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 ( 2023 )

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
MEMORANDUM OPINION
The City of Austin appeals from the trial court’s denial of its plea to the
jurisdiction. See Tex. Civ. Prac. & Rem. Code § 51.014(8). This suit arises from the tragic
death of Johnathan Aguilar at the hands of Dylan Woodburn, who stabbed and killed Aguilar
minutes after fleeing impending restraint by a City police officer. Appellees1 sued the City, and
other parties not before us on appeal, to recover damages for Aguilar’s death. For the following
reasons, we reverse the trial court’s order and render judgment granting the City’s plea to the
jurisdiction and dismissing appellees’ claims against the City.
1
Appellees are Amy-Marie Howard, in her capacities as Aguilar’s wife, next friend for
the couple’s minor child, and representative of Aguilar’s estate; and Aguilar’s mother, Nanette
Mojica.
BACKGROUND
Seeking to recover damages for the death of Aguilar, appellees filed suit against
the City, the restaurant where Aguilar was killed, and the manufacturer and seller of the duty belt
worn by the police officer involved in the incident.2 The following narrative derives from the
factual allegations in appellees’ original petition.3
The morning of January 3, 2020, Austin Police Department (APD) received a
“suspicious person” call related to a man—later determined to be Woodburn—inside Bennu
Coffee disturbing customers, holding a large rock, and threatening customers. After the call to
the police, Woodburn attacked a Bennu customer with a large object and was eventually wrestled
to the ground and restrained by multiple Bennu customers. Officer Patrick Spradlin was the first
APD officer to respond to the call and entered Bennu, approached Woodburn, and directed the
Bennu customers restraining Woodburn to release him. The customers complied with Officer
Spradlin’s order.
Officer Spradlin attempted to restrain Woodburn by placing him into handcuffs.
However, during the exchange, Officer Spradlin’s duty belt came loose, and the officer put his
handcuffs down and, with both hands, attempted to resecure his duty belt. While Officer
Spradlin attempted to resecure his duty belt, Woodburn stood up and left the coffee shop. Upon
exiting Bennu, Woodburn entered an adjacent restaurant (Freebirds) through a door that its
2
For reasons unexplained in the record, appellees did not file suit against Woodburn.
3
In their response to the City’s plea to the jurisdiction, appellees represented that they
would be filing an amended petition containing further factual allegations gleaned from recent
documents produced by the City, including the results of an internal investigation of the incident.
Their response cited some of the further details. However, the record contains no amended
petition, and we therefore cite the factual allegations contained in appellees’ live (original)
petition.
2
general manager, Ryan Bramlett, had left unlocked, despite earlier noticing Woodburn acting
strangely and erratically while peering through the restaurant’s door. Bramlett had initially
locked the door behind him when he first arrived at work at 7:50 a.m. to help Freebirds employee
Aguilar prepare the business for the day but, shortly thereafter, Bramlett unlocked the door to
allow a knife-sharpening vendor access to the business. The knife vendor placed the freshly
sharpened knives on the counter and was accompanied to the door by Bramlett, who did not lock
the door after the vendor left. Moments later Woodburn entered through the unlocked door,
picked up a knife from the counter, and stabbed Aguilar multiple times. Aguilar died from the
stab wounds.
A few days after the incident, APD chief Brian Manley stated that an officer’s
duty belt coming loose “is something that we do not expect to have happened. We expect
to provide our officers with the best equipment, and we expect our equipment to perform
appropriately.” Appellees allege that the failure of Officer Spradlin’s duty belt to have
“keepers”4 or other “integral safety components,” the duty belt’s failure to comply with APD
policy, and the duty belt’s use or misuse proximately caused Aguilar’s death.
DISCUSSION
The City, as a political subdivision of the State, is immune from suit and liability
unless the State consents. See City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014).
Governmental immunity defeats a court’s jurisdiction. Dallas Area Rapid Transit v. Whitley,
4
Appellees allege that “keepers” are “safety devices intended to prevent gun belts from
failing (falling off) at critical moments.” Wikipedia explains that keepers “wrap around the duty
belt and trouser belt, ensuring that the belt stays in place, even when the officer is taking
something from the belt or engaging in an altercation with a suspect.” Police Duty Belt,
Wikipedia, https://en.wikipedia.org/wiki/Police_duty_belt (last visited Jan. 31, 2023).
