Professional Documents
Culture Documents
, 2001)
A jury found Melinda Petta guilty of We must decide whether the jury's
fleeing or attempting to elude a police officer. determination in the criminal case that Petta
1 In that criminal case, the jury necessarily
did not reasonably believe that she was in
concluded that the State proved beyond a danger of imminent harm when she fled
reasonable doubt that in fleeing, Petta did not collaterally estops Petta from maintaining an
"have a reasonable belief that such act was action for assault against Rivera. We must
immediately necessary to avoid imminent also determine whether sovereign immunity
harm [caused by the police officer either to bars the suit against the Department. Finally,
her or her children]. . . ."2 Despite her we must decide whether Rivera, in his official
conviction, Petta, capacity, is subject to Petta's section 1983
claims.
Page 577
Because the facts necessary to
in this case, sued the police officer, Trooper
establish Petta's claims in this case against
Adrian Rivera, individually for assault,
Rivera, individually, are the same facts
aggravated assault, battery, reckless conduct,
necessarily found against Petta by the jury in
and "terroristic threat." She sought to recover
the criminal case, collateral estoppel bars her
for her nonphysical, emotional injuries. Petta
claims against Rivera. Thus, we reverse the
also sued Trooper Rivera in his official
court of appeals' judgment and render
capacity and the Texas Department of Public
judgment that Petta take nothing from
Safety under the Texas Tort Claims Act,
Rivera. Concerning Petta's negligence claims
alleging that the Department is liable for
against the Department, we conclude that the
those injuries proximately caused by Trooper
Department is entitled to judgment based on
Rivera's wrongful acts and negligence during
sovereign immunity. Finally, we hold that
the traffic stop and subsequent chase on the
Rivera, in his official capacity, is not subject
grounds that the Department negligently
to suit under section 1983.
trained and supervised Rivera. As well, Petta
I
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Texas DPS v. Petta, 44 S.W.3d 575 (Tex., 2001)
or attempting to elude a police officer, Petta commensurate with the necessity. 14 If the
pleaded the defense of necessity, arguing that officer uses more force than necessary, the
Trooper Rivera's actions caused her to suspect would then be justified to resist
reasonably believe that she faced more arrest. 15 A suspect may not presume that the
"imminent harm" from Rivera's conduct than threatened use of force by a law officer will
the potential harm the public might face on become more than a threat, or that the use of
account of her unlawful flight. Once the force will be excessive. 16 Said another way,
necessity defense has been raised by the Rivera cannot be found liable for assault if he
evidence, the prosecution has the burden to used no greater degree of force than
disprove this defense beyond a reasonable reasonably necessary to arrest Petta. By the
jury's conviction of Petta, it necessarily
Page 579 concluded that Petta did not have a
reasonable belief of imminent harm that
doubt. 9 Had the jury believed Petta's defense, would otherwise excuse her flight from
or had any reasonable doubt, it was Trooper Rivera. In short, by convicting Petta,
instructed to find Petta not guilty. But the the jury found that the imminent harm Petta
jury convicted her, thus rejecting her defense sought to avoid (Rivera's actions) did not
beyond a reasonable doubt. clearly outweigh the harm she created by
fleeing. This is an objective standard,
Collateral estoppel applies when an issue measured by the standards that an ordinary
decided in the first action is actually litigated, and prudent person would apply to the
essential to the prior judgment, and identical circumstances that the actor faced. 17 And this
to an issue in a pending action. 10 The is the same fact necessary to establish
doctrine is designed to promote judicial Rivera's privilege - that any imminent harm
efficiency and to prevent inconsistent Rivera caused in using force against Petta was
judgments by preventing any relitigation of commensurate with the harm Petta
an ultimate issue of fact. 11 Collateral estoppel potentially created by fleeing. Because both
does not require mutuality. 12 It applies when Petta's criminal necessity defense and
the party against whom it is asserted had a Rivera's civil privilege
full and fair opportunity to litigate the issue in
the prior suit. 13 Page 580
There is no doubt that Petta had an defense turned on the same fact issue, i.e., the
opportunity to fully litigate whether she proportionality of Rivera's actions, collateral
reasonably believed she faced more imminent estoppel bars Petta from relitigating whether
harm at the hands of Trooper Rivera than the Rivera's use of force against Petta was
potential harm the public might face from her privileged. Thus, Rivera is entitled to
illegal actions. Therefore, Petta is collaterally summary judgment on Petta's tort claims.18
estopped from trying that issue in this case.
