Connie Rogge, Individually and as Heir of Richard Hollas Rogge, Richard Rogge, Individually and as Heir of Richard Hollas Rogge and Richard Rogge as Administrator of the Estate of Richard Hollas Rogge v. the City of Richmond, Texas

Citations: 506 S.W.3d 570; 2016 Tex. App. LEXIS 10640; 2016 WL 5481484Docket: 01-14-00866-CV

Court: Court of Appeals of Texas; September 29, 2016; Texas; State Appellate Court

Original Court Document: View Document

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On September 29, 2016, the Texas Court of Appeals for the First District issued an opinion in case No. 01-14-00866-CV involving Connie Rogge and Richard Rogge as appellants against the City of Richmond, Texas, as appellee. The Rogges sued the City following their son Richard Hollas Rogge's suicide in a jail cell, alleging negligence and wrongful death under the Texas Tort Claims Act after the City claimed governmental immunity. The trial court granted the City’s motion for summary judgment, determining that the Rogges’ claims did not meet the statutory waiver of immunity for death caused by a condition of real property.

The Rogges contended their son’s death resulted from a defective metal grate covering an air vent in the jail cell, arguing it was an unreasonable risk for self-harm. However, the court found no evidence that the grate was dangerous or that its condition contributed to the suicide. Richard Hollas Rogge had been arrested for DWI and was left unattended in a holding cell for approximately three hours before committing suicide. The case involved a series of legal maneuvers, including the removal of civil rights claims to federal court, where a take-nothing judgment was entered before remanding the state-law claims back to the district court.

The City further argued that the suicide was not caused by a tangible property condition and cited the discretionary-function exception of the Tort Claims Act. The Rogges attempted to counter this by emphasizing that their claims were based on the grate's condition rather than the design of the holding cell. Ultimately, the court concluded that it lacked subject-matter jurisdiction over the claims due to the applicability of governmental immunity, affirming the trial court's decision.

The trial court granted summary judgment favoring the City, leading to an appeal by the Rogges, who contended their lawsuit was erroneously dismissed on four grounds: (1) their son's death was due to the City's use of tangible personal property, (2) it resulted from a condition of tangible personal property, (3) the discretionary-function exception to governmental immunity did not apply, and (4) their premises defect claim was not considered in the summary judgment motion. 

Governmental immunity can defeat a trial court’s subject-matter jurisdiction and may be raised through a plea to the jurisdiction or a summary judgment motion. The determination of subject-matter jurisdiction is a legal question reviewed de novo. Plaintiffs must provide facts that affirmatively demonstrate jurisdiction, which are construed liberally in their favor. If jurisdictional facts are disputed, the trial court must consider relevant evidence and resolve doubts in favor of the nonmovant. The doctrine of governmental immunity protects political subdivisions from lawsuits unless the Legislature has waived this immunity, as specified in the Tort Claims Act, which allows for limited claims against the State and its subdivisions, including cities.

The Rogges alleged that a metal grate above a toilet in a holding cell constituted a premises defect, creating an unreasonable risk of harm. They claimed the City had actual knowledge of this defect, recognized it as dangerous, and was responsible for its creation through the design and use of the premises. They argued that the City breached its duty by failing to warn about or rectify the condition, which they assert led to their son’s suicide.

Allegations of negligence by the Rogges center on the provision of tangible personal property, specifically the metal grate on the ceiling, claimed to be inadequate, defective, and lacking necessary safety components. They also asserted that the holding cell and toilet were similarly inadequate and defective, in addition to the failure to provide proper attire for their son. However, the Rogges did not rely on these broader allegations in their appeal; instead, their arguments focused solely on the metal grate's condition and use as the basis for claims of wrongful death and survival, which they linked to their son's suicide.

To determine the jurisdictional question raised by the appeal, it is essential to classify the Rogges' cause of action under the Tort Claims Act, which distinguishes between negligence claims related to tangible personal property and those concerning premises defects. A claim cannot simultaneously be categorized as both. The Tort Claims Act imposes different standards based on whether the claim is rooted in the condition or use of tangible property or related to a premises defect. The characterization of a claim as a premises defect is a legal determination, and liability based on premises defects is linked to the governmental unit's duty of care, rather than employee actions.

