sued the City, and other parties not before us on appeal, to recover damages for Aguilar's death. For the following reasons, we reverse the trial court's order and render judgment granting the City's plea to the jurisdiction and dismissing appellees' claims against the City.
Appellees are Amy-Marie Howard, in her capacities as Aguilar's wife, next friend for the couple's minor child, and representative of Aguilar's estate; and Aguilar's mother, Nanette Mojica.
BACKGROUND
Seeking to recover damages for the death of Aguilar, appellees filed suit against the City, the restaurant where Aguilar was killed, and the manufacturer and seller of the duty belt worn by the police officer involved in the incident. The following narrative derives from the factual allegations in appellees' original petition.
For reasons unexplained in the record, appellees did not file suit against Woodburn.
In their response to the City's plea to the jurisdiction, appellees represented that they would be filing an amended petition containing further factual allegations gleaned from recent documents produced by the City, including the results of an internal investigation of the incident. Their response cited some of the further details. However, the record contains no amended petition, and we therefore cite the factual allegations contained in appellees' live (original) petition.
The morning of January 3, 2020, Austin Police Department (APD) received a "suspicious person" call related to a man-later determined to be Woodburn-inside Bennu Coffee disturbing customers, holding a large rock, and threatening customers. After the call to the police, Woodburn attacked a Bennu customer with a large object and was eventually wrestled to the ground and restrained by multiple Bennu customers. Officer Patrick Spradlin was the first APD officer to respond to the call and entered Bennu, approached Woodburn, and directed the Bennu customers restraining Woodburn to release him. The customers complied with Officer Spradlin's order.
Officer Spradlin attempted to restrain Woodburn by placing him into handcuffs. However, during the exchange, Officer Spradlin's duty belt came loose, and the officer put his handcuffs down and, with both hands, attempted to resecure his duty belt. While Officer Spradlin attempted to resecure his duty belt, Woodburn stood up and left the coffee shop. Upon exiting Bennu, Woodburn entered an adjacent restaurant (Freebirds) through a door that its general manager, Ryan Bramlett, had left unlocked, despite earlier noticing Woodburn acting strangely and erratically while peering through the restaurant's door. Bramlett had initially locked the door behind him when he first arrived at work at 7:50 a.m. to help Freebirds employee Aguilar prepare the business for the day but, shortly thereafter, Bramlett unlocked the door to allow a knife-sharpening vendor access to the business. The knife vendor placed the freshly sharpened knives on the counter and was accompanied to the door by Bramlett, who did not lock the door after the vendor left. Moments later Woodburn entered through the unlocked door, picked up a knife from the counter, and stabbed Aguilar multiple times. Aguilar died from the stab wounds.
A few days after the incident, APD chief Brian Manley stated that an officer's duty belt coming loose "is something that we do not expect to have happened. We expect to provide our officers with the best equipment, and we expect our equipment to perform appropriately." Appellees allege that the failure of Officer Spradlin's duty belt to have "keepers" or other "integral safety components," the duty belt's failure to comply with APD policy, and the duty belt's use or misuse proximately caused Aguilar's death.
Appellees allege that "keepers" are "safety devices intended to prevent gun belts from failing (falling off) at critical moments." Wikipedia explains that keepers "wrap around the duty belt and trouser belt, ensuring that the belt stays in place, even when the officer is taking something from the belt or engaging in an altercation with a suspect." Police Duty Belt, Wikipedia, https://en.wikipedia.org/wiki/Police_duty_belt (last visited Jan. 31, 2023).
DISCUSSION
The City, as a political subdivision of the State, is immune from suit and liability unless the State consents. See City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014). Governmental immunity defeats a court's jurisdiction. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Where a government entity challenges jurisdiction on the basis of immunity, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity. Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 927 (Tex. 2015). To determine if the plaintiff has met that burden, we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties. Whitley, 104 S.W.3d at 542. When a plea to the jurisdiction challenges the sufficiency of the claimant's pleadings, as here, we determine whether the pleadings contain enough facts to demonstrate jurisdiction. See Texas Dep 't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. at 227.
