Claudia N. Pineda v. the City of Houston

Opinion Issued July 8, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00125-CV

CLAUDIA NAVARRO PINEDA, INDIVIDUALLY; SUSANA OREGON

NAVARRO, ADMINISTRATRIX OF THE ESTATE OF PEDRO OREGON

NAVARRO, DECEASED; ANA ISABEL LORES, AS NEXT FRIEND OF

ASHLEY OREGON-LORES, MINOR DAUGHTER OF PEDRO OREGON

NAVARRO, DECEASED; BLANCA LIDIA VIERA, AS NEXT FRIEND OF

BELINDA MARILI VIERA, MINOR DAUGHTER OF PEDRO OREGON

NAVARRO, DECEASED, Appellants

V.

CITY OF HOUSTON, Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 02-29035

O P I N I O N

Claudia Navarro Pineda, individually; Susana Oregon Navarro, administratrix

of the estate of Pedro Oregon Navarro; Ana Isabel Lores, as next friend of Ashley

Oregon-Lores, minor daughter of Pedro Oregon Navarro; and Blanca Lidia Viera, as

next friend of Belinda Marili Viera, minor daughter of Pedro Oregon Navarro,

appellants, appeal from the trial court’s granting of a plea to the jurisdiction in favor

of the City of Houston (City), appellee, based upon governmental sovereign

immunity. We affirm.

Background

On July 11, 1998, Houston Police Officers P.A. Herrada and J.R. Willis made

a traffic stop of a vehicle occupied by Nicholas Stutes, John Stutes, and Ryan Baxter.

Baxter was arrested for providing alcohol to minors and public intoxication. He also

admitted to drinking alcohol and purchasing and smoking crack cocaine earlier that

night. At the time, Baxter was on probation. On the way to the police station, Baxter

offered to provide information about his claimed crack cocaine dealer, Rogelio

Navarro, the brother of the decedent, Pedro Oregon Navarro, in exchange for his

release. Herrada and Willis contacted other members of their unit, the Houston Police

Department’s (HPD) Southwest Gang Task Force.

Baxter subsequently provided information to the officers. Although the

officers knew they were violating HPD policy by using a probationer as an informant

without the permission of the probation authority and the supervising court, the

officers and their supervisor agreed on a plan of action in which Baxter was to

arrange a meeting to buy cocaine from Rogelio at a local restaurant. When Rogelio

failed to appear at the restaurant, Baxter traveled with the police to Rogelio’s

residence at 6711 Atwell, apartment 16. The officers then devised a plan so that they

could enter the home; Baxter was to knock on the door, and when the door opened,

Baxter was to fall down in the doorway to prevent the door from closing as the

officers rushed in. The officers’ plan did not include obtaining consent to search the

apartment.

When no one answered the door at Rogelio’s residence, the group dispersed.

While Herrada and Willis were transporting Baxter to jail, Rogelio contacted Baxter

on his cell phone. Baxter set up another cocaine buy.

Officers Herrada and Willis, together with Officers Barrera, Tillery, Perkins,

and the gang task force supervisor, Sergeant Strouse, reassembled and went with

Baxter to Rogelio’s apartment again. While Baxter knocked on the door, the officers

waited by a column at the foot of the stairs, and initiated their plan of action.

Without consent and without a search warrant, the officers entered Rogelio’s

apartment.

There were several people in the apartment, including Rogelio Navarro and

Pedro Oregon Navarro. As the officers moved further into the apartment, and into the

back room occupied by Pedro Oregon Navarro, Officer Barrera accidently shot

Officer Tillery in the back. This shooting was followed by a fusillade of over 30

rounds of ammunition from the officers, killing Pedro Oregon Navarro. The other

occupants of the apartment were arrested. A subsequent search of the apartment

failed to find drugs, but did find a handgun close to Pedro’s body. An autopsy

performed on Pedro’s body showed that no drugs were in his system.

The HPD’s Internal Affairs Division investigated the incident. The division

concluded that Officers Strouse, Tillery, Barrera, Willis, Herrada, and Perkins had

violated several of HPD’s General Orders, resulting in their termination by the HPD.

A grand jury, however, failed to find a bill of indictment for murder against the

officers.

Appellants filed suit in federal court against the City of Houston pursuant to

42 United States Code section 1983 ; they included supplemental state law claims

under the Texas Wrongful Death Act

and the Texas Tort Claims Act.

The federal

district court granted summary judgment to the City on the section 1983 claims and

dismissed the state law claims with prejudice. Pineda v. City of Houston, 124 F.