The question is whether that issue is identical III
to an issue that must be proved in this case
for Petta to recover civilly from Rivera. We The Department's Liability Under the
think that it is. Tort Claims Act
immunity. The Tort Claims Act waives since it is an abstract concept that lacks
sovereign immunity from suits arising both corporeal, physical, or palpable qualitites. 23
from: (1) the negligent conduct of an In Dallas County v. Harper, 24 we concluded
employee if property damage, personal injury, that simply reducing information to writing
or death arises from the operation or use of a on paper does not make the information
motor-driven vehicle or equipment if the "tangible personal property." 25 And in Kassen
employee would be personally liable to the v. Hatley, 26
claimant; and (2) from injuries caused by a
condition or use of tangible personal property Page 581
if the governmental unit would, were it a
private person, be liable to the claimant we specifically held that the information in an
according to Texas law. 19 The Act specifically emergency room procedures manual is not
excludes waiver for a claim "arising out of tangible personal property. 27 Thus, while
assault, battery, false imprisonment, or any instructional manuals can be seen and
other intentional tort . . . ." 20 Here, the touched, the Legislature has not waived
conduct Petta complains of is the same immunity for negligence involving the use,
conduct that forms the basis of her assault misuse, or non-use of the information they
and battery claim against Rivera. The specific contain. 28 Because written information in the
conduct - hitting the window, calling a tow form of instructions and manuals is not
truck, aiming the gun, blocking Petta in with tangible personal property, we conclude that
the cruiser, and firing at Petta's tires - is the information contained in the
clearly intentional. The allegations fit Department's policy and training manuals in
squarely within section 101.057's exclusion of this case is not tangible personal property
claims arising out of assault, battery, and and, accordingly, does not give rise to a claim
false imprisonment. under the Tort Claims Act. 29 Likewise, Petta's
claims that the Department failed to devise
We have also said, however, that the adequate tests to assess Rivera's emotional
Tort Claims Act waives sovereign immunity competence, and that it failed to discipline
from suit for claims that an officer negligently Rivera after the incident, also involve the
carried out governmental policy. 21 But Petta misuse or non-use of information and are
does not allege facts demonstrating that thus barred by sovereign immunity.
Rivera negligently implemented policy. To
support her negligence claim, Petta alleges Finally, we note that Petta's reliance on
that Rivera negligently ignored police Young v. City of Dimmitt 30 to support her
procedure by continuing the pursuit, and that negligent training claim is misplaced. In
Rivera negligently ignored an order not to Young, we disapproved of a court of appeals'
shoot at her car. But these too are intentional statement that an officer's intentional act
rather than negligent acts, and thus do not necessarily precluded a suit for negligence
fall within the waiver of sovereign immunity. under the Tort Claims Act. In doing so, we
simply pointed out that a claim for negligent
Petta's claim that the Department supervision or training was a distinct cause of
negligently failed to furnish the proper action. 31 Nothing in what we said implied
training, instruction, training manuals, and that this distinct cause of action was
documents to Rivera also fails. To state a otherwise excepted from satisfying the Tort
claim under the Tort Claims Act, a plaintiff Claims Act's tangible personal property
must allege an injury resulting from the requirement. As we stated above, Petta's
"condition or use of tangible personal or real negligent training claim does not involve
property." 22 We have long held that tangible personal property. Accordingly, it is
information is not tangible personal property, not cognizable under the Tort Claims Act.
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Texas DPS v. Petta, 44 S.W.3d 575 (Tex., 2001)
Because sovereign immunity is not on the basis of sovereign immunity from suit
waived for Petta's claims, the Department is once the case is entertained and the merits
entitled to summary judgment. are presented.
IV V
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Texas DPS v. Petta, 44 S.W.3d 575 (Tex., 2001)
Reporter's Record at 431-32; see also Tex. 23. University of Tex. Med. Branch at
Penal Code 2.03(d), 9.02. Galveston v. York, 871 S.W.2d 175, 179 (Tex.
1994).
7. Petta v. Rivera, 923 S.W.2d 678, 688 (Tex.
App.-Corpus Christi 1996, writ denied) . 24. 913 S.W.2d 207 (Tex. 1995).
8. 985 S.W.2d at 204, 206. 25. Id. at 207-08; York, 871 S.W.2d at 179.
9. Tex. Penal Code 2.03(d), 9.02; Smith v. 26. 887 S.W.2d 4 (Tex. 1994).
State, 874 S.W.2d 269, 271 (Tex. App.-
Houston [14th Dist.] 1994, pet. ref'd). 27. Id. at 14.
10. See Johnson & Higgins, Inc. v. Kenneco 28. York, 871 S.W.2d at 179.
Energy, Inc., 962 S.W.2d 507, 521 (Tex.
29. See id.; see also Holland v. City of
1998).
Houston, 41 F. Supp. 2d 678, 711 (S.D. Tex.
11. See Sysco Food Servs., Inc. v. Trapnell, 1999).
890 S.W.2d 796, 801 (Tex. 1994).
30. 787 S.W.2d 50 (Tex. 1990).
12. Eagle Properties, Ltd. v. Scharbauer, 807
31. Id. at 51.
S.W.2d 714, 721 (Tex. 1991).
32. Will v. Michigan Dep't of State Police, 491
13. See id. (quoting Tarter v. Metropolitan
U.S. 58, 71 (1989).
Sav. & Loan Ass'n, 744 S.W.2d 926, 927 (Tex.
1988)). 33. 837 S.W.2d 631 (Tex. 1992).
14. Tex. Penal Code 9.51; Harper v. State, 207 34. Thomas, 837 S.W.2d at 632.
S.W. 96, 97 (Tex. Crim. App. 1918), overruled
on other grounds, Lenzen v. State, 16 S.W.2d ---------------
234, 235 (Tex. Crim. App. 1929).
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