### 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 A ll Those Entitled to Recover Under the Texas Wrongful Death Act For The Death of Johnathon Aguilar and Nanette Mojica, Individually , Appellee s

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

M E M O R A N D U M O P I N I O N
The City of Austin appeals from the trial court ’ s denial of its plea to the jurisdiction

. See Tex. Civ. Pra c. & Rem . Code § 51.014( 8)

. This suit arises from the tragic de ath of Johnathan Aguilar at the ha nds of D ylan Woodburn , who stabbed and killed Aguilar minutes after fleeing impending restraint by a City polic e officer . A ppellees 1 sued the City , and other par ties not before us on appeal, to recover damages for Aguilar ’ s death. For the following

rea so ns, we reverse the trial court ’ s order and render judgment granting the City ’ s plea to the jurisdiction and dismissing appellee s ’ claims against th e City

.

1 Appellees are Amy

- Marie Howard, in her capaci ties as A guilar ’ s wife , next friend for the couple ’ s minor child, and re pr esenta tive of A guilar ’ s es tat e ; an d Ag uilar ’ s mother , Na nette Mojica.2 BACKGROUND Seeking to recover d amages for the death of Aguilar, a p pellees filed suit against th e Ci ty, the restaurant where Aguilar was killed, and th e manuf acturer and seller of the duty belt worn by the police officer involved in the incident. 2 The following narrativ e der ives from the factual allega tions in appellees ’ original petition

. 3

The mornin g of January 3, 2020, Austin Poli ce Department (APD) received a

“ suspicious person ” call related to a man

— later determined to be Woodburn

— ins ide Benn u Coffee disturbing cust omers, holding a large rock, and t hre atening customers. After the call to
t h e poli ce, Woodburn attacked a Bennu customer with a large object and was eventually wrestled to the ground and restrained by multiple Bennu customers. Off icer Patrick Spradlin wa s the first APD officer to respond to the call and e ntered Bennu , approached Woodbu rn, and directed the Bennu customers restraining Woodburn to release him. The customers comp lied with Officer Spradlin ’ s order.

Officer Spra dl in attempted to restrain Woodburn by placing him into handcuffs.
However , during the exchange, Offi c er Spradlin ’ s duty belt came loose , and t he o ff i cer put his handcuffs down and , with both hands, attempted to resecure his duty belt . While Officer Spradlin attemp ted to res ecure his duty belt, Woodburn stood up and left the coffee shop

. Upon exiti ng Ben n u, Woodbur n e ntered an adjacent restaurant (Freebir ds) through a door that its

2 For reaso ns unexplai ned i n the record, appell ees did not file suit against Woodburn.

3 In their response to the City ’ s plea to the jurisdiction, appel lees represented that they woul d be filing an amended petit ion containi n g further factual allegations gleaned from recent document s p roduced by the Ci ty, including the results o f an internal investigation of the in cident

. Their response cited some o f the further details

. However, the record contains no amended p eti t ion , and we therefore cite the factual allegations contained in app ellees ’ live (origin al) petition

.3

general manager , Ryan Bramlett, had left unlocked , despite earlier noticing Woodburn acting strangely and erra tic ally while peering through the restaurant ’ s door. Bramle tt ha d initially locked the door behind him when he first arrived at work at 7:50 a .m. to help Freeb irds employee Aguilar prepare the business for the day but, shortly thereafter , Bramlett unlocked the door to allow a knife

- sharpening vendor access to th e busine ss . The k n if e vendor placed the freshly sharpened knives on the counter and was accompanied to the door by Bra m let t , who did not lock th e door after the vendor left

. Moments later Woodburn entered through the unlocked door, picked up a knife from the cou nter, and s ta b bed Aguilar multiple times. A guilar died from the stab wounds. A few days after the incident, APD ch ief Br ian Manley state d that an officer ’ s duty belt coming loose “ is something that we do not expect to have happened. We expect
to prov ide our o ffi c e rs with the best equipment, and we expect our equipment to perform appropriately. ” Appe llees allege that the failur e of Officer Spradlin ’ s duty be lt to have

“ keepers ” 4 or other “ in tegral safety components , ” the duty be lt ’ s failure to comply with APD pol i cy, and the duty bel t ’ s use or mis use proximately caused Aguilar ’ s death.