Supp.2d 1057, 1089-90 (S.D. Tex. 2000). On appeal, the Fifth Circuit affirmed the

district court’s rendition of summary judgment, but modified the court’s order

dismissing the state claims to provide that the dismissal of the state law claims was

without prejudice. See Pineda v. City of Houston, 291 F.3d 325, 335-36 (5th Cir.

2002).

On June 7, 2002, appellants filed suit in state court against the City, alleging

their claims under the Texas Tort Claims Act and the Texas Wrongful Death Act. On

December 9, 2002, the City filed a plea to the jurisdiction. The trial court conducted

a hearing on the plea to the jurisdiction on December 20, 2002, and, on January 8,

2003, the trial court signed an order granting the City’s plea and dismissing the case

for want of subject matter jurisdiction. This appeal followed.

Discussion

In their sole issue presented, appellants challenge the trial court’s granting of

the City’s plea to the jurisdiction, based on the doctrine of sovereign immunity, and

its dismissal of their claims. Standard of Review

A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction

to hear the case. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000).

Subject matter jurisdiction is essential to the authority of a court to decide a case and

is never presumed. Tex. Ass’n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 443-44 (Tex. 1993). The plaintiff has the burden to allege facts affirmatively

demonstrating that the trial court has subject matter jurisdiction. Id . at 446;

Richardson v. First Nat’l Life Ins. Co. , 419 S.W.2d 836, 839 (Tex. 1967).

The existence of subject-matter jurisdiction is a question of law. State Dep’t

of Highways & Pub. Transp. v. Gonzalez , 82 S.W.3d 322, 327 (Tex. 2002); Mayhew

v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998). Therefore, we review de

novo the trial court’s ruling on a plea to the jurisdiction. Id. In deciding a plea to the

jurisdiction, a court may not consider the merits of the case, but only the plaintiff’s

pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron

v. Brown , 80 S.W.3d 549, 555 (Tex. 2002).

Immunity

Under the doctrine of sovereign immunity, a governmental entity cannot be

held liable for the actions of its employees unless there is a constitutional or statutory

provision waiving such immunity. See City of Amarillo v. Martin, 971 S.W.2d 426,

427 (Tex. 1998). Sovereign immunity can be waived only through the use of clear

and unambiguous language. County of Cameron , 80 S.W.3d at 554 ; Univ. of Tex.

Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994); City of Houston v. Rushing ,

7 S.W.3d 909, 914 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). The Texas

Legislature enacted the Texas Tort Claims Act (TTCA) to waive sovereign immunity

in certain limited circumstances. See Dallas County Mental Health & Mental

Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998). The TTCA provides:

A governmental unit in the state is liable for:

(1) property damage, personal injury, and death

proximately caused by the wrongful act or omission or the

negligence of an employee acting within his scope of

employment if:

(A) the property damage, personal injury, or death arises

from the operation or use of a motor-driven vehicle or

motor-driven equipment; and

(B) the employee would be personally liable to the

claimant according to Texas law; and

(2) personal injury and death so caused by a condition or

use of tangible personal or real property if the

governmental unit would, were it a private person, be liable

to the claimant according to Texas law.

Tex. Civ. Prac. & Rem. Code Ann. § 101.021. A city, such as Houston, as a

political subdivision of the State, falls within the parameters of the TTCA. See Tex.

Civ. Prac. & Rem. Code Ann. § 101.001(3)(B) (Vernon Supp 2004).

For a governmental entity such as the City to be held liable for the acts of its

employee under the TTCA: (1) the claim must arise under one of the three specific

areas of liability listed in section 101.021 (property damage, personal injury, and

death); and (2) the claim must not fall within an exception to the waiver of sovereign

immunity. See Scott v. Prairie View A & M Univ. , 7 S.W.3d 717, 719 (Tex.

App.—Houston [1st Dist.] 1999 pet. denied); City of Hempstead v. Kmiec , 902

S.W.2d 118, 122 (Tex. App.—Houston [1st Dist.] 1995, no writ). The applicable

exceptions to the waiver of sovereign immunity are found in section 101.057 of the

Texas Civil Practice and Remedies Code, which provides:

This chapter [waiving sovereign immunity] does not apply

to a claim:

(1) based on an injury or death connected with any act or

omission arising out of civil disobedience, riot,

insurrection, or rebellion; or

(2) arising out of assault, battery, false imprisonment, or

any other intentional tort, including a tort involving

disciplinary action by school authorities.

