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Rainey v. City of Alvin9/7/1995
The issue in this appeal is whether a city's governmental immunity has been waived under the Texas Tort Claims Act, TEX. CIV. PRAC. & REM. CODE ANN. Section(s) 101.001-.109 (Vernon 1986 & Supp. 1995) [hereinafter the Act]. Appellant Nancy Wofford, the mother of Gary Wayne Rainey, sued appellee City of Alvin for negligence arising out of Rainey's death. The district court granted the City's motion for summary judgement based on governmental immunity from suit and dismissed the case with prejudice. Wofford appeals in a single point of error, claiming the district court erred in granting summary judgment. We affirm. On the evening of August 14, 1988, City of Alvin Police Officer Emilio Jose Esquivel responded to a request for assistance from officers from the City of Santa Fe and Brazoria County who were pursuing a stolen pickup truck. Esquivel joined in the pursuit, which was later joined by officers from Galveston County. Eventually the pickup truck spun onto a side road and stalled. The driver and one passenger attempted to flee, but the remaining passenger, Gary Wayne Rainey, stayed in the truck.
Esquivel ordered Rainey to get out of the truck, which Railey failed to do. Esquivel then approached the truck, opened the door, grabbed Rainey by the collar, and dragged him out of the truck. Esquivel searched Rainey for weapons with his left hand, while holding his weapon in his right hand behind Rainey's head. Rainey turned around and reached for Esquivel's weapon, and during the struggle Esquivel's weapon discharged, killing Rainey.
Wofford sued the Cities of Alvin and Santa Fe and Brazoria and Galveston Counties for negligence and violations of 42 U.S.C. Section(s) 1983, 1988 (1988). The defendants removed the suit to federal court where Wofford later dismissed all defendants except the City of Alvin. The federal court dismissed all of Wofford's federal claims and remanded the case to state district court for a determination of Wofford's remaining state negligence claim against the City.
In state district court, the City moved for summary judgement on four grounds, claiming the Act does not waive the City's immunity from suit and liability because: (1) Wofford's claim arises from Officer Esquivel's actions while responding to an emergency call or reacting to an emergency situation (Act Section(s) 101.055); (2) Wofford's claim arises from the City's method of providing police protection (Act Section(s) 101.055); (3) Wofford's claim is based on a discretionary function of the City (Act Section(s) 101.056); and (4) Officer Esquivel is entitled to official immunity, thus the City is not liable and the City's immunity from suit is not waived (Act Section(s) 101.021). We can uphold the summary judgement only if the City has shown that no genuine issue of material fact exists and that the City was entitled to summary judgement as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). The district court did not specify the grounds on which it granted summary judgment, so Wofford has attacked each of these grounds as a part of her point of error.
In subpoint four, Wofford claims that the City is not entitled to base its immunity on the alleged existence of Officer Esquivel's official immunity. The City argued in its motion for summary judgment that Esquivel was entitled to official immunity as a matter of law and that the City was therefore not liable because its employee was immune. The Texas Supreme Court has recently construed section 101.021(2) to predicate a governmental unit's respondeat superior liability upon the liability of its employee. DeWitt v. Harris County, 38 Tex. Sup. Ct. J. 916, 918 (June 22, 1995). In DeWitt, t
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