The asserted source of waiver in this case is the Texas Tort Claims Act (TTCA), which waives governmental immunity in a limited number of circumstances including, relevant here, "personal injury and death so caused by a condition or use of tangible personal or real property." See Tex. Civ. Prac. & Rem. Code § 101.021. That is, the plaintiff must show that personal injury or death was "proximately caused by the condition or use of tangible property" at issue. Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998).
Proximate cause, in turn, requires both cause in fact and foreseeability. Ryder, 453 S.W.3d at 929. For a condition or use of property to be a cause in fact, the condition or use must "serve as a substantial factor in causing the injury and without which the injury would not have occurred." Id. Further, the condition or use "must have actually caused the injury." City of Dallas v. Sanchez, 494 S.W.3d 722, 726 (Tex. 2016) (per curiam) (quoting Dallas County v. Posey, 290 S.W.3d 869, 872 (Tex. 2009)). Causation is lacking if the tangible property "does no more than furnish the condition that makes the injury possible," Bossley, 968 S.W.2d at 343, and the use of property that "simply hinders or delays treatment . . . does not constitute a proximate cause of an injury," Sanchez, 494 S.W.3d at 726. To constitute cause in fact, the alleged negligent act or omission must "justify the conclusion that [the] injury was the natural and probable result thereof." Doe v. Boys Club of Greater Dall, Inc., 907 S.W.2d 472, 477 (Tex. 1995) (citations omitted).
Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Id. 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. 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, or-by extension to claims under the TTCA-as a result of the condition or use of tangible property, see Tex. Civ. Prac. & Rem. Code § 101.021. Proximate cause is generally a question for the factfinder unless reasonable minds could not differ about whether it exists, and thus we must determine whether the pleaded facts, taken as true, create a fact question regarding the causal relationship between the condition or use of property and the injury or death. See Ryder, 453 S.W.3d at 927, 929 (noting that we review trial court's ruling on plea to jurisdiction de novo).
Viewing the facts alleged in favor of appellees, as we must, we conclude that there is no fact question on either foreseeability or cause in fact. Aguilar's death cannot be said to have been the natural and probable result of the duty belt's failure to stay put, and it was not reasonably foreseeable that the belt's failure might cause the kind of harm that Aguilar suffered. See Ryder, 453 S.W.3d at 929; Doe, 907 S.W.2d at 477. Instead, Aguilar's death was preceded by an alleged extraordinary sequence of events too causally attenuated from the alleged use or condition of the duty belt to demonstrate anything more than the duty belt's mere furnishment of a condition that made Aguilar's death possible: on January 3, 2020, Officer Spradlin's duty belt either lacked an "integral safety component" such as keepers or was not in compliance with APD policy when the officer wore it to respond to a report of a man threatening Bennu customers with a weapon. Officer Spradlin arrived on the scene and entered the coffee shop. He ordered the customers who had wrestled Woodburn to the floor and were holding him down to release him. Officer Spradlin began handcuffing Woodburn but ceased doing so when his duty belt came loose, instead attempting to resecure his duty belt. Woodburn exited the coffee shop and entered the adjacent Freebirds through an unlocked door before regular business hours, picked up from a counter a recently deposited and newly sharpened knife, and repeatedly stabbed to death Freebirds employee Aguilar.
Although in its brief the City focuses on the cause-in-fact prong of proximate cause, we nonetheless may review whether the alleged facts create a fact issue on the foreseeability prong because that subsidiary question is fairly included within the City's issue statement, "Was Mr. Aguilar's death proximately caused by a condition or use of the police officer's duty belt?" See City of Austin v. Anam, 623 S.W.3d 15, 19 (Tex. App-Austin 2020, no pet.). Furthermore, jurisdictional issues relating to sovereign immunity may be raised by a court sua sponte. See id.
Even assuming that the duty belt lacked an "integral safety component" or was not in compliance with APD policy, the cases appellees cite involving tangible personal property that lacked integral safety components are distinguishable because the injuries therein were the reasonably foreseeable and direct consequence of the failure to use or provide such safety components. See, e.g., Robinson v. Central Tex. MHMR Ctr., 780 S.W.2d 169, 171 (Tex. 1989) (plaintiff known to have epilepsy drowned after mental health center allowed him to swim without life preserver); Overton Mem'l Hosp. v. McGuire, 518 S.W.2d 528, 529 (Tex. 1975) (plaintiff injured from falling out of hospital bed that lacked bed rails); see also Michael v. Travis Cnty. Hous. Auth., 995 S.W.2d 909, (Tex. App-Austin 1999, no pet.) (passerby injured by pit bulls that escaped through hole in fence). The same cannot be said for the facts alleged here.
