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Clement v. City Of Plano8/24/2000
Warren H. Clement and Pauline Clement, individually and as heirs of the estate of Michael Clement, sued Michael Nunns (a Plano police officer), Bruce Glasscock (the chief of the Plano Police Department), the City of Plano (Plano), and others after Nunns, answering a 9-1-1 call at a Collin County Mental Health Mental Retardation Center respite facility, shot and killed their fifteen-year-old mentally retarded and autistic son, Michael. Appellants alleged the defendants were liable for negligence and wrongful death under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. ยง 101.021(2) (Vernon 1997). In two issues, appellants contend the trial court erred in overruling their special exceptions to Plano's motion for summary judgment and in granting Plano's motion. In two additional issues, appellants challenge Glasscock's affidavit, submitted as summary judgment evidence. We resolve three of appellants' issues in their favor and reverse and remand this cause to the trial court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In May 1997, appellants left Michael in the care of Carolyn Gartman, a respite care giver employed by Collin County Mental Health Mental Retardation Center (CCMHMRC). Appellants arranged for Gartman to pick Michael up from school and take him home. Instead, after picking Michael up from school on May 18, 1997, Gartman took him to a CCMHMRC respite facility that was a home in a residential neighborhood. Appellants alleged that, after Michael became agitated by the unfamiliar environment and the disruption in his schedule, Gartman "lost control of the situation" and called 9-1-1.
Officer Michael Nunns responded to the 9-1-1 call but did not recognize the house as a mental health facility. Gartman answered the door when Nunns arrived, and Michael was standing next to her. Nunns thought Michael was eighteen years old and weighed 185 pounds, twenty pounds heavier than Nunns. Before explaining the situation to Nunns, Gartman left to answer a telephone call, leaving Michael with Nunns. Nunns identified himself to Michael as a police officer. Michael became "very, very, very angry" and started walking toward the kitchen. Not knowing if Michael was the aggressor or victim, Nunns told him to stop. However, Michael entered the kitchen, and Nunns heard him opening and closing drawers, heard a "jingle sound of silverware," and "felt like he was going after a knife." Michael came out of the kitchen door very quickly, lunging with a knife within one foot of Nunns's throat. Nunns backed away, told him to stop, and fired twice with a pistol when Michael lunged again. Both shots hit Michael, and he died. About nineteen seconds elapsed between Nunns's arrival and the shooting.
Appellants filed suit. Nunns, Glasscock, and Plano filed a motion for summary judgment based on official and sovereign immunity. Appellants' response included special exceptions and objections to the summary judgment evidence. Plano did not amend its motion. Before the hearing on the motion, the trial court dismissed Nunns and Glasscock pursuant to appellants' assertion in their response to Plano's motion that Nunns and Glasscock were nonsuited. During the hearing, the trial court overruled the special exceptions and objections to the evidence. Following the hearing, the trial court granted summary judgment in favor of Plano.
SPECIAL EXCEPTIONS TO THE MOTION FOR SUMMARY JUDGMENT
In their first issue, appellants contend the trial court erred in overruling their special exceptions to Plano's motion for summary judgment and granting the motion. Appellants complain that the summary judgment motion did not specify the grounds upon which
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