Moran v. Summers et al

Filing 25

ORDER DENYING 20 Motion for Leave to Designate Responsible Third Party. Signed by Judge Sam Sparks. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

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CUIb
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10

V

JOSE MORAN,
Plaintiff,
Case No. A-15-CA-769-SS

-vs-

TYLER SUMMERS
PFLUGERVILLE,

and THE CITY OF
Defendant.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically Tyler Summers and the City of Pflugerville's Opposed Motion for Leave to Designate
Responsible Third Party [#20]; and Plaintiff Jose Moran's Response [#24] thereto. Having reviewed
the documents, the relevant law, and the file as a whole, the Court now enters the following opinion
and orders.

Background
This is a civil rights action brought by Plaintiff Jose Moran, a diabetic, against Defendants

Tyler Summers and the City of Pflugerville (collectively, Defendants). Moran alleges the following
facts:

Summers, a Pflugerville police officer, arrested Moran for driving while intoxicated and

transported him to the Travis County jail. Summers was aware Moran was diabetic. When he
arrived at thejail, Moran underwent a basic medical evaluation. The Travis County jail medical staff
refused to admit Moran, concluding his high blood sugar levels required emergency medical

I

attention. Summers then drove Moran to Brackenridge Hospital and, rather than checking him into

the emergency room, dropped him off on the curb and removed his handcuffs. Moran, who was in
a confused and unsteady state, wandered away from the emergency room and was struck by a cement

truck in a hit-and-run accident. The truck driver was never identified.
Moran alleges violations of Title II ofthe Americans with Disabilities Act (ADA), 42 U.S.C.
§

12131, section 504 of the Rehabilitation Act, 29 U.S.C.

§

794, and 42 U.S.C.

§

1983. Moran

alternatively brought state law negligence claims against Seton Family of Hospitals d/b/a University
Medical Center Brackenridge, but these claims have been dismissed with prejudice.

See

Ord.

Dismissal [#131. Only the federal causes of action against Defendants remain.
On March 18, 2016, Defendants jointly filed the instant motion seeking to designate the
unidentified cement truck driver as a responsible third party pursuant to
CODE

§

TEx.

Civ. PRAC. & REM.

33.004. Moran opposes this motion on the grounds Texas' proportionate responsibility

scheme conflicts with federal law and thus may not be applied in this lawsuit.

Analysis
The Court finds it would be inappropriate to designate the unnamed cement truck driver as
a responsible third party pursuant to

§ 3 3.004

in this case.

Section 33.004 of the Texas Civil Practice and Remedies Code provides that a "defendant
may seek to designate a person as a responsible third party by filing a motion for leave to designate

that person as a responsible third party." A "responsible third party" is defined as:
[Amy person who is alleged to have caused or contributed to causing in any way the
harm for which recovery of damages is sought, whether by negligent act or omission,
by any defective or unreasonably dangerous product, by other conduct or activity that
violates an applicable legal standard, or by any combination of these.

-2-

TEX. Civ. PRAc.

& REM. CODE § 33.0 11(6). Once designated, a responsible third party is added to

the list of persons the trier of fact may consider for purposes of apportioning fault in "any action

based on tort." Id.

§

33.002, 33.003(a).' Designating a responsible third party can affect the

amount of a plaintiff's recovery because a defendant "is liable to a claimant only for the percentage

of damages found by the trier of fact equal to that defendant's percentage of responsibility with
respect to the.

. .

harm for which the damages are allowed." Id.

§

33.0 13(a).

Several district courts have concluded that the designation of a responsible third party under
does not conflict with the Federal Rules of Civil Procedure and is therefore permissible in

§ 3 3.004

diversity and federal question cases applying Texas substantive tort law.
Elecs. Corp.,

See, e.g., Eisenstadt v. Tel.

Civ. A No. 3:06-CV-1196-0, 2008 WL 4452999, at *1 (N.D. Tex. Sept. 30, 2008)

(diversity); Davis v.

Dali.

Cty.,No. 3 :07-CV-03 1 8-D, 2007 WL 2301585, at *2 (N.D. Tex. Aug. 10,

2007) (federal question). The same is not true for suits involving causes of action arising under
federal statutory law, such as the case at
In Mims v.

Dallas

bar.2

County, a Northern District court addressed the applicability of Texas'

proportionate liability scheme to claims brought under

§

1983. No. 3:-04-CV-2754-M, 2006 WL

Importantly, a responsible third party is not actually a "party" to the suit and "a finding of fault against the
TEX. CIV. PRAC. & REM. CODE § 33.004(i). "Further,
responsible third parties are no longer limited to those who are liable to plaintiff, whose identity is known, or who is not
even subject to the court's jurisdiction." Bueno v. Cott Beverages, Inc., No. Civ.A. SA04-CA24XR, 2005 WL 647026,
at *2 (W.D. Tex. 2005). According to one commentator, "[i]n Texas tort law, the 'responsible third party' is anything
but. He is not really a 'party,' and he is not really 'responsible.' He has but one reason to exist: that is, to allow a liable
defendant to avoid joint and several liability." David W. Holman, Responsible Third Parties, 46 S. TEX. L. REV. 869,
870 (2005).

person.. does not by itself impose liability on that person."
.

