Aminta Flores, Cross-Appellants v. Edinburg Consolidated Independent School District, Cross-Appellees

GARZA, Circuit Judge,

specially concurring:

Although Judge Higginbotham presents an excellent argument for the proposition that the Texas law of res judicata precludes the section 1983 action before us, I disagree with the majority’s interpretation of Texas law and believe that the Texas courts would not find appellee’s claim precluded. Although I concur in the result reached by the majority, I would reverse this case on the merits because the appellee failed to establish that his section 1983 claim occurred as a result of an official policy, custom, or usage of the school district. 1 Consequently, I respectfully file this special concurrence.

*780 In determining the preclusive effect of prior state court judgments, federal courts must apply the law of the state from which the judgment emerged. Allen v. McCurry, 449 U.S. 90 , 101 S.Ct. 411 , 66 L.Ed.2d 308 (1980); Southern Jam, Inc. v. Robinson, 675 F.2d 94, 97 (5th Cir.1982); 28 U.S.C. § 1738 (1976).

Appellee argues that under Texas law a different cause of action arises when a suit is based on a different legal theory, as long as the facts of the cause of action were not actually litigated and decided in a previous suit. Appellee contends that a different cause accrues even when the case arises out of the same facts. The majority’s argument that “this view leaves res judicata a dead letter in the sense that it would be no broader a rule than collateral estoppel with respect to the issues raised in the pleadings” does not account for the fact that the test for res judicata under Texas law is a case-by-case approach that considers the policy considerations underpinning the doctrine. Gilbert v. Fireside Enterprises, Inc., 611 S.W.2d 869 (Tex.Civ. App. — Dallas 1980, no writ) and Cohen v. Cohen, . 663 S.W.2d 617 (Tex. Civ. App.— Houston 1984, no writ) correctly state the Texas law on this issue. Examine Flores v. Edinburg Consolidated Independent School District, 554 F.Supp. 974, 980-82 (S.D.Tex.1983). These policy considerations include “the promotion of judicial economy, prevention of vexatious litigation, prevention of double recovery and promotion of the stability of decisions.” Gilbert at 877 . Texas courts will not apply res judicata to a subsequent action unless it substantially contravenes one or more of these policy considerations. Westinghouse Credit Corp. v. Kownslar, 496 S.W.2d 531, 532 (Tex.1973); Gilbert at 877 .

The instant case offends none of these policy considerations. Judicial economy is not wasted because the previous suit was terminated promptly by a summary judgment. There will be no double recovery because the plaintiff took nothing in the first suit. It is also clear that this suit is not vexatious. In any event, as Gilbert stated, the complete bar of a claim is too harsh a penalty for failing to join two causes of action in one lawsuit. 2 Such a result is compelling where, as here, the cause of action is entirely different from the one brought in state court. Finally, the current action does not affect the stability of a prior state court judgment. That ruling was reached entirely on legal grounds, no factual matters were decided. Since this action violates no important res judicata policy considerations a Texas court would not apply res judicata to bar the action. I would affirm the district court’s analysis and application of Texas law on this point. 554 F.Supp. 974, 980-82 .

I would reverse the district court, however, on the issue of liability under section 1983 because the plaintiff was not injured as a result of an official policy, custom, or practice of the school district.

In Monell v. New York City Dept, of Social Services, 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611, 635 (1978), the Supreme Court held that municipalities may be responsible for the constitutional torts of their employees if such injuries resulted from a municipal custom, policy, or usage, even though a custom had not been formally endorsed by a decision-making body. 436 U.S. at 690-91 , 98 S.Ct. at 2036 , 56 L.Ed.2d at 635-36 .

*781 Recently, after much deliberation, this court sitting en banc defined official policy as:

1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality’s lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or

2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.

Bennett v. City of Slidell, 735 F.2d 861, at 862 (5th Cir.1984) (rehearing petition denied); Webster v. City of Houston, 735 F.2d 838, at 840 (5th Cir.1984).

