Armando Garza and The Texas Department of Public Safety, By and Through the Attorney General of Texas v. Luis Manuel Cruz, Et Al.--Appeal from 229th Judicial District Court of Starr County

No. 04-99-00947-CV

Armando GARZA, Individually and as Agent for the Texas Department of

Public Safety, and the Texas Department of Public Safety,

Appellants

v.

Luis Manuel CRUZ and Delia Cruz, Individually and on Behalf of Luis Mateo Cruz,

Luis Mateo Cruz, Jr., and Caleb Andres Cruz, Minors,

Appellees

From the 229th Judicial District Court, Starr County, Texas

Trial Court No. DC-95-96

Honorable Alex W. Gabert, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: August 16, 2000

REVERSED AND RENDERED IN PART; AFFIRMED IN PART

Armando Garza and The Texas Department of Public Safety appeal the trial court's denial of their motion for summary judgment. We reverse the trial court's order to the extent it denies summary judgment on DPS's claim that it is immune from the Cruzes' intentional tort claims. In all other respects, we affirm.

Factual and Procedural Background

On the evening of September 20, 1993, Garza, a DPS patrolman, witnessed Luis Manuel Cruz's truck weaving out of its lane into oncoming traffic and back onto the shoulder. Garza activated his emergency lights and pursued Cruz. Cruz drove onto the shoulder, indicating with his hand that he would soon stop, but he failed to do so. In an attempt to get Cruz to stop, Garza activated his high beams and siren. At this point, Garza became suspicious that Cruz might be intoxicated. Eventually, Cruz pulled to a stop along the shoulder of the road. Garza then told Cruz to get out and put his hands on his truck. Garza then handcuffed Cruz' hands behind his back, patted him down, and placed him in his patrol car, informing Cruz that he was under arrest for "fleeing from an officer." Garza strapped Cruz, whose hands were still handcuffed behind his back, into the passenger seat of his patrol car using a chest belt, a lap belt, and a leg belt. After searching around the truck, Garza came back and sat in the driver's side of his patrol car.

While Garza filled out forms, Cruz' truck began to roll backward toward the patrol car. Garza placed the patrol car in reverse and activated his emergency lights. As the truck rolled backward along the shoulder, it began to swerve back and forth. Just as the truck began to swerve toward the road, Garza noticed a vehicle approaching from behind. Garza stopped his car and allowed Cruz' truck to hit his car, slowing the truck while the approaching vehicle passed. Cruz' truck then crossed the road to a ditch on the other side of the road, where it was eventually stopped. The DPS supervisor who came to the scene and investigated the accident concluded that both the patrol car and Cruz' truck had sustained damage in the collision, and the major factors contributing to the accident were Cruz' failure to properly set his truck in park and set the emergency parking brake. The investigating supervisor also concluded that Garza did all he could to avoid an accident and acted properly in using his patrol car to slow Cruz' truck.

On August 18, 1995, Cruz and his wife, individually and on behalf of their children, filed suit against both Garza and DPS. The Cruzes alleged that the appellants were negligent in failing to use reasonable care in operating and using the patrol car and in operating and using tangible personal property, including handcuffs, straps, belts, and the patrol car. The appellants moved for summary judgment, arguing they are immune from the Cruzes' suit. The trial court denied the appellants' motion, and the appellants filed this interlocutory appeal.

Standard of Review

"We review a summary judgment de novo." Valores Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex. App.--San Antonio 1997, writ denied). "[W]e will uphold a summary judgment only if the summary judgment record establishes that there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law." Id.; Tex. R. Civ. P. 166a(c). In determining whether a genuine issue of material fact exists, "we view as true all evidence favorable to the non-movant and indulge every reasonable inference, and resolve all doubts, in its favor." Valores, 945 S.W.2d at 162.

Official Immunity

The appellants contend Garza established the affirmative defense of official immunity as a matter of law. We disagree.

