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Sullivan v. The City of Round Rock

United States District Court, W.D. Texas, Austin Division

July 14, 2017

ROSEMARY CLAUS SULLIVAN, et al.,
v.
THE CITY OF ROUND ROCK, et al.

          ORDER

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         Before the Court is RCI Dining Services (Round Rock), Inc.' s Motion for Leave to Designate Responsible Third Parties (Dkt. No. 236); Round Rock's Response (Dkt. No. 239); Plaintiffs' Response (Dkt. No. 240); and RCI Dining's Replies (Dkt. Nos. 241 & 242). Defendant RCI Dining requests "that the [City of Round Rock] Officers be designated as responsible third parties, so the jury in this manner can consider their comparative responsibilities in relation to RCI Dining, the City of Round Rock, and William Slade Sullivan." Dkt. No. 236 at 3.

         I. Background

         A. Facts

         In March 2014, William Slade Sullivan became intoxicated at Rick's Cabaret, operated by RCI Dining. He asserts he had been promised a ride home by Rick's employees, who had encouraged him to visit the bar. He was a had given management his car keys, as he was a frequent customer, and Rick's staff would often provide him transportation if he was unable to drive. On the evening in question, at closing time management informed Sullivan they would not be able to drive him home, and Sullivan told Rick's employees he was going to his truck to charge his phone and call a friend to pick him up, which he did. While Sullivan sat in his car with the engine running, charging his phone, the bar's security guard called the police and said Sullivan was attempting to drive home drunk. When Round Rock Police officers responded, they asked Sullivan to step out of the car, but he failed to comply, effectively ignoring the officers. The officers had parked their vehicles in front and back of Sullivan's. Sullivan was 5'10" and weighed 350 pounds, had a pre-existing, serious and disabling bone condition and had a handicap parking pass hanging from his rearview mirror. Nevertheless, after only two minutes of attempting to persuade Sullivan to come out of the truck voluntarily, the officers decided to pull Sullivan from the elevated pickup. Sullivan's blood alcohol level was about three times the legal limit for operating a motor vehicle in Texas, and he was visibly intoxicated. When the officers pulled him from his elevated pickup, they were holding both of his arms, so he could not break his fall. Sullivan fell from the truck several feet to the ground, suffering serious injuries that rendered him paralyzed. As a result of those injuries, he was immediately hospitalized. He died several months later, having never left the hospital.

         B. Procedural History

         The Plaintiffs, who are the decedent's mother and the executor of his estate, sued the City of Round Rock and the responding officers pursuant to 42 U.S.C. § 1983 and § 1988 and the Fourth and Fourteenth Amendments. The Plaintiffs sued RCI Dining Services (Round Rock), Inc. and its parent company RCI Hospitality Holdings, Inc., formerly known as Rick's Cabaret International, for negligence, and pursuant to § 2.02 of the Texas Alcoholic Beverages Code (the Dram Shop Act). Plaintiffs also allege that Round Rock and the officers were negligent and grossly negligent in causing Mr. Sullivan's injuries and subsequent death.

         Judge Yeakel denied the City and officers' motion for summary judgment, finding fact questions remained on qualified immunity. The parties then consented to trial before a magistrate judge and the case was transferred to the undersigned. The Fifth Circuit eventually stayed the case pending the officers' appeal, and then reversed the denial of summary judgment. Relying on the dashboard and police videos, the circuit held that the officers used objectively reasonable force in pulling Sullivan from his truck and thus were entitled to qualified immunity from the suit. Brothers v. Zoss, 837 F.3d 513, 520 (5th Cir. 2016). The case was then remanded back to this court, and proceedings were abated while the Plaintiffs' cert, petition was pending. Upon the denial of cert, the say was lifted and the case has proceeded. In the motion before the Court, RCI Dining requests leave to designate the officers as responsible third parties in order to allow the jury to consider their contributions to the Plaintiffs' injury and harm when assigning liability among the parties.

         II. Standard of Review

         Chapter 33 of the Texas Civil Practice and Remedies Code, also known as the Texas Proportionate Liability Act, allows a party to be joined as a responsible third party "in order to promote the equitable allocation of fault." North Cypress Medical Center, 2013 WL 1736764, at *1. See also Streber v. Hunter, 221 F.3d 701, 725 (5th Cir. 2000) (holding that jury was properly asked to allocate responsibility under the Texas proportionate liability scheme). A responsible third party is "any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission ... by other conduct or activity that violates an applicable legal standard, or by any combination of these." TEX. CIV. PRAC. & REM. CODE § 33.011(6). Under Chapter 33, the fact finder determines the percentage of responsibility of each claimant, defendant, settling person and responsible third party "as to each cause of action asserted, " so a party need not be responsible for all causes of action included in the lawsuit. See Id. at § 33.003(a). Chapter 33 only applies to claims based in tort. Id. at § 33.002(a). Chapter 33 "applies to all torts governed by Texas law, including those tried in federal courts." Nunez v. City of Corpus Christi, 2013 WL 164045, at *1 (S.D. Tex. Jan. 14, 2013). A district court has discretion over whether to grant leave to designate a responsible third party. The Cadle Co. v. Keyser, No. 5:15-CV-217-RP, 2015 WL 12866217, at *1 (W.D. Tex. May 13, 2015).

         Under § 33.004(a), "a defendant may seek to designate a person as a responsible third party by filing a motion for leave to designate. . . ." TEX. CIV. PRAC. & REM. CODE § 33.004(d). The standard for designating a potentially responsible third party is notice pleading under the Texas Rules of Civil Procedure. See North Cypress Medical Center Operating Co. v. Gallagher Benefit Services, Inc., 2013 WL 1736764 (S.D. Tex. Apr. 22, 2013). Under Rule 47 of the Texas Rules, a pleading must contain "a short statement of the cause of action sufficient to give fair notice of the claim involved." TEX. R. CIV. P. 47(a). Texas follows anotice pleading standard, "which looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant at trial." Intl. Energy Ventures Mgmt., L.L.C v. United Energy Group, Ltd., 818 F.3d 193, 201 n.17 (5th Cir. 2016).

         The Texas Supreme Court stated, "A defendant may designate a responsible third party even though that party possesses a defense to liability, or cannot be formally joined as a defendant, or both. Chapter 33 then is apparently unconcerned with the substantive defenses of responsible third parties." Galbraith Engineering Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 868-69 (Tex. 2009). In a footnote, the Court quoted a commentator's description that the "thrust of the 2003 statute is that the jury should allocate responsibility among all persons who are responsible for the claimant's injury, regardless of whether they are subject to the court's jurisdiction or whether there is some other impediment to the imposition of liability on them, such as a statutory immunity." Id. at 869 n.6 (emphasis added). The Fifth Circuit and Texas district and appeals courts have said that parties with immunity can still be designated as responsible third parties. "Even parties 'who are not subject to the court's jurisdiction or who are immune from liability to the claimant' can be designated responsible third parties under [Chapter 33]." Fisher v. Halliburton, 667 F.3d 602, 622 (5th Cir. 2012) (quoting In re Unitec Elevator Services Co., 178 S.W.3d 53, 58 n.5 (Tex. App.-Houston [1st Dist] 2005, no pet.)).

         III. Analysis

         The Plaintiffs oppose the third party designation because they argue that the Federal Rules of Civil Procedure govern this case, rather than Chapter 33, so the officers cannot be designated as responsible third parties. Plaintiffs also argue that the designation of unnamed, unrepresented and non-participating third parties is unconstitutional and could affect their ability to recover damages. Round Rock opposes the third party designation on the grounds that ...


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