D I SCUSS ION The City, as a political subdivision of the Sta te, is immune from suit and liability unless the State consents. See City of Wataug a v. Gordon , 434 S.W.3d 5 86, 589 ( Tex . 201 4)

. Governmental im munity defeats a court ’ s jurisdiction

. Dallas Area Rapid Tr ansit v. Whitley ,

4 Appellees allege that “keepers” are “safety devices intended to prevent gun belts from failing (falling off) at critica l moments.” Wikipedia expla ins that kee pers “wrap around the duty belt and trouser belt, ensuring that the belt stays in place, even wh en the officer is taking something from the belt or engaging in an altercation with a suspect.” Police Duty Belt , Wikip ed ia , https://en.wikipedia. org / wiki/Pol ice

_ duty_belt (last visited Jan. 31, 2023 )

.4

104 S.W.3d 540, 542 (Tex. 200 3) . Where a government entity challenges jurisdiction on the basis of immunity, the pl aintiff must affirmativel y demonst rate the court ’ s jur isdictio n by alleging a valid waiver of immunity. Ry der Integrated Logistics, Inc. v . Fayette County , 453 S.W.3d 922, 927 (Tex. 2015) . To determine if the plaintiff has met that burden, we conside r th e facts alleged by the p l aintiff a nd, to t he extent it is rele vant to the jurisdictional issue, the evidence submitted b y 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 whethe r the plea din gs c ontain enough facts to demonstrate jurisdiction. See Texas Dep ’ t of Parks & Wildlife

v. Miranda , 133 S.W.3d 217, 22 6 (Tex. 2004)

. We construe the pleadings liberally in favor of the plaintiffs an d look to the ple aders ’ intent. Id. If t he pleadings do n ot contain sufficient facts
to affirmatively demonstrate the trial court ’ s jurisdiction but do not affirmatively demonstrate incura ble defects in jurisdiction, th e issue is one of pleading sufficie ncy and the plaintiffs should be afforded the opportuni ty t o amend. Id. at 226

– 27 . If the pleadings affirmatively negate the exi stence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to ame nd

. Id. at 227

.

The asserted source of w aiver in this cas e is the Tex as Tort Claims Act (TTCA) , which waives governmental immunity in a limi ted number of circumstances including, relevant here, “ p ersonal injury and death so caused by a condition or use o f tan gi ble personal or real property. ” Se e Tex. Civ. Pr ac. & Rem. Code § 101.021

. T hat is, the plaintiff must show that personal inju ry or death was “ proximately caused by the condition or use of tan gible pro perty ”
at issue. Dallas C

nt y. Mental Health & M

ental Retardation v. Bossley , 968 S.W.2d 339, 343 (Tex . 199 8)

.5 Proximate cause, in turn, requ ires both cause in fact and foreseeability. R yder , 45 3 S.W.3d at 929 . F or a condition or use of property to b e a cause i n fact, the condition or use

mu st “ se rve as a substantial factor in c ausing t he injury and wi tho ut w hich the injury wo uld not have occurred. ” Id. Further, t he condit ion or use “ must have actually ca used the injury. ” City of Dallas v. Sanchez , 494 S.W.3d 722, 726 (Tex. 2016) (p er cur iam) (qu oting Dallas County v. Posey , 290 S.W.3 d 869, 872 (Tex. 20 09) ). Causatio n is lacking if the tangib le 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 “ simpl y hinders or delays treatment . . . does not co nstitute a p r ox imat e cause of an in

jury, ” Sanchez , 494 S.W.3d at 726

. T o constitute cause in fact, the alleged negligent a ct or omission must “ justify the conclu sion that [the] injury was the natural and prob able result thereof. ” Do e v. Boys Club of Grea ter Dall., In c. , 90 7 S.W .2d 472, 477 (Tex. 1995) ( citation s omitted).