Appellee argues that reasonable jurors could conclude, on the evidence admitted at trial, that the custom or policies of the school district created a pervasive risk of harm to school children using dangerous machinery, proximately causing a deprivation of Flores’s constitutional rights. The record reveals some evidence that establishes what the appellee terms a “safety vaccum” at the school. Appellee presented evidence about various safety deficiencies in the design and maintenance of the wood-shop. He pointed out that the guard on the power saw that caused the injury was missing 3 and noted that school officials at every level failed to promulgate woodshop safety rules pursuant to state law requiring schools to adopt written rules governing the safety and well-being of students. T.E.A. regulations,. Section 133.1 (226.52.-01.101). Finally, appellee notes that the jury heard evidence that the shop instructor left students unsupervised and/or allowed eighth graders to monitor seventh graders and permitted students to use the saw in question even after the guard was removed.

The plaintiff’s evidence of incidents of lax safety and negligence on the part of the instructor fails to indicate, as a matter of law, that these safety deficiencies were the result of official policy, the delegation of policy-making authority, or so common and well settled as to constitute a custom.

As to official policy, the evidence in the case reveals that school district officials were concerned for the safety of their students. The fact that school officials did not promulgate rules specifically addressing safety in woodshop class does not mean that the school had an official policy of creating or condoning unsafe classroom conditions. It is unrealistic to expect school officials to create written safety policies governing every conceivable set of circumstances that might arise in disparate classrooms. Moreover, the school district did make general statements that reflected a concern about student safety, and emphasized this concern during in-service training sessions.

The record evidence does not support a conclusion that the school district officials delegated policy-making authority to Cantu. In Webster , this court stated that:

[a] ‘policymaker’ must be one who takes the place of the governing body in a designated area of city administration: City policymakers not only govern conduct; they decide the goals for a particular city function and devise the means of achieving those goals. Policymakers act in the place of the governing body in the area of their responsibility; they are not supervised except as to the totality of their performance.

The delegation of policymaking authority requires more than a showing of mere discretion or decisionmaking authority on the part of the delegee.... The governing body must expressly or impliedly acknowledge that the agent or board acts *782 in lieu of the governing body to set goals and to structure and design the area of the delegated responsibility, subject only to the power of the governing body to control finances and to discharge or curtail the authority of the agent or board.

Webster, at 841 (quoting Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir.1984) (en banc)). There was some evidence that school district officials partially delegated some safety responsibility to principals and individual teachers. E.g., Record, vol. VI, at 280, 297-98. On the other hand, as appellee admitted in his brief, the evidence also indicated that teachers lacked the authority to make decisions about equipment. Appellee’s brief, at 23-25; Record, vol. VI, at 282; id. vol. IV, at 338-39. In addition, it is apparent that school district officials, not Cantu, were responsible for the alleged negligent design of the woodshop classroom. E.g., Record vol. IV, at 341. The record evidence is insufficient to establish that the school district expressly or impliedly acknowledged that Cantu was acting in lieu of district officials or that Cantu took the place of the school district in the area of woodshop safety regulation.

The evidence of a custom of unsafe conditions is also insufficient to justify the jury verdict. We stated in Webster that:

If actions of city employees are to be used to prove a custom for which the municipality is liable, those actions must have occurred for so long or so frequently that the course of conduct warrants the attribution to the governing body of knowledge that the objectionable conduct is the expected, accepted practice of city employees. The trier of fact must be able to charge the governing body with actual or constructive knowledge of such actions of subordinates. There was no proof of actual knowledge here. ‘Constructive knowledge may be attributed to the governing body on the ground that it would have known of the violations if it had properly exercised its responsibilities, as for example, where the violations were so persistent and widespread that they were the subject of prolonged public discussion or of a high degree of publicity.’

At 842 (quoting Bennett, 728 F.2d at 768 .).

There is little, if any, evidence in the record that other teachers, or other shop teachers created or maintained unsafe conditions in their classrooms. Moreover, there is little or no evidence that there was any persistent, widespread practice of this nature. Indeed, the student injury rule for the school district was low. Compare Plaintiff’s exhibits 35 and 37.