3
104 S.W.3d 540, 542 (Tex. 2003). Where a government entity challenges jurisdiction on the
basis of immunity, the plaintiff must affirmatively demonstrate the court’s jurisdiction by
alleging a valid waiver of immunity. Ryder Integrated Logistics, Inc. v. Fayette County,
453 S.W.3d 922, 927 (Tex. 2015). To determine if the plaintiff has met that burden, we consider
the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the
evidence submitted by the parties. Whitley, 104 S.W.3d at 542. When a plea to the jurisdiction
challenges the sufficiency of the claimant’s pleadings, as here, we determine whether the
pleadings contain enough facts to demonstrate jurisdiction. See Texas Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe the pleadings liberally in favor of
the plaintiffs and look to the pleaders’ intent. Id. 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. Id. 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. at 227.
The asserted source of waiver in this case is the Texas Tort Claims Act (TTCA),
which waives governmental immunity in a limited number of circumstances including, relevant
here, “personal injury and death so caused by a condition or use of tangible personal or real
property.” See Tex. Civ. Prac. & Rem. Code § 101.021. That is, the plaintiff must show that
personal injury or death was “proximately caused by the condition or use of tangible property”
at issue. Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343
(Tex. 1998).
4
Proximate cause, in turn, requires both cause in fact and foreseeability. Ryder,
453 S.W.3d at 929. For a condition or use of property to be a cause in fact, the condition or use
must “serve as a substantial factor in causing the injury and without which the injury would not
have occurred.” Id. Further, the condition or use “must have actually caused the injury.” City of
Dallas v. Sanchez, 494 S.W.3d 722, 726 (Tex. 2016) (per curiam) (quoting Dallas County v.
Posey, 290 S.W.3d 869, 872 (Tex. 2009)). Causation is lacking if the tangible property “does no
more than furnish the condition that makes the injury possible,” Bossley, 968 S.W. 2d at 343, and
the use of property that “simply hinders or delays treatment . . . does not constitute a proximate
cause of an injury,” Sanchez, 494 S.W.3d at 726. To constitute cause in fact, the alleged
negligent act or omission must “justify the conclusion that [the] injury was the natural and
probable result thereof.” Doe v. Boys Club of Greater Dall., Inc., 907 S.W.2d 472, 477 (Tex.
1995) (citations omitted).
Foreseeability requires that a person of ordinary intelligence should have
anticipated the danger created by a negligent act or omission. Id. The danger of injury is
foreseeable if its “general character might reasonably have been anticipated . . . and 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. The question of
foreseeability, and proximate cause generally, involves a practical inquiry based on “common
experience applied to human conduct.” Doe, 907 S.W.2d at 477. It asks whether the injury
“might reasonably have been contemplated” as a result of the defendant’s conduct, id., or—by
extension to claims under the TTCA—as a result of the condition or use of tangible property, see
Tex. Civ. Prac. & Rem. Code § 101.021. Proximate cause is generally a question for the
factfinder unless reasonable minds could not differ about whether it exists, and thus we must
5
determine whether the pleaded facts, taken as true, create a fact question regarding the
causal relationship between the condition or use of property and the injury or death. See Ryder,
453 S.W.3d at 927, 929 (noting that we review trial court’s ruling on plea to jurisdiction
de novo).
Viewing the facts alleged in favor of appellees, as we must, we conclude that
there is no fact question on either foreseeability5 or cause in fact. Aguilar’s death cannot be said
to have been the natural and probable result of the duty belt’s failure to stay put, and it was not
reasonably foreseeable that the belt’s failure might cause the kind of harm that Aguilar suffered.
See Ryder, 453 S.W.3d at 929; Doe, 907 S.W.2d at 477. Instead, 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: on January 3, 2020, Officer Spradlin’s duty belt
either lacked an “integral safety component” such as keepers or was not in compliance with APD
policy when the officer wore it to respond to a report of a man threatening Bennu customers with
a weapon. Officer Spradlin arrived on the scene and entered the coffee shop. He ordered the
customers who had wrestled Woodburn to the floor and were holding him down to release him.
