Summary
stating immunity waived only when employee is operator of vehicle but acknowledging immunity can be waived when employee exercises clear control over injured party's vehicle by leading or directing the party, and such action must take place immediately before or during the accident
Summary of this case from Townsend v. City of AlvinOpinion
No. 04-03-00458-CV.
Delivered and Filed: March 24, 2004.
Appeal from the 285th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CI-10148, Honorable Michael P. Peden, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
Jay Brent Vineyard sued the City of San Antonio, the San Antonio Police Department, and Officer Alfred Lasoya, asserting negligence claims. Vineyard appeals the order of the trial court, asserting that the trial court abused its discretion in ordering the dismissal of his suit pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code ("Code"). We affirm the trial court's judgment.
Background
According to Vineyard's affidavit, Vineyard and another man were loading a television into the back of Vineyard's car when Officer Alfred Lasoya approached them in a parking lot of a convenience store. Officer Lasoya asked both men for their drivers' licenses. Vineyard produced his military identification and told Officer Lasoya that he did not have a driver's license or proof of insurance. After verifying the individuals' identification, Officer Lasoya ordered them to leave the premises. In his affidavit, Vineyard claims that he was in a car accident approximately thirty minutes later in which he sustained physical injuries.
Vineyard filed suit against the City of San Antonio, Officer Lasoya, and the San Antonio Police Department. Vineyard, an inmate, filed the lawsuit as a pro se litigant, and his petition was accompanied by a Pauper's Oath and Unsworn Declaration. Vineyard's petition claims that Officer Lasoya's negligent failure to arrest him proximately caused his subsequent car accident. Vineyard further claims his car accident resulted from a breach of official duty, failure to properly train, failure to properly implement the law, and failure to follow standard operating procedures.
The City of San Antonio, also representing Officer Lasoya, filed a Motion to Dismiss. The City argued that the lawsuit was frivolous and malicious under section 14.003(a)(2) of the Code and that Vineyard failed to comply with the affidavit and declaration requirements of section 14.004(a). Due to Vineyard's incarceration, Vineyard participated in the hearing on the motion to dismiss by telephone. Before the hearing, Vineyard submitted the affidavit and declaration required by section 14.004(a). Thus, the City urged the trial court to dismiss the lawsuit as frivolous and malicious pursuant to section 14.003(a). After considering the parties' motions, responses and argument, the trial court found Vineyard's case to be frivolous and malicious under section 14.003(a)(2) and dismissed the lawsuit.
Discussion
We review the trial court's dismissal of an action pursuant to Chapter 14 under an abuse of discretion standard. Hickman v. Adams, 35 S.W.3d 120, 123 (Tex. App.-Houston [14th Dist.] 2000, no pet.); Samuels v. Strain, 11 S.W.3d 404, 406 (Tex. App.-Houston [1st Dist.] 2000, no pet.). A trial court abuses its discretion only if it acts without reference to any guiding rules or principles. Hickman, 35 S.W.3d at 123.
The trial court has broad discretion under Chapter 14 to dismiss an inmate's suit if it determines that the suit is frivolous. Tex. Civ. Prac. Rem. Code Ann. § 14.003 (Vernon 2000). In determining whether a claim is frivolous or malicious, the trial court may consider whether "the claim's realistic chance of ultimate success is slight, the claim has no arguable basis in law or in fact, it is clear the party cannot prove facts in support of the claim, or the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts." Tex. Civ. Prac. Rem. Code Ann. § 14.003(b) (Vernon 2000).
A trial court's dismissal of a claim without conducting a fact hearing can be affirmed on appeal only if the claim has no arguable basis in law. Retzlaff v. Texas Dep't of Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.-Houston [14th Dist.] 2002, pet. denied); Lentworth v. Traham, 981 S.W.2d 720, 722 (Tex. App.-Houston [1st Dist.] 1998, no pet.). Where no fact hearing has been held, a dismissal under Chapter 14 of the Code may be affirmed upon any of the grounds presented in the motion. Harrison v. Texas Dept. of Criminal Justice, 915 S.W.2d 882, 887 (Tex. App.-Houston [1st Dist.] 1995, no writ); see also Baughman v. Baughman, 65 S.W.3d 309, 314 (Tex. App.-Waco 2001, pet. denied) (holding that an appellate court may assume that the trial court made all findings necessary in support of an order). Vineyard alleges that Officer Lasoya's failure to arrest him for not having a driver's license allowed him to drive and directly caused his injuries in a subsequent car accident. Vineyard further claims that the City of San Antonio and the San Antonio Police Department breached their duty to train Officer Lasoya, thereby making them liable for Vineyard's damages. We conclude that Vineyard's claims have no arguable basis in law because the City of San Antonio, the San Antonio Police Department, and Officer Lasoya, in his official capacity, are immune from tort claims and because Officer Lasoya's actions did not proximately cause Vineyard's injuries as a matter of law.
