the City of Austin v. Amy-Marie Howard, Individually and as Next Friend of D. A., 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

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00439-CV

The City of Austin, Appellant

v.

Amy-Marie Howard, Individually and as Next Friend of D. A., 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, Appellees

FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-21-007467, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING

DISSENTING OPINION

For the reasons explained below, I respectfully dissent from the Court’s analysis of

the causation issue and its conclusion that the appellees’ pleadings do not sufficiently allege

proximate cause.

In a case in which the sufficiency of the pleadings is challenged, the plaintiffs are

required to establish only that they have “alleged facts that affirmatively demonstrate the court’s

jurisdiction to hear the cause.” Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004) (emphasis added). When determining whether the plaintiffs have met this burden, we

liberally construe their pleadings, taking all factual assertions as true, and look to the plaintiffs’

intent. Texas Dep’t of Crim. Just. v. Rangel, 595 S.W.3d 198, 205 (Tex. 2020). If the pleadings

do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency

and the plaintiffs should be afforded the opportunity to amend. Miranda, 133 S.W.3d at 226-27.

If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction

may be granted without allowing the plaintiffs an opportunity to amend. Id.

I disagree that the City has shown that the appellees’ pleadings affirmatively negate

the existence of jurisdiction. As the Court acknowledges, proximate cause is generally a question

for the factfinder unless reasonable minds could not differ about whether it exists. Arkansas Fuel

Oil Co. v. State, 280 S.W.2d 723, 729 (Tex. 1955) (holding that State’s antitrust case should be

dismissed because State’s pleading, which pleaded all its evidence, did not present fact issue when

State’s pleading of circumstantial evidence could not establish existence of artificial price

structure). Here, the City has presented no evidence to contradict the appellees’ allegations that

Aguilar’s death was caused by former Officer Spradlin’s use of a noncompliant duty belt lacking

keepers—an integral safety component—which failed to work properly, causing Spradlin to

interrupt his restraint of Woodburn, a violent suspect, who then escaped and killed Aguilar in less

than three minutes. Instead, the City attempts to analogize to other cases to establish as a matter

of law that the condition or use of the duty belt did not cause Aguilar’s death.

When viewing the alleged facts in the appellees’ favor, as we must, I would

conclude that those facts are more analogous to cases where courts concluded that the plaintiffs

alleged sufficient facts to allow a factfinder to make the ultimate determination on both

foreseeability and cause in fact. Although the Court focuses its analysis primarily on

foreseeability, it first concludes that “[a] reasonable person could not conclude that Aguilar’s death

was the natural and probable result of the duty belt’s failure to stay put,” meaning that the appellees

have not sufficiently alleged cause in fact. (Slip op. at 6.) I disagree with this conclusion. The

2 City does not dispute that Woodburn was an aggressive and violent person who had attacked one

of the coffee shop’s customers and had then been restrained by multiple other customers until

Spradlin arrived and began to handcuff Woodburn. Spradlin admitted during the City’s internal

investigation that the purpose of keepers is to keep the belt from coming completely off the waist

and that without them it will fall off. 1 He admitted that he lost his focus on Woodburn when his

belt fell off and did not attempt to stop Woodburn from leaving the coffee shop. Woodburn went

next door and killed Aguilar within three minutes of Spradlin’s belt falling off. Thus, I would

conclude that the appellees have adequately alleged that the condition or use of the duty belt

“serve[d] as ‘a substantial factor in causing the injury and without which the injury would not have

occurred.’” Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 929 (Tex. 2015)

(quoting Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010) (citation omitted)).

“Cause in fact is essentially but-for causation.” Id. For example, in Ryder, the pleadings alleged

that a vehicle collision would not have occurred but for a deputy sheriff’s driving his cruiser toward

oncoming traffic during a traffic stop, which caused the cruiser’s lights to blind and distract another

driver, who then crashed into the stopped vehicle. Id. The Texas Supreme Court concluded these

allegations easily satisfied the standard for alleging the cause-in-fact prong of proximate cause.

Id. Here, but for the duty belt’s failure, there would have been no interruption of Spradlin’s

restraint of Woodburn, whose escape resulted almost immediately in Aguilar’s death. To me, the

appellees have sufficiently alleged facts that support the cause-in-fact prong of proximate cause.

1 As the Court notes, the appellees included additional facts in their response to the City’s plea to the jurisdiction that they had obtained from the City’s production of documents related to the City’s internal investigation of the incident. The appellees indicated their intent to plead these additional facts in an amended petition. 3 I also disagree with the Court’s conclusion that a reasonable person could not

foresee that the duty belt’s “failure might cause the kind of harm that Aguilar suffered.” (Slip op.

at 6.) The keepers on a duty belt are designed to keep a police officer’s belt containing his taser,

gun, and other equipment around his waist. If that belt falls off during an officer’s restraint of a

suspect, especially a violent suspect, in my opinion, it is easily foreseeable that the suspect may

escape and harm or kill someone while the officer is distracted by the loss of the belt, not to

mention that the suspect could take control of the officer’s belt and use the gun or taser to injure

or kill the officer or another innocent bystander. The law does not require foreseeability of the

exact sequence of events that cause the harm. “Foreseeability requires only ‘that the injury be of

such a general character as might reasonably have been anticipated; and that the injured party

should be so situated with relation to the wrongful act that injury to him or to one similarly situated

might reasonably have been foreseen.’” Ryder, 453 S.W.3d at 929 (quoting Nixon v. Mr. Prop.

Mgmt. Co., 690 S.W.2d 546, 551 (Tex. 1985)).

Similarly to the City here, the defendant in Ryder argued that the officer’s use of

his vehicle when turning around merely furnished the condition that made the death possible. Id.