Foreseeability requires that a person of ordinary intelligence should have anticipated the danger cre ated by a neg ligent act or omission. Id. The danger of injury is fore seeable if i ts “ general c ha ract er might reasonably have been an ticipated . . . and the inju red party should be so s ituated with relation to the wrongful act that injury to him or to one similarly si tua ted might reasonably have been foreseen. ” Ry de r , 453 S.W.3d at 929

. The questi on of foreseeability, and proximate cause generally, involves a practical inquiry base d on “ co mmon
expe rience applied to human conduct. ” Doe , 907 S.W.2 d at 477 . It asks wheth er the injury

“ might reasonably have been contemplated ” as a result of the defen da nt ’ s conduct , id. , or

— by extension to claims under the TTCA

— as a result of the condition or use of tangible property , s ee Tex. Civ. Prac. & Rem. Code § 101.02 1

. Pro ximate cause is generally a question for the factfinder unles s reasonable mi nds could n ot d iffer about whether it ex ists , and thus we must6

determine whether the pleaded facts , taken as true, create a fact question regarding the causal rela tionship between the condition or use o f property and the injury or death. See Ryder , 453 S. W .3d at 927, 92 9 ( noting that we review trial court ’ s ruling on plea to j urisdiction de novo)

. Viewing the facts alleged in favor of appellees , as we must , we con clud e that there is no fact question on eit her foresee a bility 5 o r cause in fa ct. 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.
S ee Ry de r , 453 S.W.3d at 929 ; Do e , 907 S.W .2d at 47 7

. In st ead, Aguil ar ’ s death was preceded by an alleged extraordinary sequence of events too causally attenuated from t he all eged use or condition of the duty be lt to demonstrate anything more tha n the duty belt ’ s mere furnishment of

a conditi on t hat made Aguil ar ’ s death p ossible : o n January 3 , 2020, Officer Spradlin ’ s duty belt either lacked an “ integral s afety component ” such as keepers or was not in compliance with APD policy when the officer wore it to res pond to a repo rt of a man t hreateni ng B ennu cust omers w ith
a weapon . O fficer Spradlin arrived on the s cene and entered the coffee shop

. He ordered the
customers who had wrestled Woodburn t o the fl oor and were holding him down t o release him

. Officer Spradl in began ha ndcuff ing W oodburn bu t c e ased doing so w he n his duty belt came loose , instead attempting to resecure his duty belt

. Woodburn exited the coffee shop and entere d the adjacent Freebirds through an unlocked door before regular busi ness hours, pick ed up from

5 Although in it s brie f the City focuses on the cause

- in

- fact prong of proximate cause, we no netheless may re view whether the alleged fact s create a fact issue on the for eseeability prong because th a t su b sidiary qu estion is fair ly included within the Ci ty ’ s issue state ment , “ Wa s Mr. Aguil ar ’ s death proximately caused by a condition or use of the p olice officer ’ s duty belt? ” See City of Austin v. Anam , 623 S.W.3d 15, 19 (T ex. App.

— Austin 2020, no pet

. )

. F urt hermo re , jurisdiction al issues r elating to s ov ereign immunity may be ra ised by a c ourt sua sponte. See id.7

a counter a recently d epo s ited and newly sh arpen ed kni fe, and repeatedly stabb ed to death
Fre ebirds employee A gu ilar

.

Even assuming that the duty belt lacked an “ integral safety componen t ” or was not in compliance with APD policy, t he cases appellees cite involving tan gibl e pe rsonal pr ope rty th at lacked integral safety comp onents are distingui shable because the inj ur ies therein were the r easonably fore se eable and direct consequence of the failure to use or provide such s afety components

. See, e.g

. , Ro binson v. Central Tex. MHM R C tr. , 780 S.W.2d 1 69, 171 (Tex. 1989) ( pla intiff known to have epi lepsy drowned after me ntal health center allowed him to swim

w ithout life preserver ); Overton Mem ’ l Hosp. v. McGuire , 518 S.W.2d 528, 529 (Tex. 1975) ( pla intiff i njured from falling ou t of hospital be d that l acked bed rails ) ; see also Michael v.
Travis Cnt

y. Hous. Auth. , 995 S.W.2d 909, (Tex. App.

