      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-03-00541-CV



     Rosie Vanarsdale, Individually and as Representative of the Estate of Kadrian T.
                    Vanarsdale, and Vinson Vanarsdale, Appellants

                                                v.

                         City of Killeen and Andrew Pence, Appellees




      FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
         NO. 185,859-C, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This appeal arises from an attempted arrest that culminated with City of Killeen

police sergeant Andrew Pence shooting and killing Kadrian T. Vanarsdale. The district court granted

appellees’ motions for summary judgment based on their immunity from the negligence claims made

by Kadrian’s parents, Vinson Vanarsdale and Rosie Vanarsdale, individually and as representatives

of Kadrian T. Vanarsdale’s estate. The Vanarsdales appeal the summary judgment regarding four

of their claims. They contend that their claims against the City should survive the summary-

judgment motion because they raise issues of negligent implementation of policy, not negligent

formulation of policy. They contend that their claims are not defeated by the argument that Pence’s

killing of Kadrian T. Vanarsdale was an intentional act. Finally, they claim that, because the sole
basis for the summary judgment favoring Pence is that the court granted the City’s motion for

summary judgment, the judgment favoring Pence should be reversed when the summary judgment

favoring the City is reversed. We find that the City’s alleged failures to maintain its officers’

equipment, implement or enforce City policy concerning provision and maintenance of equipment,

and supervise its officers to ensure compliance with City policy do not bring Pence’s actions within

the scope of a waiver of immunity. Accordingly, we affirm the judgment.


                                         BACKGROUND

               While attempting to arrest Kadrian T. Vanarsdale, Pence used pepper spray to try to

subdue him. Appellants contend that the spray malfunctioned, rendering Kadrian T. Vanarsdale

“blinded and delirious” instead of subdued. They insist that Vanarsdale’s violent response and the

malfunctioning spray caused Pence to escalate abruptly to the use of deadly force. Pence shot and

killed Kadrian T. Vanarsdale.

               Appellants sued, alleging that many negligent acts and omissions caused the clearly

foreseeable but unnecessary escalation of force that led Pence to shoot and kill Kadrian T.

Vanarsdale. They contended that the pepper spray canister was not maintained properly, that Pence

knew that his fellow officers had experienced trouble with the canisters, and that Pence never tested

the canister he used against Kadrian T. Vanarsdale.

               The City and Pence filed several motions for summary judgment. The court

eventually granted summary judgment against all of appellants’ claims. The motions relevant to this

appeal are the City’s third motion and Pence’s second motion. The City contended that it is immune

because the shooting was an intentional tort; the legislature expressly excluded from the waiver of



                                                 2
sovereign immunity any claim arising from an intentional tort. See Tex. Civ. Prac. & Rem. Code

Ann. § 101.057(2) (West 1997). The City alternatively contended that appellants’ claims did not fall

within the legislature’s waiver of immunity for death resulting from the condition of or use of

tangible personal property. See id. § 101.021(2) (West 1997). The district court granted the City’s

motion without stating its basis. Pence asserted that a summary judgment favoring the City would

bar any action involving the same subject matter against him. See Act of May 17, 1985, 69th Leg.,

R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3305 (“A judgment in an action or a settlement of a

claim under this chapter bars any action involving the same subject matter by the claimant against

the employee of the governmental unit whose act or omission gave rise to the claim.”) (amended

2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (West Supp. 2004)).1 Having

granted summary judgment on all claims against the City, the district court granted summary

judgment on the claims against Pence.


                              DISCUSSION AND CONCLUSION

               Appellants contend that the district court erred by granting summary judgment

because the City acted negligently. They assert that, because the summary judgment favoring Pence

is entirely dependent on the summary judgment favoring the City, we must reverse the judgment for

Pence after we reverse the judgment for the City.

               Because the propriety of a summary judgment is a question of law, we review the trial

court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Texas Dep’t


       1
          The former provision applies to these summary judgments granted in May 2003. The 2003
amendment was effective September 1, 2003. See Act of June 2, 2003, 78th Leg., R.S., ch. 204,
§ 11.05, 2003 Tex. Gen. Laws 847, 886.

                                                 3
of Ins. v. American Home Assurance Co., 998 S.W.2d 344, 347 (Tex. App.—Austin 1999, no pet.).

The standards for reviewing a motion for summary judgment are well established: (1) the movant

has the burden of showing that no genuine issue of material fact exists and that it is entitled to

judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding

summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every

reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its

favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see also Tex. R. Civ.

P. 166a(c).

                Generally, a Texas city has sovereign immunity from suit unless immunity has been

waived by the legislature. See Texas Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d

849, 853-54 (Tex. 2002); see also Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(B) (city is

governmental unit). The legislature has waived sovereign immunity for deaths caused by “a

condition or use of tangible personal or real property” to the extent that a private person would be

liable. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2). There are exceptions to the waiver of

liability. See id. § 101.055(3) (West 1997) (chapter “does not apply to a claim arising from . . . the

failure to provide or the method of providing police or fire protection”); id. § 101.057(2) (chapter

does not apply to claim “arising out of . . . intentional tort”).