Although the determination of proximate cause is necessarily fact specific, we believe that the facts alleged here are analogous to the cases cited by the City, wherein this Court and others have determined that when injuries are too attenuated-either temporally, physically, or causally-from the alleged condition or use of tangible personal property, the property's condition or use is not the proximate cause as a matter of law. See, e.g., Sanchez, 494 S.W.3d at 727 (malfunctioning 911 system that contributed to misidentified apartment number was not proximate cause of overdose death); Bossley, 968 S.W.2d at 343 (unlocked door at mental health center was not proximate cause of escaped patient's suicide by stepping in front of truck on freeway half mile away); City of Austin v. Anam, 623 S.W.3d 15, 19 (Tex. App-Austin 2020, no pet.) (officer's failure to fasten seatbelt on handcuffed suspect in vehicle was not proximate cause of suspect's shooting himself with gun in his possession); Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 412 (Tex. App-Fort Worth 2006, pet. denied) (improper application of handcuffs and leg restraints on suspect being transported in police vehicle was not proximate cause of his kicking out car's window and throwing himself through window and onto highway).
The real substance of appellees' complaint is that Aguilar's death was caused not by the condition or use of the duty belt but by Officer Spradlin's decision to resecure the belt instead of continuing to handcuff Woodburn or otherwise attempt to apprehend him. In our recent Anam case, this Court determined that there was no proximate cause under alleged facts with analogous causal attenuation. See Anam, 623 S.W.3d at 15. In that case, the plaintiffs alleged that a police officer was negligent in failing to refasten the seatbelt of an arrestee after discovering that his seatbelt had come undone. See id. at 17. Having undone his seatbelt, the arrestee was able to-and did-access a handgun in his waistband and use it to kill himself. See id. This Court determined that the plaintiffs had not alleged 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." Id. at 19. Instead, their pleadings asserted "in a conclusory manner" only that it was foreseeable that failing to use the seatbelt properly would cause injury to the arrestee. Id. Furthermore, this Court concluded that the plaintiffs could not allege any facts demonstrating foreseeability because the "reasonably anticipated danger or harm created from an unfastened seatbelt is not suicide by gunshot wound to the head" but injury or death resulting from a vehicle collision or abrupt stop. See id.
Similarly here, the reasonably anticipated danger or harm from an officer's duty belt falling off is the officer's resulting inability to quickly grab his gun, taser, or other equipment if needed or, in certain circumstances, a suspect's opportunity to grab such items. But one would not reasonably anticipate that the duty belt's falling off would create the danger of a suspect leaving the officer's presence, entering another business, and stabbing a person with a freshly sharpened knife recently dropped off at the establishment's counter. While those harms could reasonably be anticipated from an officer's negligent decision to resecure his duty belt instead of attempting to apprehend a dangerous suspect, the TTCA waives immunity only when the use or condition of the personal property at issue "actually caused the injury." See Sanchez, 494 S.W.3d at 726. "[T]hat some [personal] property is merely involved [in the injury] is not enough." Texas Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001) (holding that hospital's alleged use of medications on patient, which allegedly "masked" his symptoms of meningitis, did not actually cause patient's death; rather, his death was caused by alleged failure to timely diagnose him) (citing Bossley, 968 S.W.2d at 342).
We conclude that the real substance of the plaintiffs' claim is that Officer Spradlin made a negligent decision or failed to act as a reasonable officer would in the same circumstances, and we thus follow those cases finding no waiver of immunity when the plaintiff's injuries are too causally attenuated from the alleged but-for cause. See, e.g., Bossley, 968 S.W.2d at 343 ("The real substance of plaintiffs' complaint is that [Bossley's] death was caused, not by the condition or use of property, but by the failure of Hillside's staff to restrain him once they learned he was still suicidal."); Anam, 623 S.W.3d at 15 ("[T]he 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 Wall failed to detect and remove Zachary's gun before putting him in the patrol car."); Pakdimounivong, 219 S.W.3d at 412 (improper application of leg restraints and handcuffs did not cause injury but "at most created a condition, a lack of restraint, that allowed Vattana to cause his own death"); see also Doe, 907 S.W.2d at 477 (noting that connection between but-for cause and plaintiffs injuries "simply may be too attenuated to constitute legal cause").