Officer Spradlin began handcuffing Woodburn but ceased doing so when his duty belt came
loose, instead attempting to resecure his duty belt. Woodburn exited the coffee shop and entered
the adjacent Freebirds through an unlocked door before regular business hours, picked up from
5
Although in its brief the City focuses on the cause-in-fact prong of proximate cause, we
nonetheless may review whether the alleged facts create a fact issue on the foreseeability prong
because that subsidiary question is fairly included within the City’s issue statement, “Was Mr.
Aguilar’s death proximately caused by a condition or use of the police officer’s duty belt?” See
City of Austin v. Anam, 623 S.W.3d 15, 19 (Tex. App.—Austin 2020, no pet.). Furthermore,
jurisdictional issues relating to sovereign immunity may be raised by a court sua sponte. See id.6
a counter a recently deposited and newly sharpened knife, and repeatedly stabbed to death
Freebirds employee Aguilar.
Even assuming that the duty belt lacked an “integral safety component” or was
not in compliance with APD policy, the cases appellees cite involving tangible personal property
that lacked integral safety components are distinguishable because the injuries therein were
the reasonably foreseeable and direct consequence of the failure to use or provide such safety
components. See, e.g., Robinson v. Central Tex. MHMR Ctr., 780 S.W.2d 169, 171 (Tex. 1989)
(plaintiff known to have epilepsy drowned after mental health center allowed him to swim
without life preserver); Overton Mem’l Hosp. v. McGuire, 518 S.W.2d 528, 529 (Tex. 1975)
(plaintiff injured from falling out of hospital bed that lacked bed rails); see also Michael v.
Travis Cnty. Hous. Auth., 995 S.W.2d 909, (Tex. App.—Austin 1999, no pet.) (passerby injured
by pit bulls that escaped through hole in fence). The same cannot be said for the facts
alleged here.
Although the determination of proximate cause is necessarily fact specific, we
believe that the facts alleged here are analogous to the cases cited by the City, wherein this Court
and others have determined that when injuries are too attenuated—either temporally, physically,
or causally—from the alleged condition or use of tangible personal property, the property’s
condition or use is not the proximate cause as a matter of law. See, e.g., Sanchez, 494 S.W.3d
at 727 (malfunctioning 911 system that contributed to misidentified apartment number was not
proximate cause of overdose death); Bossley, 968 S.W. 2d at 343 (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
7
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).
The real substance of appellees’ complaint is that Aguilar’s death was caused not
by the condition or use of the duty belt but by Officer Spradlin’s decision to resecure the belt
instead of continuing to handcuff Woodburn or otherwise attempt to apprehend him. In our
recent Anam case, this Court determined that there was no proximate cause under alleged facts
with analogous causal attenuation. See Anam, 623 S.W.3d at 15. In that case, the plaintiffs
alleged that a police officer was negligent in failing to refasten the seatbelt of an arrestee after
discovering that his seatbelt had come undone. See id. at 17. Having undone his seatbelt, the
arrestee was able to—and did—access a handgun in his waistband and use it to kill himself.
See id. This Court determined that the plaintiffs had not alleged any facts demonstrating
foreseeability—“i.e., that a person of ordinary intelligence should have anticipated that the
failure to refasten the seatbelt of a handcuffed occupant of the vehicle would create the danger of
suicide by gunshot.” Id. at 19. Instead, their pleadings asserted “in a conclusory manner” only
that it was foreseeable that failing to use the seatbelt properly would cause injury to the arrestee.
Id. Furthermore, this Court concluded that the plaintiffs could not allege any facts demonstrating
foreseeability because the “reasonably anticipated danger or harm created from an unfastened
seatbelt is not suicide by gunshot wound to the head” but injury or death resulting from a vehicle
collision or abrupt stop. See id.
8
Similarly here, 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.