                This appeal concerns paragraphs 6, 8, 9, and 10 of section VII of appellants’ fourth

amended petition in which they allege that the City failed to furnish its police officers with properly

functioning pepper spray canisters and that the City failed to act or to implement or enforce a City




                                                    4
policy.2 Appellants contend that these failures led to the unnecessary escalation of force and the

clearly foreseeable shooting of Kadrian T. Vanarsdale.


       2
         The relevant paragraphs allege that the City was “wrongful, neglectful, careless, and/or
negligent” in the following ways:

            (6) failing to properly maintain and inspect its OC canisters (pepper spray) to
                [e]nsure that they functioned properly when it knew that said canisters had
                malfunctioned, prior to July 16, 2000, and knew or should have known that
                the failure to properly maintain the OC canisters would impede/impair its
                police officers, including Andrew Pence, in the performance of their job
                duties, which included, among other things, the proper application of the
                use of force continuum as found in the departmental policy to restrain and
                even detain an individual like Kadrian T. Vanarsdale, while performing
                their duties as police officers with the City of Killeen Police Department.
                Said failure to maintain and/or inspect the functioning of the OC canisters
                resulted in an unnecessary escalation of force along the use of force
                continuum, which resulted in the unnecessary and unjustified use of force
                that ultimately resulted in the wrongful death of Kadrian T. Vanarsdale;
                ....

            (8) failing to furnish its police officers with proper functioning OC canisters,
                when it knew or upon reasonable inspection should have known that the
                canisters did not and were not functioning properly. Said failure resulted
                in unnecessary, unjustified and unwarranted escalation of force, which
                resulted in the wrongful death of Kadrian T. Vanarsdale;

           (9) failing to enforce departmental policies, which required that all department
               equipment issued to employees, including Andrew Pence, shall be
               maintained in proper order. Said failure was a proximate cause of the
               unnecessary escalation of force, which resulted in the clearly foreseeable
               shooting death of Kadrian T. Vanarsdale; and

           (10) The City of Killeen’s Departmental Policy required that all department
                equipment issued to employees shall be maintained in proper order, despite
                said policy and knowledge that the OC canisters were malfunctioning prior
                to July 16, 2000, the City of Killeen failed to properly supervise its
                employees, including Andrew Pence to ensure that its employees were
                complying with the policy to maintain its equipment, which included the
                OC canisters in proper order. Said failure was a proximate cause of the
                occurrence in question, in that it led to an unnecessary escalation of force
                and the unnecessary and clearly foreseeable shooting death of Kadrian T.
                Vanarsdale.

                                                  5
                By their second issue, appellants contend that the City waived its immunity by

committing the failures described in paragraphs 6, 8, 9, and 10. They contend that any intentional

act by Pence in shooting Kadrian T. Vanarsdale was only the final link in the causal chain between

the City’s negligence and Kadrian T. Vanarsdale’s death; thus, they argue, the City cannot bring this

cause within the exception to the immunity waiver for claims arising from intentional torts. See Tex.

Civ. Prac. & Rem. Code Ann. § 101.057(2).

                We need not resolve this issue, as we hold that the summary judgment stands whether

or not Pence committed an intentional tort. The City claimed that the waiver of immunity for death

under the Tort Claims Act does not include the failures to act alleged here because they do not

involve the condition of or use of tangible personal property. See Tex. Civ. Prac. & Rem. Code Ann.

§ 101.021(2).

                In order to meet the requirements of section 101.021(2)’s waiver of immunity, the

personal injury or death must be caused by “a condition of or use of tangible personal or real

property.” The supreme court recently recognized the “difficulties in construing this section that are

intrinsic to its language and history.” San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 247 (Tex.

2004); see also Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996).

                Paragraphs 9 and 10 of appellants’ petition allege that the City failed to enforce its

policy that all officers’ equipment be kept in proper order, and that the City failed to supervise Pence

to ensure that he kept his pepper spray in proper order. These claims implicate the definition of

“tangible personal or real property.” See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2). The

supreme court has provided some guidance as to the meaning of these terms in determining that



                                                   6
claims involving a governmental unit’s negligent training and supervision of employees do not

involve the “condition or use of tangible personal or real property.” See Texas Dep’t of Pub. Safety

v. Petta, 44 S.W.3d 575, 580 (Tex. 2001).

               In Petta, a suit was brought against the Texas Department of Public Safety alleging

that the department failed to properly train one of its officers, resulting in his misconduct. Id. The

supreme court explained that supervision and training involve information and that information is

not tangible; rather it is “an abstract concept that lacks corporeal, physical, or palpable qualities.”