— Austin 1999, no pet.) (p asserby injured by pit bu ll s that escaped through hole in fence )

. The same cannot be said for t he facts alleged here

. A lthough t he deter mi nation of proximate cause is necessarily fact specific , w e believe that the facts alleged here are analogous to the cases cited by th e City , wherein this Court and other s have determined that when inj uries are too a ttenuated

— e ither temp orally, phys ically , or causally

— from the alleged c o ndition or use of tang ible personal property, the property ’ s condition or use is not the proximate cause as a matter of law. See , e.g. , Sanc hez , 494 S.W.3d
at 727 ( mal f

unctioning 911 system that contribut ed to miside ntifie d apartment number was no t proximate cause of overdo se 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 fron t of tr uck on freeway h alf mile away ) ; City of A usti n v. Anam , 623 S.W.3d 15, 19 (Tex. App.

— Austin 2020, no pet.) ( off

icer ’ s failure to fasten seatbelt on hand cuffed suspect in vehicle was not proximate8

cause of suspect ’ s shooting himself w ith gun in his p o ssession ); Pakdimounivong v . City of Arlington , 219 S.W .3d 401, 412 (Tex. App

. — Fort Worth 2006, pet. denied ) ( improper application of handcuffs and leg restrain ts on suspect being transported in police vehicle was
not proximate cause of hi s kicking out ca r ’ s window and throwing himself throu gh window

a nd o nto 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 ins tead of continuing to handcuff Woodburn o r otherwise a ttem pt t o apprehend hi m . In o ur
recent Ana m case, t his Court determined that there was no proximate cause under alleged facts wit h ana logous causal attenuation

. See Anam , 623 S.W.3d at 15

. In that case, the p laintiffs alleged that a police officer was n egl i gent in fail ing to refasten the seatbelt of a n arrestee after discovering that his seatbelt had come undone

. See id. at 17

. Ha ving undone his seatbelt, the
arrestee was able to

— and did

— access a handgun in his w aistband and use i t to kill himself

. See id

. T his Court determined that the plaintiffs had no t alle ged any facts demonstrating foreseeability

— “ i .e., that a person of ordinary intelligence should have anticipated that the fai lure to refaste n the seatbelt of a h andcuffed oc cupant of the vehicle woul d cr eate 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 proper ly would ca use injury to the arrestee.
I d. F urthermor e, this Court conc lude d that the p la intiffs could not allege any facts demonstrating foreseeability because the “ reasonably an t icipated danger or harm created from an unfastened

se atbelt is not sui cide by gunshot wound to the head ” but injury or d eath resu lting from a v ehic le

c ollision or abrupt stop. See id.9 S imilarly here, the reasonably anticipated danger or harm from a n officer ’ s duty belt fall ing off is the o fficer ’ s resulting inability to quickly grab his gun , taser , or other equipm ent i f needed or , in certain c ircu msta nces , a suspect ’ s opportunity to grab such items

. But one would not reasonabl y 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 negl igent decision to re secure his duty belt instead of attempting to app r eh end a dangerous sus pect , the TTCA waives immunity only when the use or condition of the personal property at issue “ actual ly caused the injury. ” See Sanchez , 494 S.W.3d at 726

. “ [T]hat some [personal] property is m erely involved [in the injury] is not enough. ” Texas Dep ’ t of Crim. Justi ce v. Miller , 51 S.W.3d 583, 588 (Tex . 2001) ( holding that hosp ital ’ s alleged use of medications on patient, which allegedly “ masked ” his symptoms of

men ingitis, did not actually cause patient ’ s death ; rather, his death was caused by alleged fai lure to tim ely diagnose him ) (citing Bossley , 96 8 S.W.2d at 342 )

.