But one would not reasonably anticipate that the duty belt’s falling off would create the danger
of a suspect leaving the officer’s presence, entering another business, and stabbing a person with
a freshly sharpened knife recently dropped off at the establishment’s counter. While those harms
could reasonably be anticipated from an officer’s negligent decision to resecure his duty belt
instead of attempting to apprehend a dangerous suspect, the TTCA waives immunity only when
the use or condition of the personal property at issue “actually caused the injury.” See Sanchez,
494 S.W.3d at 726. “[T]hat some [personal] property is merely involved [in the injury] is not
enough.” Texas Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001) (holding that
hospital’s alleged use of medications on patient, which allegedly “masked” his symptoms of
meningitis, did not actually cause patient’s death; rather, his death was caused by alleged failure
to timely diagnose him) (citing Bossley, 968 S.W.2d at 342).
We conclude that the real substance of the plaintiffs’ claim is that Officer
Spradlin made a negligent decision or failed to act as a reasonable officer would in the same
circumstances, and we thus follow those cases finding no waiver of immunity when the
plaintiff’s injuries are too causally attenuated from the alleged but-for cause. See, e.g., Bossley,
968 S.W.2d at 343 (“The real substance of plaintiffs’ complaint is that [Bossley’s] death was
caused, not by the condition or use of property, but by the failure of Hillside’s staff to restrain
him once they learned he was still suicidal.”); Anam, 623 S.W.3d at 15 (“[T]he real substance of
the Anams’ claim is that Zachary’s suicide was caused not by the failure to refasten his seatbelt
or the condition of the seatbelt but by the fact that Wall failed to detect and remove Zachary’s
9
gun before putting him in the patrol car.”); Pakdimounivong, 219 S.W.3d at 412 (improper
application of leg restraints and handcuffs did not cause injury but “at most created a condition, a
lack of restraint, that allowed Vattana to cause his own death”); see also Doe, 907 S.W.2d at 477
(noting that connection between but-for cause and plaintiff’s injuries “simply may be too
attenuated to constitute legal cause”).
Guided by the above-cited precedents, we conclude that the use or condition of
Officer Spradlin’s duty belt is too causally attenuated from Woodburn’s stabbing of Aguilar
to constitute a proximate cause of Aguilar’s death. See Bossley, 968 S.W.2d at 343; Anam,
623 S.W.3d at 19. While Aguilar’s death was tragic, we cannot agree with the trial court’s
determination that the pleaded facts create a fact issue concerning proximate cause.
Furthermore, we conclude that the alleged facts demonstrate incurable defects in jurisdiction,
conclusively negating the existence of jurisdiction, and thus plaintiffs need not be afforded an
opportunity to amend their petition.6 See Miranda, 133 S.W.3d at 226–27. We accordingly
sustain the City’s first issue.7
6
We so conclude despite the alleged additional facts appellees cite in their response
to the City’s plea to the jurisdiction, which facts they contend derive from recent document
production related to the City’s internal investigation of the incident. The additional alleged
facts include (1) a more exact timeline of the events preceding Aguilar’s death, indicating that
less than three minutes elapsed from the time Officer Spradlin’s duty belt came loose to when
Woodburn was seen leaving Freebirds after stabbing Aguilar; (2) Officer Spradlin’s admissions
that (a) he knew he was not wearing keepers or an APD-approved duty belt but responded to the
call nonetheless, despite knowing that his duty belt posed a safety concern, and (b) he was
distracted when his belt fell off completely and thus did not attempt to stop Woodburn from
leaving the coffee shop or give him any verbal commands; and (3) Officer Spradlin’s opinion
that had he been wearing keepers, his duty belt would have stayed put. These facts do not
change our conclusion that the causal relationship between the use or condition of the belt and
Aguilar’s death is too attenuated.
7
Because we have sustained the City’s first issue, we need not address its second issue,
in which it contends that it also enjoys governmental immunity under the so-called “public duty
10
CONCLUSION
Having sustained the City’s first issue, we reverse the trial court’s order and
render judgment granting the City’s plea to the jurisdiction and dismissing appellees’ claims
against the City.
__________________________________________
Thomas J. Baker, Justice
Before Justices Baker, Triana, and Kelly
Dissenting Opinion by Justice Triana
Reversed and Rendered
Filed: February 10, 2023
doctrine,” which provides that generally a police officer is not liable for failing to take action to
prevent or stop the commission of a crime. See, e.g., Munoz v. Cameron County, 725 S.W.2d
319, 321–22 (Tex. App.—Corpus Christi-Edinburg 1986, no writ).
11