MUNICIPAL LAW UPDATE
By Amos Pettis - Associate

Texas Courts of Appeal 

Cherqui v. Westheimer Street Festival Corp., 116 S.W.3d 337 (Tex.App.--Houston [14th Dist.] 2003, no pet.)

Company hiring off-duty police officers not liable for their torts.

Police Officers were assigned by the Houston Police Department to work an extra job at a street festival. While providing security at the festival, the Officers allegedly caused the Plaintiff to fall and injure himself. The Plaintiff sued the Officers, the City of Houston, and the corporation that organized the event, but the trial court entered directed verdicts in favor of all Defendants. The Houston Court of Appeals affirmed the judgment. The Officers and the City enjoyed immunity as the Officers were enforcing a public law and acting as on-duty officers. Additionally, there was no evidence that the corporation controlled the Officers' conduct to give rise to vicarious liability.

Retzlaff v. Texas Dep't of Criminal Justice, 2003WL22999502 (Tex.App.--Houston [1st Dist.] 2003, no pet. h.)

Prison does not need to warn prisoner of razor wire on fence.

Plaintiff, an inmate, sued the TDCJ after he was injured by a razor wire barrier while playing ragball in the prison recreation yard. The trial court granted summary judgment in favor of the TDCJ, which was affirmed by the Houston Court of Appeals. While the facts of this case fall under an exception to the Texas Tort Claims Act, prison administrators owe no duty to inmates to place the razor wire in a safer location, warn of its presence, or otherwise protect prisoners from the razor wire.

City of San Antonio v. Butler, 2004WL119336 (Tex.App.--San Antonio 2004, no pet. h.)

City immune from claims for injuries caused by intoxicated spectator at Alamodome.

Plaintiff was attending a KISS concert at the Alamodome, which is owned and operated by the City of San Antonio, when a drunken patron seated in the level above the Plaintiff fell or jumped over the railing, landing on and injuring the Plaintiff. Plaintiff sued the City of San Antonio, among others, and the trial court denied the City's plea to the jurisdiction based on immunity. The San Antonio Court of Appeals reversed, holding that the City was immune from suit. The City's charter did not waive immunity; operation of a convention center is a governmental function; the patron's ingestion of alcohol was not a "use" of tangible personal property to waive immunity under the Texas Tort Claims Act; and the Plaintiff failed to plead a premises liability claim.

Fifth Circuit Court of Appeals 

Chiu v. Plano Indep. School Dist., 339 F.3d 273 (5th Cir. 2003), cert. dismissed , 124 S.Ct. 871.

Parents able to sue School for restraint of free speech.

Plaintiffs, parents of PISD students, sued the School District and two Administrators for violations of their 1st amendment rights after the School prohibited them from distributing materials criticizing proposed new math curriculum at a public meeting about the curriculum. The Fifth Circuit held that the Administrators were not entitled to qualified immunity because they engaged in viewpoint discrimination and the School's policy was an unconstitutional prior restraint on free speech.

p. Rosborough v. Management & Training Corp., 350 F.3d 459 (5th Cir. 2003)

Private prison management and officer are liable for constitutional violations.

Plaintiff was an inmate at the Bradshaw State Jail, a Texas prison owned and operated by Defendant MTC, a private corporation under contract with the State of Texas. A corrections officer employed by MTC allegedly slammed a door on Plaintiff's fingers, severing them, and the officer then ignored the Plaintiff's injuries. Plaintiff sued MTC and the officer for 8th amendment violations under sec. 1983 and for state-law negligence. The Fifth Circuit reversed the trial court's judgment of dismissal, holding that the Plaintiff had asserted proper causes of action. Since the private entity and its employees were performing traditional government functions, they are subject to potential liability under sec. 1983 for constitutional violations.

Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003)

Malicious prosecution is not a violation of the U.S. Constitution

Plaintiff was prosecuted and wrongfully convicted of arson based on perjured testimony and other misconduct from San Antonio police officers. After his conviction was overturned, he sued for malicious prosecution, asserting numerous constitutional violations under state and federal law. After a large jury verdict and judgment in the Plaintiff's favor, the Fifth Circuit reversed the judgment, holding that malicious conduct is not a violation of the U.S. Constitution.

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