There the pleadings alleged that “a reasonable peace officer could have foreseen that driving

westbound near an eastbound shoulder at night—with headlights and emergency lights

illuminated—might confuse drivers, disrupt traffic, and lead to a collision much like the one that

ultimately occurred.” Id. The Texas Supreme Court concluded that “the alleged harm is of the

very character that might reasonably have been anticipated,” and thus “[u]pon consideration of

these allegations, a reasonable juror might find the requisite nexus between the use of [the

deputy’s] vehicle and any injuries suffered . . . .” Id. I would reach the same conclusion in this

case—that the alleged harm is of the very character that might have reasonably been anticipated

4 and thus a reasonable juror might find the requisite nexus between the use of the duty belt and

Aguilar’s death.

The Court concludes that as a matter of law Aguilar’s death is an injury that is too

causally attenuated from the alleged condition or use of the duty belt for the duty belt’s condition

or use to be a proximate cause of Aguilar’s death. (Slip op. at 7.) In all the condition-or-use cases

that the Court relies upon to support this conclusion, the courts concluded that the condition or use

of property at issue merely furnished the condition that made the injury possible, and all involved

the death or injury of someone whose own actions were also a cause of their injury or death, which

is not the case here. See, e.g., City of Dallas v. Sanchez, 494 S.W.3d 722, 727 (Tex. 2016)

(malfunctioning 9-1-1 system that contributed to misidentified apartment number was not

proximate cause of overdose death); Dallas Cnty. Mental Health & Mental Retardation v. Bossley,

968 S.W.2d 339, 343 (Tex. 1998) (unlocked door at mental-health center was not proximate cause

of escaped patient’s suicide by stepping in front of truck on freeway half mile away); City of Austin

v. Anam, 623 S.W.3d 15, 19 (Tex. App.—Austin 2020, no pet.) (officer’s failure to fasten seatbelt

on handcuffed suspect in vehicle was not proximate cause of suspect’s shooting himself with gun

in his possession); Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 412 (Tex. App.—Fort

Worth 2006, pet. denied) (improper application of handcuffs and leg restraints on suspect being

transported in police vehicle was not proximate cause of his kicking out car’s window and

throwing himself through window and onto highway). While I do not disagree that there are some

cases in which a defendant’s conduct may be too causally attenuated from a plaintiff’s injury to

constitute proximate cause, see Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477-78

(Tex. 1995) (affirming summary judgment in favor of defendant because Boys Club proved as

matter of law that its failure to investigate, screen, or supervise volunteer with criminal record for

5 driving while intoxicated was not proximate cause of volunteer’s sexual assault of plaintiffs), I

disagree that the City has established as a matter of law that the duty belt’s failure is too causally

attenuated in this case. See Ryder, 453 S.W.3d at 929-30 (concluding that “the allegations suggest

that [the deputy’s] operation of his cruiser might not have been attenuated from the alleged

injuries” and thus disagreeing with appellate court’s conclusion that deputy’s use of cruiser merely

furnished condition that made injury possible). To me, the facts alleged in this case are most

similar to the facts alleged in Michael v. Travis County Housing Authority, 995 S.W.2d 909, 914

(Tex. App.—Austin 1999, no pet.). In Michael, this Court found that the facts alleged—that two

pit bulls escaped through a defective fence and immediately attacked the plaintiff on a nearby

sidewalk in close proximity to the fence—differed from the type of attenuated causal relationship

that the Texas Supreme Court determined in Bossley does not satisfy the requirement to allege that

the use and condition of property is the proximate cause of an injury. Id. at 913-14 (citing Bossley,

968 S.W.2d at 343).

Moreover, the Court is only able to reach its conclusion that the injury is too

causally attenuated from the condition or use of the belt by recasting the appellees’ allegations to

center them on Spradlin’s “decision to resecure the belt instead of continuing to handcuff

Woodburn or otherwise attempt to apprehend him.” (Slip op. at 8.) But if we construe the

pleadings in the appellees’ favor, looking to their intent, as we must, the real substance of their

claim is that it was the condition or use of the noncompliant duty belt that lacked keepers (an

integral safety component), which resulted in the foreseeable consequence of the belt falling off

when Spradlin was attempting to handcuff Woodburn, distracting Spradlin from the continued

restraint of a violent suspect who then escaped and in less than three minutes killed someone. In

my opinion, the appellees have sufficiently alleged the foreseeability of this type of harm resulting

6 from the duty belt’s failure while Spradlin was restraining a violent suspect to allow the case to

proceed so that a factfinder may make the fact-specific determination of whether proximate cause

has been established.

In addition, the City asserts in its second issue, which the Court does not reach, that

it retains immunity for the appellees’ claims under the public-duty doctrine, which does not

provide “recourse against the individual policeman for failing to take action to prevent or stop the

commission of a crime.” Munoz v. Cameron County, 725 S.W.2d 319, 321-22 (Tex. App.—

Corpus Christi–Edinburg 1986, no writ). I would conclude this doctrine has no application here

because when we construe the pleadings in the appellees’ favor as required, the real substance of

their allegations is that the duty belt’s failure is a proximate cause of Aguilar’s death because it

interrupted Spradlin’s restraint, not that Spradlin violated his duty to prevent or stop the

commission of a crime. At most, they allege that Spradlin violated his duty to use a belt that was

compliant with City policy.

Therefore, because I would affirm the trial court’s order denying the City’s plea to

the jurisdiction, I respectfully dissent.

__________________________________________ Gisela D. Triana, Justice

Before Justices Baker, Triana, and Kelly

Filed: February 10, 2023