Tex. Civ. Prac. & Rem. Code Ann. § 101.057 (Vernon 1997). Thus, a governmental

entity does not waive its sovereign immunity to a party’s claim for personal injury or

death if that claim arises out of an intentional tort.

Parties’ Contentions

In their petitions, appellants alleged that the court “has jurisdiction over this

claim under the Texas Tort Claims Act because the Texas Legislature waived

Defendant City of Houston’s sovereign immunity for claims involving personal injury

and death caused by the negligent use of tangible personal property, if the defendant

would, were it a private citizen, be liable to Plaintiffs according to Texas law.” They

claimed that Officers Barrera and Perkins, who were at all times acting within the

course and scope of their employment with the City of Houston, and had a duty to

exercise ordinary care and use their firearms reasonably and prudently, were negligent

in using their service firearms, and that this negligence was a proximate cause of their

damages and Pedro’s death.

In its plea to the jurisdiction, the City alleged, first, that appellants failed to

circumvent the intentional tort exclusion of the TTCA, section 101.057(2). The City

alleged, second, that even if the officers’ acts were not intentional torts, the waiver

of immunity under section 101.021(2) of the TTCA for personal injury and death

caused by the negligent use of personal property is inapplicable to waive the City’s

immunity for the officers’ acts because the officers’ acts were not within the scope

of their employment. Finally, the City contended that, even if the officers’ acts were

within the scope of their employment, they were discretionary acts for which the

officers enjoyed official immunity, and therefore the City could not be derivatively

liable. DeWitt v. Harris County , 904 S.W.2d 650, 653 (Tex. 1995).

The first question for this Court, therefore, is whether Pedro’s death was

proximately caused by the officers’ intentional torts or by their negligence.

Intentional Tort Exclusion

While the TTCA waives the sovereign immunity of a governmental entity for

personal injury and death arising out of the use of tangible personal property, it

specifically excludes waiver of immunity for a claim “arising out of assault, battery,

false imprisonment, or any other intentional tort.” See Tex. Civ. Prac. & Rem. Code

Ann. §§ 101.021(2), 101.057(2). Here, the City claims that it has immunity because

the officers’ actions were intentional and appellants have failed to circumvent the

intentional tort exclusion. Appellants, on the other hand, contend that the intentional

tort exception does not apply because Pedro’s death was proximately caused by the

officers’ negligent performance of their official duties.

Appellants contend that Officer Barrera’s initial negligent discharge of his

firearm, accidentally shooting Officer Tillery in the back, resulted in several false

impressions

that resulted in the officers’ intentional shooting and killing of Pedro.

Citing Delaney v. University of Houston, 835 S.W.2d 56, 60 (Tex. 1992), appellants

claim that section 101.057(2), the intentional tort exception, cannot be read so

broadly as to except from the waiver of immunity any claim for injuries resulting

from an intentional tort when negligent and intentional acts both contribute to the

occasion of injury.

In Delaney , the Texas Supreme Court held that a negligence action by a rape

victim against a state university was not barred by sovereign immunity where the

plaintiff’s cause of action was based on the university’s alleged failure to provide her

a secure residence and to fix a broken lock. The Supreme Court noted that section

101.057(2) of the TTCA precludes the extension of the TTCA’s waiver of immunity

to claims “arising out of assault, battery, false imprisonment, or any other intentional

tort.” Id. at 59 . However, it stated that the phrase “arising out of” in section

101.057(2) requires a certain nexus for the provision to apply; that nexus is between

the claim and an intentional tort, and the intentional tortfeasor must be the

governmental employee whose conduct is the subject of complaint. Id. at 59 . In that

case, the intentional tortfeasor, the rapist, was not the governmental employee whose

conduct was the subject of Delaney’s claims against the university.

Here, the gravamen of appellants’ claim is that City of Houston police officers

wrongfully killed Pedro Oregon Navarro. Thus, in contrast to Delaney , the

tortfeasors are the governmental employees whose conduct is the subject of the

complaint, thereby satisfying section 101.057(2)’s requirement of a nexus between

appellants’ claims against the City and the intentional tort. If a plaintiff pleads facts

which amount to an intentional tort, no matter if the claim is framed as negligence,

the claim generally is for an intentional tort and is barred by the TTCA. See Tex.

Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001); City of Laredo v.