We conclude that the real substance of the plaintiffs ’ c laim is that Office r Spradlin made a neglig ent decision or failed to act as a reasonable officer would in the same circumstances , and we thus f ollow those cases finding no waiver o f immunit y when the pla intiff ’ s injuries are too causally attenuated from the alleged but

- for cause. See, e. g. , Bossley , 968 S.W.2d at 343 ( “ The real subst ance of plaintiffs ’ comp la int is that [Bossley ’ s] deat h was

cau sed, not by the condition or use of p roperty, but by the failure of Hillside ’ s staff to restrain him once they learn ed he was still suicid al. ” ); Anam , 623 S.W.3d at 15 ( “ [T]he real substance of the Anams ’ claim is that Za char y ’ s suicide was ca used not by t he failure to refast en his sea tbelt or the con dition of the seatbelt but by the fact that Wall failed to detect and remove Zachary ’ s10

gun before putting him in the patrol car. ” ) ; Pakdimounivong , 219 S.W.3d at 412 ( impr op er application of leg re stra in ts and ha ndcuffs did not cause injury but “ at most cr eated a conditio n, 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 plai ntiff ’ s injuries “ simp ly may be too

a ttenuated to c onstitute legal cause ” )

.

G uided by the abo ve - cited precedents, w e conclude that the use or condition of Officer Spradlin ’ s duty belt is too c ausally attenuated from Woodburn ’ s stab b ing of A guilar
to constitute a proximate cause of Aguilar ’ s death

. See Bossley , 968 S.W.2d at 3 43 ; A nam , 623 S.W.3 d at 19

. While Aguilar ’ s death was tragic , w e cannot agree with the trial cou rt ’ s determination that the pleaded facts create a fact issue concerning pr oximat e cause . Fur thermore, we con clud e that th e alleged fact s demonstrate incura ble d ef ects in jurisdic tion , conclusively negating the existence of jurisdiction, and th u s plaintiffs need not be afforded an
oppor tunity to amend their petition. 6 See Miranda , 13 3 S.W.3d at 226

– 27

. We accor ding ly sustai n the City ’ s f

irst issue. 7

6 We so conclude despite the a lleged additional facts appe llees cite in their response to the City ’ s plea to the jurisd iction, which facts they contend derive from recent document production related to the C ity ’ s int ern al inves tigation of the incident

. The additional alleged facts include (1) a more exact timeline of the events prece ding Aguilar ’ s death , indica ting that less th an three minu t es e l apsed fr om the time Officer Spradlin ’ s duty bel t came loose to when Wo odburn was se en leaving Freebirds after stab bing Aguilar ; (2) Officer S pradlin ’ s admission s that (a) he knew he was not weari ng keepers or an APD

- appr oved duty belt but responded t o the call non etheless , despite knowing that his duty belt posed a sa fety co ncern, a nd (b ) he was distracted when h is belt fell off completely and thus did not attempt to stop Woodburn from leaving the coffee shop or give him any v erbal commands ; and (3) O f fice r Spradli n ’ s opinion that had he been wearing ke epers , his d uty belt would have stay ed put

. These facts do not change our conclusion that the causal relationship between the use or condition of the belt and Aguilar ’ s dea th is too attenuated.

7 Becau s e we have sus tained the City ’ s first issue, we need not address its second issue, in which it contends that it also e njoys governmental i mmunity under the so

- called “ public duty11 CONCLUSION Havi ng sustaine d the City ’ s first issue, we reve rs e the trial court ’ s order and render judgment granting the City ’ s plea to the jurisdic tion and dismissing appellees ’ claim s against the City.

__________ _________________________ _______ Thomas J. Baker , Justice Before Justices Baker, Triana, and K elly Dissenting Opini on by Justice Triana Reversed and Rendered Filed: February 10 , 2023

doctrine , ” which provides that g enerally a poli ce officer is not liable for f a ilin g to take action t o prevent or stop the commissi on of a crime

. See , e.g. , Munoz v. Cameron County , 725 S.W.2d 319, 321

– 22 (Tex. App.

— Corpus Christ i

- Edinburg 1986, no writ)

.