As governmental entities, the City of San Antonio and the San Antonio Police Department are immune from liability for tort claims, except where the Legislature has explicitly waived such immunity. Dallas County Mental Health Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). Sovereign immunity is waived and "[a] government unit is liable for property damage, personal injury, and death proximately caused by . . . an employee acting within the scope of his employment if . . . [the injury] arises from the operation . . . of a motor vehicle . . . and the employee would be liable to the claimant under Texas law." Tex. Civ. Prac. Rem. Code Ann. § 101.021(1) (Vernon 2000). However, this waiver of sovereign immunity only occurs where the government employee, not a third party, is the operator of the motor vehicle causing the injury. City of Columbus v. Barnstone, 921 S.W.2d 268, 272 (Tex. App.-Houston [1st Dist.] 1995, no writ).
Officer Lasoya's alleged actions toward Vineyard do not constitute sufficient exercise of control over Vineyard's vehicle to impose liability on Officer Lasoya. In order for control over a vehicle to be sufficient to waive immunity, the government employee must exercise clear control over the injured party's vehicle by either leading or directing the party and such action must take place immediately before or during the motor vehicle accident. See City of El Campo v. Rubio, 980 S.W.2d 943, 946 (Tex. App.-Corpus Christi 1998, pet. dismissed w.o.j.) (finding that a police officer exercised sufficient control over the injured party's vehicle by directing her to follow him down the road); County of Galveston v. Morgan, 882 S.W.2d 485, 490 (Tex. App.-Houston [14th Dist.] 1994, writ denied) (holding that a spotter exercised enough control over a truck to waive sovereign immunity when he directed the truck how to operate). Officer Lasoya's actions are not similar to any of the circumstances where the court has waived immunity for a government employee. Officer Lasoya was not present at the time of the accident and he was not operating the motor vehicle that caused Vineyard's injuries. Therefore, Vineyard's claims against the City of San Antonio, the San Antonio Police Department, and Officer Lasoya in his professional capacity are barred by the doctrine of sovereign immunity and have no arguable basis in law.
The remaining claim that Vineyard asserts is against Officer Lasoya personally. Vineyard argues that Officer Lasoya was negligent in ordering Vineyard to leave the convenience store's premises. The elements of a negligence cause of action are a duty, a breach of that duty, and damages proximately caused by the breach of that duty. Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). The elements of proximate cause are cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). The test for cause in fact is whether the negligent "act or omission was a substantial factor in bringing about injury," without which the harm would not have occurred. Doe, 907 S.W.2d at 477 (quoting Prudential Ins. Co. v. Jefferson, 896 S.W.2d 156, 161 (Tex. 1995)). Cause in fact is not present if "the defendant's negligence did no more than furnish a condition which made the injury possible." Doe, 907 S.W.2d at 477; Bell v. Campbell, 434 S.W.2d 117, 120 (Tex. 1968). Foreseeability means that the actor, as a person of average intelligence, should have anticipated the dangers that his negligent act created for others. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 549-50 (Tex. 1985); Fetty v. Miller, 905 S.W.2d 296, 301 (Tex. App.-San Antonio 1995, pet. denied).
In order for Vineyard to prove that Officer Lasoya's conduct proximately caused his injuries, Vineyard must establish that: (1) Officer Lasoya's alleged order was a substantial factor in bringing about Vineyard's injuries; (2) Vineyard's injuries were a natural and probable result of Officer Lasoya's conduct; and (3) Officer Lasoya should have reasonably anticipated that his order created a danger to others. See Travis, 830 S.W.2d at 98. Officer Lasoya's order was not a substantial factor in bringing about the car accident in which Vineyard was later involved because the order did no more than furnish a condition which made the injury possible. Doe, 907 S.W.2d at 477. Moreover, the car accident was not a natural and probable result of Officer Lasoya's order, and Officer Lasoya could not reasonably anticipate that his order created a danger to others.
Under the facts alleged by Vineyard, Vineyard cannot satisfy the requirements to prove proximate causation as a matter of law. See Union Pump v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995) (analyzing when legal causation cannot exist as a matter of law). The trial court's order dismissing Vineyard's claims as frivolous and malicious was within the court's discretion.
Conclusion
The trial court's order dismissing Vineyard's claims is affirmed.