Nuno, 94 S.W.3d 786, 789 (Tex. App.—San Antonio 2002, no pet.); Tarrant County

Hosp. Dist. v. Henry, 52 S.W.3d 434, 450 (Tex. App.—Fort Worth 2001, no pet.);

Medrano v. City of Pearsall, 989 S.W.2d 141, 144 (Tex. App.—San Antonio 1999,

no pet.). A plaintiff cannot circumvent the intentional tort exception by couching his

claims in terms of negligence. See Huong v. City of Port Arthur, 961 F. Supp. 1003,

1008-09 (E.D. Tex. 1997) (plaintiffs cannot circumvent intentional tort exception to

waiver of liability by simply pleading negligence when shooting event upon which

they base their claims is actually intentional tort) ; Petta, 44 S.W.3d at 580 (plaintiff’s

claim that officer was negligent in ignoring police procedure did not obviate fact that

conduct was intentional; conduct complained of—officers’ hitting car window,

aiming gun, blocking car in with police cruiser, and firing at car’s tires—was clearly

intentional; despite plaintiff’s claim that injuries were proximately caused by officer’s

and department’s negligence, plaintiff’s allegations fit squarely within section

101.057’s exclusion); Nuno , 94 S.W.3d at 788 (despite plaintiff’s efforts to phrase

claims in terms of officer’s negligent failure to properly place plaintiff in police

vehicle and negligent indifference of other officers and city, focus of plaintiff’s

claims against city was officer’s intentional tortious acts of using excessive force to

arrest plaintiff and to illegally seize car, and was barred); Medrano, 989 S.W.2d at

144 (where focus of claim was on officers’ alleged violent and negligent beating of

handcuffed driver, intentional tort exception could not be circumvented merely by

alleging negligent hiring, negligent training, and negligent failure to train).

In this case, appellants alleged in their petition that the officers were negligent,

failed to exercise sound judgment, and failed to use reasonable care in operating and

using their pistols, thus killing Pedro. However, despite appellants’ efforts to phrase

their claims in terms of negligence, their focus is on the shooting of Pedro.

Appellants do not allege negligent acts of the City, the governmental unit, except

though the doctrine of respondeat superior. Furthermore, appellants admit that “the

actual shooting of [Pedro Oregon] Navarro was not an act of negligence.” They

nevertheless contend it was a “foreseeable consequence of a single act of negligence

in Officer Barrera’s failure to handle his firearm properly.” Thus, they claim that “the

mere fact that the shooting of [Pedro Oregon] Navarro may have been intentional has

no bearing on [their] negligence claim.”

Despite Officer Barrera’s alleged negligence in shooting Officer Tillery, the

pleadings demonstrate that Barrera and the other officers intended to shoot Pedro

because they believed, albeit incorrectly, that he was armed and dangerous.

Appellants allege that, after the initial discharge, Barrera fired 16 rounds into Pedro’s

bedroom. Barrera also reloaded his gun and resumed firing at Pedro, sometimes at

point blank range, as he lay on the floor. Appellants do not allege an accidental

shooting, such as the inadvertent discharge of the pistol; nor do the pleadings indicate

that the shooting of Pedro was anything but intentional. Thus, as in most cases, the

intent to injure can be inferred from the actors’ conduct.

Although the officers’ may

not have intended their initial actions, such as Officer Barrera’s shooting Officer

Tillery, they did intend the ultimate injury—shooting Pedro. See Reed Tool Co. v.

Copelin, 689 S.W.2d 404, 406 (Tex. 1985) (difference between negligence cause of

action and intentional tort is not whether defendant intended the acts, but whether the

defendant intended the resulting injury). Because the focus of appellants’ claims is

on the officers’ intentional tortious conduct (wrongful use of force, wrongful use of

excessive force, assault), the City’s immunity is not waived. See Nuno, 94 S.W.3d

at 789 ; Medrano, 989 S.W.2d at 141 .

After looking to the jurisdictional evidence and allegations, taking them as true,

and construing them in favor of the appellants, we conclude that appellants’ petitions

do not present a claim for which immunity is waived by the TTCA. Therefore, the

trial court did not err in granting the City’s plea to the jurisdiction and dismissing

appellants’ claims for lack of jurisdiction. We overrule appellants’ sole issue.

Because we conclude that the City has immunity under the intentional tort

provision of the TTCA, section 101.057, we do not discuss appellants’ additional

claims.

Conclusion

We affirm the trial court’s order granting the City’s plea to the jurisdiction

and dismissing appellants’ claims.

Evelyn V. Keyes

Justice

Panel consists of Chief Justice Radack and Justices Keyes, and Bland.