The jury correctly found that Cantu was negligent in removing the guard from the saw that caused the injury. Proof of this isolated negligent act, however, is insufficient to justify the verdict that a policy, custom, or usage of unsafe safety procedures existed. Appellee failed to produce evidence sufficient to show that the negligent actions of Cantu were made known to the district officials, were so common and settled that they should be attributed to school officials, or that they provoked “public discussion or ... a high degree of publicity” such as to constitute a custom fairly representing a school district policy.

The record reveals that the instructor in question had not had another serious injury in his class in ten years of teaching. Record, vol. V, at 99-100, 106. The textbook students used repeatedly stressed safety information, Plaintiff’s exhibit 2, and the instructor reviewed these portions frequently. E.g., Record, vol. IV, at 259; id. vol. VI, at 361; id. vol. Ill, at 37. In addition, the instructor demonstrated safety techniques and had students write down safety rules. Id. vol. VI, at 361; id. vol. IV, at 256.

As a matter of law, the plaintiff failed to establish that it was the school district’s policy to maintain unsafe conditions in the woodshop class, that the district had delegated safety regulation to Cantu, or that Cantu’s practices were so persistent and widespread as to constitute a custom. Therefore, I concur in the result reached by the majority.

. Although I discuss only this issue, I have substantial doubts that the ruling would withstand scrutiny on other issues. The alleged wrong in this case is not "sufficiently egregious as to be ‘constitutionally’ tortious.” See Dollar v. Haral-son County, 704 F.2d 1540, 1543-44 (11th Cir.), cert, denied, - U.S. -, 104 S.Ct. 399 , 78 L.Ed.2d 341 (1983) (county’s failure to construct bridge over creek at "most needed place in the county” did not rise to the level of a constitutional violation); Hull v. City of Duncanville, 678 F.2d 582, 584 (5th Cir.1982) (city’s negligent failure to maintain properly railway crossing not actionable under section 1983) (quoting Williams v. Kelley, 624 F.2d 695, 697 (5th Cir. 1980), cert, denied, 451 U.S. 1019 , 101 S.Ct. 3009 , 69 L.Ed.2d 391 (1981)); Hays v. Jefferson County, 668 F.2d 869, 872 (6th Cir.), cert, denied, 459 U.S. 833 , 103 S.Ct. 75 , 74 L.Ed.2d 73 (1982) ("simple negligence is insufficient to support liability [under section 1983] of high police officials and municipalities for inadequate training, supervision, and control of individual offi-cers____"); York v. City of Cedartown, 648 F.2d 231 (5th Cir.1981) (city's negligent design and construction of street and drainage system not cognizable under section 1983).

It should also be remembered that in Parratt v. Taylor the Supreme Court disapproved of unlimited expansion of section 1983:

To accept respondent’s argument that the conduct of the state officials in this case constituted a violation of the Fourteenth Amendment would almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under "color of law” into a violation of the Fourteenth Amendment cognizable under § 1983. It is hard to perceive any logical stopping place to such a line of reasoning. Presumably, under this rationale any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under § 1983. Such reasoning "would make the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the states.” We do not think that the drafters of the Fourteenth Amendment intended the Amendment to play such a role in our society.

Parratt, 451 U.S. 527, 544 , 101 S.Ct. 1908, 1917 , 68 L.Ed.2d 420, 434 (1981).

In addition, the jury awarded $250,000 in compensatory damages, $225,000 for the alleged violation of constitutional rights, and $75,000 for Flores’s suicide, which raises the unsettled issue of double recovery of damages.

. The majority contends that the result of its decision is not too harsh because "Flores has offered no excuse for the failure to join the § 1983 action with the state tort claim.” At the time his suit was brought in state district court (Jan. 8, 1979), however, it was unclear whether or not a plaintiff could maintain a section 1983 action for negligence. As Justice Rehnquist noted in a 1979 majority opinion,

whether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush. It may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action.

Baker v. McCollan, 443 U.S. 137, 139-40 , 99 S.Ct. 2689, 2692 , 61 L.Ed.2d 433, 439 (1979). It was not until Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981), that this issue was settled.

. The teacher testified that he occasionally removed the blade to facilitate students’ use of the "dado” blade.