"Government employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority." City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994) (emphasis added). In emergency response cases, such as this, an official acts in good faith if a reasonably prudent official under the same or similar circumstances could have believed that the need to which he responded outweighed the risk of harm created by his action. Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997). Need is determined by factors such as the seriousness of the situation to which the official responded, the need to immediately respond, and the availability of alternative actions to achieve the same result. Id. Risk is determined by factors such as the nature, severity, likelihood, and obviousness of the risk. Id. In the summary judgment context, these factors must be assessed by the expert who concludes that a reasonably prudent official under the same or similar circumstances could have believed that the need to which he responded outweighed the risk of harm created by his action. Id.; Hale v. Pena, 991 S.W.2d 942, 945-46 (Tex. App.--Fort Worth 1999, no pet.).

To support their argument that Garza acted in good faith, the appellants rely upon two expert affidavits, one by Garza and one by the investigating officer. In these affidavits, Garza and the investigator describe the events surrounding the accident and conclude Cruz violated article 6701d, section 97 of the Texas Revised Civil Statutes (current version at Tex. Transp. Code Ann. 545.404 (Vernon 1999)) by leaving his truck running while unattended. Both also conclude that "while it may be uncomfortable for a suspect," "a reasonably prudent peace officer in the same or similar situation [as Garza], would deem it appropriate to apply handcuffs to [him] behind his back" and place Cruz in the patrol car with his hands remaining behind his back because these measures can prevent a suspect from obtaining a weapon. The affidavits further state that Garza was reacting to an emergency situation when he allowed the swerving, unmanned truck to hit his patrol car. According to Garza and the investigator, if Garza had allowed the truck to proceed across the highway unabated, the truck could have collided with oncoming traffic, which may have resulted in a collision with the patrol car, or the oncoming car could have swerved to miss the truck and struck the patrol car. Thus, the affidavits conclude, while "striking the bumper of Plaintiff's truck with Trooper Garza's vehicle had the potential of harming either Trooper Garza or Plaintiff, it was the safest alternative."

These affidavits establish the need for Garza's action, but they do not address the nature, severity, likelihood, and obviousness of the risk created by his actions. Therefore, we hold the appellants' summary judgment evidence was insufficient to establish as a matter of law that Garza acted in good faith, and we affirm the trial court's order denying summary judgment on Garza's official immunity claim. See Wadewitz, 951 S.W.2d at 466-67; Hale, 991 S.W.2d at 946-47.

Sovereign Immunity

The appellants also argue the trial court erred in failing to grant summary judgment on DPS's defense of sovereign immunity.

Derivative Immunity

DPS first argues it is entitled to summary judgment on the Cruzes' claims because the summary judgment evidence establishes Garza is officially immune from the same claims. See DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex. 1995). Because we have already held Garza was not entitled to summary judgment on his defense of official immunity, we likewise hold DPS is not entitled to summary judgment on its immunity claim to the extent it is based on Garza's immunity.

Notice

DPS next argues it is entitled to summary judgment on the Cruzes' claims because it did not receive notice of their claims as required under section 101.101 of the Texas Civil Practice and Remedies Code. Under section 101.101, "[a] governmental unit is entitled to receive notice of a claim against it under [the Tort Claims Act] not later than six months after the day that the incident giving rise to the claim occurred." Tex. Civ. Prac. & Rem. Code Ann. 101.101(a) (Vernon 1997). However, this notice requirement does "not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged." While the parties do not dispute that the Cruzes failed to send formal notice of their claims to DPS within the requisite sixth month period, the Cruzes claimed in their petition that DPS received actual notice of their claims.