Guided by the above-cited precedents, we conclude that the use or condition of Officer Spradlin's duty belt is too causally attenuated from Woodburn's stabbing of Aguilar to constitute a proximate cause of Aguilar's death. See Bossley, 968 S.W.2d at 343; Anam, 623 S.W.3d at 19. While Aguilar's death was tragic, we cannot agree with the trial court's determination that the pleaded facts create a fact issue concerning proximate cause. Furthermore, we conclude that the alleged facts demonstrate incurable defects in jurisdiction, conclusively negating the existence of jurisdiction, and thus plaintiffs need not be afforded an opportunity to amend their petition. See Miranda, 133 S.W.3d at 226-27. We accordingly sustain the City's first issue.
We so conclude despite the alleged additional facts appellees cite in their response to the City's plea to the jurisdiction, which facts they contend derive from recent document production related to the City's internal investigation of the incident. The additional alleged facts include (1) a more exact timeline of the events preceding Aguilar's death, indicating that less than three minutes elapsed from the time Officer Spradlin's duty belt came loose to when Woodburn was seen leaving Freebirds after stabbing Aguilar; (2) Officer Spradlin's admissions that (a) he knew he was not wearing keepers or an APD-approved duty belt but responded to the call nonetheless, despite knowing that his duty belt posed a safety concern, and (b) he was distracted when his belt fell off completely and thus did not attempt to stop Woodburn from leaving the coffee shop or give him any verbal commands; and (3) Officer Spradlin's opinion that had he been wearing keepers, his duty belt would have stayed put. These facts do not change our conclusion that the causal relationship between the use or condition of the belt and Aguilar's death is too attenuated.
Because we have sustained the City's first issue, we need not address its second issue, in which it contends that it also enjoys governmental immunity under the so-called "public duty doctrine," which provides that generally a police officer is not liable for failing to take action to prevent or stop the commission of a crime. See, e.g., Munoz v. Cameron County, 725 S.W.2d 319, 321-22 (Tex. App-Corpus Christi-Edinburg 1986, no writ).
CONCLUSION
Having sustained the City's first issue, we reverse the trial court's order and render judgment granting the City's plea to the jurisdiction and dismissing appellees' claims against the City.
DISSENTING OPINION
Gisela D. Triana, Justice.
For the reasons explained below, I respectfully dissent from the Court's analysis of the causation issue and its conclusion that the appellees' pleadings do not sufficiently allege proximate cause.
In a case in which the sufficiency of the pleadings is challenged, the plaintiffs are required to establish only that they have "alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (emphasis added). When determining whether the plaintiffs have met this burden, we liberally construe their pleadings, taking all factual assertions as true, and look to the plaintiffs' intent. Texas Dep't of Crim. Just. v. Rangel, 595 S.W.3d 198, 205 (Tex. 2020). If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Miranda, 133 S.W.3d at 226-27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id.
I disagree that the City has shown that the appellees' pleadings affirmatively negate the existence of jurisdiction. As the Court acknowledges, proximate cause is generally a question for the factfinder unless reasonable minds could not differ about whether it exists. Arkansas Fuel Oil Co. v. State, 280 S.W.2d 723, 729 (Tex. 1955) (holding that State's antitrust case should be dismissed because State's pleading, which pleaded all its evidence, did not present fact issue when State's pleading of circumstantial evidence could not establish existence of artificial price structure). Here, the City has presented no evidence to contradict the appellees' allegations that Aguilar's death was caused by former Officer Spradlin's use of a noncompliant duty belt lacking keepers-an integral safety component-which failed to work properly, causing Spradlin to interrupt his restraint of Woodburn, a violent suspect, who then escaped and killed Aguilar in less than three minutes. Instead, the City attempts to analogize to other cases to establish as a matter of law that the condition or use of the duty belt did not cause Aguilar's death.
