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Vasquez v. City of San Antonio3/28/2001
imprisonment, or any other intentional tort." Id. at § 101.057.
Section 101.021(2) requires that personal injury be proximately caused by the use of tangible property. See Dallas Co. Mental Health v. Bossley, 968 S.W.2d 339, 342 (Tex. 1998). This requires more than mere involvement of the property. See id. at 342-43. In Bossley, the unlocking of a door at a residential unit, and the subsequent elopement of a resident resulting in a suicide, was not found to be the cause of the harm. Id. at 343. The real complaint, according to the Bossley court was that the death was caused not by the use of the property, but rather by the failure of the staff to restrain the resident once they learned he was suicidal. Id. In the instant case, Vasquez's complaint stems from an alleged kick to the head, not from the use of the property - the officer's boot. Additionally, this complaint is truly one of battery, an intentional tort not waived under the sovereign immunity of Section 101.021.
Employees Not Liable After Judgment
Under the Texas Tort Claims Act, a judgment or a settlement of a claim against a governmental unit bars any action against the governmental employee arising out of the same act or omission giving rise to the claim against the government. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (Vernon 1997). The Legislature has supplied this exception to the waiver of governmental immunity for particular actions where a suit against the governmental unit has continued to judgment. See Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex. 1997). This is a grant of immunity, which in Newman, gave the school district employee immunity following a summary judgment for the school district. See id.
Vasquez claims that there has been no settlement in this case and the criminal conviction is not a bar. However, the summary judgment granted by the trial court in favor of the City of San Antonio, which we are affirming, is the judgment that provides immunity from any action against the government employee, Carlos Garza, arising out of the same subject matter which gave rise to this claim. See Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex. 1995) (asserting that section 101.106 provides immunity for the governmental employee contemporaneously with a judgment in an action against a governmental unit involving the same subject matter).
Appellant's Summary Judgment Motion
A summary judgment motion must state the specific grounds on which the motion is based and shall be filed and served no less than twenty- one days before the time set for the hearing, except on leave of court. Tex. R. Civ. Proc. 166(a). The document Vasquez claims is a motion for summary judgment is entitled "Counter-Claim and Response to City of San Antonio et al's Motion for Summary Judgment" and was filed September 2, 1999. The hearing on the summary judgment was set for and took place on September 9, 1999. Nothing exists in the record to show leave of court was requested or granted to file a motion for summary judgment in less than the twenty-one days required. Additionally, no specific grounds exist in the counter-claim and response on which to grant or deny a summary judgment, as is required under Rule 166(a). Therefore, because the requirements for a summary judgment were not met, there was no motion for summary judgment by Vasquez for the trial court to deny or for this court to review.
The judgment of the trial court is affirmed.
DO NOT PUBLISH
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