Id. Accordingly, the court held that the claims were not cognizable under the Tort Claims Act. See

Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2); Petta, 44 S.W.3d at 580-81. Similarly, appellants’

claims of negligent supervision and enforcement of policy here involve only the exchange of

information regarding the maintenance of pepper spray, not the use of the pepper spray itself.

Because the enforcement of policy and the act of supervision do not involve tangible property, the

City is entitled to immunity under the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann.

§ 101.021(2); Petta, 44 S.W.3d at 581.

               Appellants contended in paragraphs 6 and 8 of their petition that the City failed to

properly inspect and maintain the pepper spray given to Pence and failed to furnish Pence with a

properly functioning pepper spray. Specifically, the canisters required periodic shaking and testing

to remain effective. These claims hinge on whether the “condition of or use of” the pepper spray

caused the damage.

               Section 101.102(2) waives immunity when the “use” of tangible property causes

death, but not when death is caused by property’s “non-use.” In Clark, the supreme court held that



                                                  7
the hospital’s administration to a patient of an oral anti-psychotic medicine rather than an injectable

drug did not come within the use-of-tangible-property waiver. 923 S.W.2d at 585-56. The court

noted that the plaintiff’s claim was not that the oral drug caused any injury, but that the failure to use

the more effective injectable drug caused the patient to murder his wife. Id. at 585. The court

distinguished two cases in which it had previously held that immunity was waived for the reinjury

of a knee occurring after a football coach ordered a player to remove his knee brace, and for the

drowning of an epileptic hospital patient who was not given a life preserver despite the danger of a

seizure causing him to lose consciousness in the water. See id. at 584-85 (citing Lowe v. Texas Tech

Univ., 540 S.W.2d 297, 300 (Tex. 1976); Robinson v. Central Tex. Mental Health & Mental

Retardation Ctr., 780 S.W.2d 169, 171 (Tex. 1989)). The court limited the scope of Lowe and

Robinson “to claims in which a plaintiff alleges that a state actor has provided property that lacks

an integral safety component and that the lack of this integral component led to the plaintiff’s

injuries.” Clark, 923 S.W.2d at 585.

                The City’s failure to furnish Pence with an effective pepper spray is less like the

removed knee brace in Lowe, see 540 S.W.2d at 300, or the withheld life preserver in Robinson, see

780 S.W.2d at 171, and more like the ineffective medicine provided in Clark. See 923 S.W.2d at

585. It is a claim that the City should have provided a more effective pepper spray, not that the

condition of the pepper spray used by Pence caused the injury. Indeed, the Clark court indicated

that, in Lowe and Robinson, it would not have found waiver if the claim was that the state actors

should have provided another knee brace or life preserver that was more effective. Id. Similarly,

the claim that the City failed to properly inspect and maintain the pepper spray complains of the



                                                    8
City’s “non-use” of the property rather than its use. See Cowan, 128 S.W.3d at 246 (use means to

“put or bring into action or service; to employ for or apply to a given purpose”).

               Thus, we conclude that the City’s alleged failures to maintain equipment, fully

implement or enforce policies concerning the provision and maintenance of equipment, and

supervise its employees to ensure compliance with those policies do not bring its officer’s use of the

malfunctioning pepper spray canister within the waiver of sovereign immunity. We affirm the

summary judgment in favor of the City on this basis.

               Because immunity is not waived under the Tort Claims Act, we need not consider

appellants’ first issue contending that their complaints of negligent implementation of policy are not

subject to the exceptions to the waiver for the failure to provide or the method of providing police

protection. See Tex. Civ. Prac. & Rem. Code Ann. § 101.055(3).3

               By their third issue, appellants argue that the summary judgment favoring Pence must

fall when the judgment favoring the City falls. Pence’s summary judgment is based entirely on the

bar raised by the summary judgment favoring the City. See Act of June 2, 2003, 78th Leg., R.S., ch.

204, § 11.05, 2003 Tex. Gen. Laws 847, 886. Because we have affirmed the summary judgment

favoring the City, however, we also affirm the summary judgment favoring Pence. See § 1, 1985

Tex. Gen. Laws at 3305; Dallas County Mental Health & Mental Retardation v. Bossley, 968

S.W.2d 339, 343-44 (Tex. 1998).




       3
          We note that the City concedes on appeal that its motion for summary judgment on the
basis of section 101.055(3) did not apply to paragraphs 6, 8, 9, and 10 (although the motion itself
does not specify to which allegations that portion of the motion applies).

                                                  9
               Having resolved all necessary issues in favor of the judgment, we affirm the summary

judgment in all respects.




                                             Bea Ann Smith, Justice

Before Justices Kidd, B. A. Smith, and Pemberton

Affirmed

Filed: July 15, 2004




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