When viewing the alleged facts in the appellees' favor, as we must, I would conclude that those facts are more analogous to cases where courts concluded that the plaintiffs alleged sufficient facts to allow a factfinder to make the ultimate determination on both foreseeability and cause in fact. Although the Court focuses its analysis primarily on foreseeability, it first concludes that "[a] reasonable person could not conclude that Aguilar's death was the natural and probable result of the duty belt's failure to stay put," meaning that the appellees have not sufficiently alleged cause in fact. (Slip op. at 6.) I disagree with this conclusion. The City does not dispute that Woodburn was an aggressive and violent person who had attacked one of the coffee shop's customers and had then been restrained by multiple other customers until Spradlin arrived and began to handcuff Woodburn. Spradlin admitted during the City's internal investigation that the purpose of keepers is to keep the belt from coming completely off the waist and that without them it will fall off. He admitted that he lost his focus on Woodburn when his belt fell off and did not attempt to stop Woodburn from leaving the coffee shop. Woodburn went next door and killed Aguilar within three minutes of Spradlin's belt falling off. Thus, I would conclude that the appellees have adequately alleged that the condition or use of the duty belt "serve[d] as 'a substantial factor in causing the injury and without which the injury would not have occurred.'" Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 929 (Tex. 2015) (quoting Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010) (citation omitted)). "Cause in fact is essentially but-for causation." Id. For example, in Ryder, the pleadings alleged that a vehicle collision would not have occurred but for a deputy sheriff's driving his cruiser toward oncoming traffic during a traffic stop, which caused the cruiser's lights to blind and distract another driver, who then crashed into the stopped vehicle. Id. The Texas Supreme Court concluded these allegations easily satisfied the standard for alleging the cause-in-fact prong of proximate cause. Id. Here, but for the duty belt's failure, there would have been no interruption of Spradlin's restraint of Woodburn, whose escape resulted almost immediately in Aguilar's death. To me, the appellees have sufficiently alleged facts that support the cause-in-fact prong of proximate cause.
As the Court notes, the appellees included additional facts in their response to the City's plea to the jurisdiction that they had obtained from the City's production of documents related to the City's internal investigation of the incident. The appellees indicated their intent to plead these additional facts in an amended petition.
I also disagree with the Court's conclusion that a reasonable person could not foresee that the duty belt's "failure might cause the kind of harm that Aguilar suffered." (Slip op. at 6.) The keepers on a duty belt are designed to keep a police officer's belt containing his taser, gun, and other equipment around his waist. If that belt falls off during an officer's restraint of a suspect, especially a violent suspect, in my opinion, it is easily foreseeable that the suspect may escape and harm or kill someone while the officer is distracted by the loss of the belt, not to mention that the suspect could take control of the officer's belt and use the gun or taser to injure or kill the officer or another innocent bystander. The law does not require foreseeability of the exact sequence of events that cause the harm. "Foreseeability requires only 'that the injury be of such a general character as might reasonably have been anticipated; and that 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 (quoting Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 551 (Tex. 1985)).
Similarly to the City here, the defendant in Ryder argued that the officer's use of his vehicle when turning around merely furnished the condition that made the death possible. Id. There the pleadings alleged that "a reasonable peace officer could have foreseen that driving westbound near an eastbound shoulder at night-with headlights and emergency lights illuminated-might confuse drivers, disrupt traffic, and lead to a collision much like the one that ultimately occurred." Id. The Texas Supreme Court concluded that "the alleged harm is of the very character that might reasonably have been anticipated," and thus "[u]pon consideration of these allegations, a reasonable juror might find the requisite nexus between the use of [the deputy's] vehicle and any injuries suffered . . . ." Id. I would reach the same conclusion in this case-that the alleged harm is of the very character that might have reasonably been anticipated and thus a reasonable juror might find the requisite nexus between the use of the duty belt and Aguilar's death.
