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Clegg v. City of Fort Worth

Court of Appeals of Texas, Second District, Fort Worth

December 14, 2017

CHRISTOPHER LERON CLEGG APPELLANT
v.
CITY OF FORT WORTH APPELLEE

         FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 048-285247-16

          PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.

          MEMORANDUM OPINION [1]

          MARK T. PITTMAN JUSTICE

         This is an appeal from the trial court's granting of a plea to the jurisdiction. Appellant Christopher Leron Clegg appeals the trial court's dismissal of his suit against Appellee the City of Fort Worth (the City).[2] Because the trial court did not err by granting the City's plea to the jurisdiction, we affirm.

         I. BACKGROUND

         At approximately 11:53 p.m. on the evening of May 23, 2014, a car driven by Mark Madrigal collided with a car driven by Marcy Howell. The accident occurred when Madrigal, driving northbound at a high rate of speed, ran a red light. His car collided with Howell's eastbound car as she drove through the intersection. Clegg, a passenger in Madrigal's car, suffered serious injuries as a result of the accident.

         While on patrol that night, City of Fort Worth Police Officer Olimpo Hernandez witnessed the accident. Officer Hernandez had been heading eastbound slightly behind Howell's car when the collision took place. In responding to the accident, Officer Hernandez wrote a crash report in which he stated that he had detected an odor of alcohol on Madrigal's breath and had observed multiple containers of beer inside Madrigal's car. In fact, there is no dispute that Madrigal and Clegg had been drinking together prior to the accident. Madrigal had a blood-alcohol level of .10 following the accident and was arrested for driving while intoxicated and intoxication assault. Also, Clegg admitted that his own judgment was impaired on the night of the accident after drinking several alcoholic beverages.

         On May 2, 2016, Clegg filed suit against the City, the City of Fort Worth Police Department (the Police Department), and Officer Hernandez in the 48th District Court seeking past and future medical expenses, past and future physical impairment damages, loss of earnings, and past and future mental anguish damages.[3] In his petition, Clegg alleged that the City, the Police Department, and Officer Hernandez were negligent. Clegg also alleged that through Officer Hernandez's actions and omissions, the City and Police Department violated sections 101.021 and 101.0215(a)(20) and (21) of the Texas Tort Claims Act (TTCA); these allegations related to Officer Hernandez's use of his patrol vehicle equipped with warning signals and his duty to regulate traffic. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2011), § 101.0215(a)(20), (21) (West Supp. 2017). In addition, Clegg asserted that the City and the Police Department were liable for Officer Hernandez's allegedly negligent actions under section 101.106(f) of the TTCA because he was acting within the scope and course of his employment when the accident took place. See id. § 101.106(f) (West 2011). Specifically, Clegg theorized that Officer Hernandez was negligent because he "took no affirmative action to warn [Clegg] of the impending danger or hazard created by Mr. Madrigal's reckless driving, [n]or otherwise t[ook] custody or control of Mr. Madrigal, and/or regulate[d] the movement of the Madrigal vehicle prior to the collision." Stated otherwise, Clegg alleged that the City, the Police Department, and Officer Hernandez failed to provide adequate police protection to prevent the accident caused by Madrigal.

         The City first filed a motion to dismiss Officer Hernandez from the lawsuit under section 101.106(e) of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 1010.106(e) (West 2011) ("If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit."). The trial court granted the City's motion and entered an order dismissing the claims against Officer Hernandez.[4]

         The City then filed a plea to the jurisdiction contending that the trial court was without jurisdiction to adjudicate Clegg's claims against the Police Department because it is merely a department of the City and not a jural entity with a capacity to be sued separately from the City. The City further asserted that Clegg's claims against the City should be dismissed for lack of jurisdiction in that section 101.021 of the TTCA did not waive the City's immunity from suit because Clegg's injuries were not caused by Officer Hernandez's use of his patrol vehicle. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A). Moreover, the City argued that its immunity had not been waived for Clegg's claim that Officer Hernandez breached his duty to "protect and serve" by failing to prevent the accident because, pursuant to section 101.055(3) of the TTCA, there is no waiver of immunity for claims of negligence arising from the failure to provide police protection. See id. § 101.055(3) (West 2011).

         In a convoluted response to the plea to the jurisdiction, Clegg argued that the City waived immunity because Officer Hernandez had a duty to warn Clegg and others of the impending collision caused by Madrigal's reckless driving, and that by failing to warn, Hernandez breached his duty to serve and protect and thus violated section 101.0215(a)(20) and (21) of the TTCA related to a City's liability for damages arising from "warning signals" and "regulation of traffic." See id. § 101.0215(a)(20), (21).

         The trial court granted the City's plea to the jurisdiction and dismissed Clegg's claims against the City and the Police Department. At Clegg's request, the trial court made findings of fact and conclusions of law. Among other things, the trial court found: (1) that the vehicles involved in the accident were not owned by or under the control of the City; (2) that neither driver was an agent or employee of the City; (3) that Madrigal ran a red light and caused the accident; (4) that the accident was not caused by the use or condition of tangible personal or real property of the City; and (4) that the collision was not caused by a City employee's operation or use of a motor-driven vehicle. The trial court then concluded: (1) that Officer Hernandez had been engaged in the governmental function of police protection; (2) that Clegg's petition "fail[ed] to allege [a] negligent act on the part of a City employee in the use of a motor-driven vehicle or equipment that caused the accident in question"; (3) that Clegg's "allegations against the City amount to claims arising out of the alleged failure to provide, or method of providing, police protection"; and (4) that because Clegg's "allegations amount to complaints about the failure to provide, or method of providing police protection, there is no waiver of governmental immunity in this case."

         II. ISSUES

         On appeal, Clegg challenges the trial court's granting of the plea to the jurisdiction in favor of the City. Although Clegg's briefing is disorganized and confusing, [5] he does ...


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