In order for a governmental unit to have actual notice of a claimant's injuries, it must have knowledge of (1) the injury, (2) its alleged fault in causing the injury, and (3) "the identity of the parties involved." Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995). DPS does not argue on appeal that the summary judgment evidence conclusively shows it had no knowledge of either the injury or the parties involved. Rather, DPS argues that the summary judgment evidence conclusively demonstrates that it did not know of its alleged fault in contributing to the Cruzes' injuries. Specifically, DPS points to its own investigation of the accident, in which a DPS officer concluded that the major causes of the accident were Cruz' failure to set the car in park and to set the emergency brake. However, while the evidence shows DPS concluded Cruz was at fault, it does not in any way show that DPS did not have knowledge of its alleged fault in causing the Cruzes' injuries. Compare Huffine v. Tomball Hosp. Auth., 979 S.W.2d 795, 800 (Tex. App.--Houston [14th Dist.] 1998, no pet.); Benavides v. Dallas-Fort Worth Int'l Airport Bd., 946 S.W.2d 576, 579 (Tex. App.--Fort Worth 1997, no writ). Because the summary judgment evidence does not conclusively show that DPS did not have knowledge of its alleged fault in causing the Cruzes' injuries, we cannot hold the trial court erred in denying summary judgment on the ground that DPS had no notice of the Cruzes' claims.

Claims for Negligent Hiring, Training, or Supervision

Next, DPS contends it was entitled to summary judgment on the Cruzes' claims to the extent they claimed DPS was negligent in hiring, training, or supervising Garza. See Naranjo v. Southwest Indep. Sch. Dist., 777 S.W.2d 190, 192 (Tex. App.--San Antonio 1989, writ denied). However, even a liberal construction of the Cruzes' petition fails to reveal a cause of action against DPS for negligent hiring, training, or supervision. DPS is not entitled to summary judgment on a claim not asserted. Tex. R. Civ. P. 166a(b), (c).

Intentional Torts

DPS also argues it was entitled to summary judgment to the extent Cruz claimed he was injured as a result of Garza's intentional acts.

The Texas Tort Claims Act does not waive a governmental unit's sovereign immunity from claims "arising out of assault, battery, false imprisonment, or any other intentional tort." Tex. Civ. Prac. & Rem. Code Ann. 101.057. DPS argues that the Cruzes' cause of action for negligent use of handcuffs, straps, and the automobile is actually an intentional tort because the Cruzes allege Garza intended these acts. However, the difference between a negligence cause of action and an intentional tort is not whether the defendant intended his acts, but whether the defendant intended the resulting injury. See Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985); Bridges v. Robinson, 20 S.W.3d 104, 114 (Tex. App.--Houston [14th Dist.] 2000, no pet. h.). Here, the Cruzes allege in their petition that Garza and DPS were negligent in failing to use reasonable care in operating and using the patrol car as well as tangible personal property, including handcuffs, straps, and belts. "In the alternative and without waiving the foregoing," the Cruzes claim Garza intended to injure Luis Manuel Cruz through these actions. Thus, the record indicates the Cruzes pleaded both negligence and intentional tort causes of action. Furthermore, the summary judgment record does not conclusively indicate that Garza did indeed intend to cause Cruz injury. Therefore, while DPS failed to show it was entitled to summary judgment as a matter of law on the Cruzes' negligence claims, see Bridges, 20 S.W.3d at 114 , DPS is entitled to summary judgment as a matter of law on the Cruzes' claims based on intentional injury. See Tex. Civ. Prac. & Rem. Code Ann. 101.057.

Negligence

Finally, DPS argues it is entitled to summary judgment on the Cruzes' negligence cause of action because the record conclusively shows Garza was not negligent. However, in considering an interlocutory appeal from the denial of a plea to the jurisdiction, we do not consider the merits of the case below. See Texas Dep't of Transp. v. City of Sunset Valley, 8 S.W.3d 727, 730 (Tex. App.--Austin 1999, no pet.). Therefore, we do not reach the issue of whether the trial court erred in denying the appellants' motion for summary judgment on the ground that Garza was not negligent.

Conclusion

We reverse the trial court's order to the extent it fails to grant DPS summary judgment on Cruz' intentional tort claim and render judgment that Cruz take nothing from its intentional tort claim against DPS. In all other respects, we affirm. (1)

Sarah B. Duncan, Justice

Do not publish

1. We need not address the appellants' remaining grounds for error concerning the trial court's denial of summary judgment on the family's consortium claims because those grounds of error were dependent upon the appellants' succeeding on their claims that they are immune from suit by Cruz himself.