The Court concludes that as a matter of law Aguilar's death is an injury that is too causally attenuated from the alleged condition or use of the duty belt for the duty belt's condition or use to be a proximate cause of Aguilar's death. (Slip op. at 7.) In all the condition-or-use cases that the Court relies upon to support this conclusion, the courts concluded that the condition or use of property at issue merely furnished the condition that made the injury possible, and all involved the death or injury of someone whose own actions were also a cause of their injury or death, which is not the case here. See, e.g., City of Dallas v. Sanchez, 494 S.W.3d 722, 727 (Tex. 2016) (malfunctioning 9-1-1 system that contributed to misidentified apartment number was not proximate cause of overdose death); Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998) (unlocked door at mental-health center was not proximate cause of escaped patient's suicide by stepping in front of truck on freeway half mile away); City of Austin v. Anam, 623 S.W.3d 15, 19 (Tex. App.-Austin 2020, no pet.) (officer's failure to fasten seatbelt on handcuffed suspect in vehicle was not proximate cause of suspect's shooting himself with gun in his possession); Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 412 (Tex. App.-Fort Worth 2006, pet. denied) (improper application of handcuffs and leg restraints on suspect being transported in police vehicle was not proximate cause of his kicking out car's window and throwing himself through window and onto highway). While I do not disagree that there are some cases in which a defendant's conduct may be too causally attenuated from a plaintiff's injury to constitute proximate cause, see Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477-78 (Tex. 1995) (affirming summary judgment in favor of defendant because Boys Club proved as matter of law that its failure to investigate, screen, or supervise volunteer with criminal record for driving while intoxicated was not proximate cause of volunteer's sexual assault of plaintiffs), I disagree that the City has established as a matter of law that the duty belt's failure is too causally attenuated in this case. See Ryder, 453 S.W.3d at 929-30 (concluding that "the allegations suggest that [the deputy's] operation of his cruiser might not have been attenuated from the alleged injuries" and thus disagreeing with appellate court's conclusion that deputy's use of cruiser merely furnished condition that made injury possible). To me, the facts alleged in this case are most similar to the facts alleged in Michael v. Travis County Housing Authority, 995 S.W.2d 909, 914 (Tex. App.-Austin 1999, no pet.). In Michael, this Court found that the facts alleged-that two pit bulls escaped through a defective fence and immediately attacked the plaintiff on a nearby sidewalk in close proximity to the fence-differed from the type of attenuated causal relationship that the Texas Supreme Court determined in Bossley does not satisfy the requirement to allege that the use and condition of property is the proximate cause of an injury. Id. at 913-14 (citing Bossley, 968 S.W.2d at 343).
Moreover, the Court is only able to reach its conclusion that the injury is too causally attenuated from the condition or use of the belt by recasting the appellees' allegations to center them on Spradlin's "decision to resecure the belt instead of continuing to handcuff Woodburn or otherwise attempt to apprehend him." (Slip op. at 8.) But if we construe the pleadings in the appellees' favor, looking to their intent, as we must, the real substance of their claim is that it was the condition or use of the noncompliant duty belt that lacked keepers (an integral safety component), which resulted in the foreseeable consequence of the belt falling off when Spradlin was attempting to handcuff Woodburn, distracting Spradlin from the continued restraint of a violent suspect who then escaped and in less than three minutes killed someone. In my opinion, the appellees have sufficiently alleged the foreseeability of this type of harm resulting from the duty belt's failure while Spradlin was restraining a violent suspect to allow the case to proceed so that a factfinder may make the fact-specific determination of whether proximate cause has been established.
In addition, the City asserts in its second issue, which the Court does not reach, that it retains immunity for the appellees' claims under the public-duty doctrine, which does not provide "recourse against the individual policeman for failing to take action to prevent or stop the commission of a crime." Munoz v. Cameron County, 725 S.W.2d 319, 321-22 (Tex. App.- Corpus Christi-Edinburg 1986, no writ). I would conclude this doctrine has no application here because when we construe the pleadings in the appellees' favor as required, the real substance of their allegations is that the duty belt's failure is a proximate cause of Aguilar's death because it interrupted Spradlin's restraint, not that Spradlin violated his duty to prevent or stop the commission of a crime. At most, they allege that Spradlin violated his duty to use a belt that was compliant with City policy.
Therefore, because I would affirm the trial court's order denying the City's plea to the jurisdiction, I respectfully dissent.