Over a dissenting opinion, the Austin Court of Appeals has reversed a trial court denial of the City of Austin’s plea to the jurisdiction in a lawsuit stemming from the alleged negligence of a police officer.
The City of Austin v. Amy-Marie Howard, Individually and as Next Friend of D.A., Minor, and as a Representative of the Estate of Johnathon Aguilar, and on Behalf of All Those Entitled to Recover Under the Texas Wrongful Death Act For The Death of Johnathon Aguilar and Nanette Mojica, Individually (No. 03-22-00439-CV; filed February 10, 2023) arose from the murder of Aguilar by Dylan Woodburn, who entered the restaurant where Aguilar worked and stabbed him to death. Woodburn had a few minutes previously entered a neighboring coffee shop, where he threatened customers and assaulted one of them. While the APD officer who responded to the incident was in the process of handcuffing Woodburn on the ground, his duty belt came loose. When he set down the cuffs to resecure the belt, Woodburn got up and left the coffee shop. He then entered the restaurant through an unlocked back door, grabbed a knife from the kitchen counter (the knives had just been dropped off by a sharpener), and attacked Aguilar. Plaintiff filed suit against the manufacturer of the duty belt, the officer, and the city. The city filed a plea to the jurisdiction, which the trial court denied. The city filed an interlocutory appeal.
The court of appeals reversed and rendered in favor of the city. The question in the case was whether plaintiffs’ pleadings contained sufficient facts “to affirmatively demonstrate the trial court’s jurisdiction” such that “a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend” (citations omitted). Plaintiffs alleged that the city’s sovereign immunity was waived under § 101.021, CPRC (Texas Tort Claims Act), which waives immunity if the plaintiff shows that the injury or death was “proximately caused by the condition or use of tangible property.” Plaintiffs claimed that the failure of the officer to secure his belt with “keepers”—clips that fasten the duty belt to the trousers belt to prevent slippage—proximately caused Aguilar’s death. Rejecting this claim, the court held “there is no fact question on either foreseeability or cause in fact,” the two elements of proximate causation. “Instead,” the court continued, “Aguilar’s death was preceded by an alleged extraordinary sequence of events too causally attenuated from the alleged use or condition of the duty belt to demonstrate anything more than the duty belt’s mere furnishment of a condition that made Aguilar’s death possible.”
In other words, the court determined that the “real substance” of plaintiffs’ claim was not the failure of the duty belt, but the officer’s “decision to resecure the belt instead of continuing to handcuff Woodburn or otherwise attempt to apprehend him.” That Woodburn would leave the property, enter the restaurant, find a sharpened knife that had just a few moments before been delivered to the restaurant, and stab Aguilar, the court concluded that the “reasonably anticipated danger or harm from an officer’s duty belt falling off is the officer’s resulting inability to quickly grab his gun, taser, or other equipment if needed or, in certain circumstances, a suspect’s opportunity to grab such items.” It could not be reasonably anticipated, however, that the “officer’s negligent decision to resecure his duty belt instead of attempting to apprehend a dangerous suspect.” The court thus held that the use or condition of the personal property—the duty belt—was not the actual cause of the injury.
Justice Triana dissented. She argued that plaintiffs’ pleadings sufficiently raised a fact question as to “the foreseeability of this type of harm resulting from the duty belt’s failure while [the officer] was restraining a violent suspect to allow the case to proceed so that a factfinder may find the fact-specific determination of whether proximate cause has been established.” Whether plaintiffs will take the case up to SCOTX remains to be seen, but in view of the precedent cited by the majority regarding attenuated causation, it appears somewhat doubtful to us that a petition for review would succeed under these facts.