Negligent activity refers to affirmative conduct causing injury, while premises liability pertains to the owner’s failure to ensure safety. The critical distinction lies in whether the injury resulted from the actual use or condition of the tangible property or from a condition of real property created by the property itself. Within this legal framework, "condition" is defined as a state of being, requiring allegations of defective or inadequate property, while "use" pertains to the application of property for a specific purpose.

To establish a 'use' of tangible personal property claim under the Tort Claims Act, the injury must occur at the same time as the property use, directly linking the use to the injury. Merely providing or allowing access to tangible personal property does not constitute 'use' as defined in section 101.021(2). Distinctions exist between non-use and situations where a governmental entity provides equipment that lacks essential safety features. The crux of the determination lies in whether the property’s actual use or its condition caused the injury or created a dangerous situation akin to a premises defect.

The Rogges reference Retzlaff v. Texas Department of Criminal Justice, where a prisoner fell into a razor-wire fence, and the court recognized this as a use of property, waiving immunity under the Tort Claims Act. However, the court finds insufficient factual support for the Rogges’ claim that the City 'used' the grate in the holding cell for escape prevention. Testimony presented focused on ventilation and suicide risk, not escape prevention, thus failing to establish a comparable case.

The Rogges also cite Martinez v. City of Brownsville, where an inmate committed suicide using a shirt tied to prison bars; the court held the governmental unit had improperly used the property by failing to prevent the suicide. Although similar to this case, the current court declines to follow Martinez, as it contradicts later Supreme Court rulings clarifying that a governmental unit does not 'use' property just by allowing its use by others. This principle is reinforced by cases where immunity was not waived when individuals used items (like suspenders or telephone cords) to commit suicide in facilities.

The Rogges' claim has been classified as a premises-defect claim rather than one based on the use of tangible personal property. Liability does not arise from any active conduct by the City’s employees but rather from the duty of care owed to individuals in the police station’s holding cell. Consequently, the Rogges’ assertions that their son's death resulted from the City’s use of tangible personal property have been overruled. The claim is fundamentally based on a premises defect, and the City’s motion for summary judgment effectively addressed the immunity defense related to the alleged lack of a defect in tangible property.

In their second issue, the Rogges argue that the trial court incorrectly dismissed their case, asserting that governmental immunity was waived due to the condition of a metal grate, which they claim caused their son’s death. For immunity to be waived based on property condition, there must be a clear link between the property's condition and the injury, not just incidental involvement. The Rogges contend that the ventilation holes in the metal grate were excessively large and lacked an essential safety feature. They reference an architect's deposition suggesting that smaller ventilation holes could mitigate suicide risks; however, the architect did not affirm that the grate lacked an integral safety component. Furthermore, the architect refrained from commenting on the appropriateness of detaining the individual without clothing, indicating a lack of information. The evidence does not demonstrate that the grate was inherently dangerous for its intended use, nor does it establish that its condition directly caused the injury. Thus, the claims regarding the grate's condition do not support a waiver of governmental immunity.

The dissenting opinion indicates that the Rogges should be allowed to replead to address a jurisdictional defect. However, the pleadings have already been amended in response to previous jurisdictional challenges, and the Rogges have not proposed how they would further amend their pleadings. For a defect to warrant a complaint, it must pose a hazard during the intended use of the property. Even if the Rogges amended their pleadings to assert that the metal grate was meant to prevent inmate escape, the alleged defects—large holes and lack of mesh—would not have caused the injury. Similarly, challenging the toilet's placement as a defect does not demonstrate it posed a hazard in its intended use. Allegations that various factors, including the metal grate and toilet placement, created a premises defect do not establish a link between a dangerous condition and the cause of the inmate's suicide. Without suggestions for curing the pleadings, a remand would be futile. Consequently, the court concludes that the City's immunity was not waived due to a defective property condition, overruling the Rogges' second issue. As the governmental immunity has not been waived under the Tort Claims Act, it is unnecessary to address the Rogges’ third issue related to the discretionary-function exception. The trial court's judgment is affirmed.