2

Separately, the Court is not convinced § 1983 claims or claims arising under the ADA or Rehabilitation Act
are "based in tort" for purposes of § 33.004. See JCWElects., Inc. v. Garza, 257 S.W.3d 701, 705 (Tex. 2008) ("Reading
the statute as a whole, section 33.003 reveals that a 'cause of action based on tort' includes negligence, products liability,
and any other conduct that violates an applicable legal standard, such as the tort aspect of an implied warranty.").
However, because the parties have not briefed the issue, the Court declines to resolve the dispute on this basis.

-3-

398177, at

*6

(N.D. Tex. Feb. 17,

2006).

Mims involved a civil rights action brought by three

former inmates of the Dallas County Jail alleging the defendants failed to provide adequate medical
care and treatment of mentally ill inmates in violation of the ADA, the Rehabilitation Act, and the

Fifth, Eighth and Fourteenth Amendments. Id. at *1. Dallas County sought to designate its contract

medical care provider, The University of Texas Medical Branch at Galveston (UTMB), as a
responsible third party under

§ 3 3.004.

Id.

Acknowledging that federal courts "have not hesitated to apply state laws, such as wrongful
death and survival statutes, to further the purposes of section 1983," the court found the Texas
proportionate responsibility scheme was not applicable because it would conflict with the policies
underlying civil rights litigationcompensation and deterrence.

Id. at

*6.

Permitting the

designation of a responsible third party would allow the joined defendants to avoid joint and several
liability for any wrongful conduct, which in turn would likely prevent the plaintiff from receiving
full compensation for their injuries. Such a result "would benefit the [defendants], the parties whose

conduct is regulated by 42 U.S.C.

§

1983, not plaintiffs, the parties protected by statute," and thus

would be "inconsistent with the Constitution and laws of the United States." Id. (citing 42 U.S.C.
§

1988).

The Court finds Mims persuasive. With respect to Moran's

§

1983 claims for violations of

his Fourteenth Amendment rights, permitting Defendants to designate the cement truck driver as a

responsible third

party

would be inconsistent with the purpose of civil rights litigation. Indeed,

because the cement truck driver has not been identified, designating him as a responsible third party

would necessarily reduce Moran's recovery by the percentage of fault attributed to the driver.
Allowing Defendants to avoid joint and several liability in this manner eliminates the likelihood

Moran could fully recover for his injuries and diminishes the deterrent of effect of

§

1983. These

outcomes are in direct conflict with the policies underlying federal civil rights claims. Further,
refusing to designate the cement truck driver as a responsible third party is consistent with the weight

of authority holding theories of comparative negligence and contribution inapplicable to federal
constitutional rights violations. See, e.g., McHugh v. Olympia Entm 't, 37 F. App'x 730,736-37 (6th
Cir. 2002); Hepburn v. Athelas Inst., Inc., 324 F. Supp. 2d 752, 759 (D. Md. 2004); Burge v. Parish
of St. Tammany, Civ. A.

No. 91-2321, 1995 WL 317125, at *3 (E.D. La. May 24, 1995).

The Court likewise finds it inappropriate to designate the unidentified cement truck driver
as a responsible third party with respect to Moran's claims for violation of the ADA and

Rehabilitation Act because doing so would be inconsistent with the purpose of federal antidiscrimination

lawsto

eliminate discrimination against individuals with disabilities and to

compensate for intentional discrimination. See, e.g., DelanoPyle v. Victoria Cty., 302 F.3 d 567,574
(5th Cir. 2002) ("The ADA is a federal anti-discrimination statute designed to provide a clear and

comprehensive national mandate for the elimination of discrimination against individuals with

disabilities." (internal citations and quotation marks

omitted)).3

Again, applying the Texas

proportionate liability scheme to these claims would very likely reduce the liability of Defendants,
which in turn would diminish the statutes' deterrent effect and reduce the likelihood Moran could
be made whole.

The court did not need to reach this issue in Mims because the defendants conceded that § 33.003 did not
apply to the statutory causes of action under the ADA and the Rehabilitation Act. Mims, 2006 WL 398177, at *5

-5-

Conclusion
The Court stops short of announcing a categorical rule Texas' proportionate liability scheme
is never applicable in federal question cases applying federal statutory law. However, for purposes

of Moran's civil rights claims, the Court finds it would inconsistent with federal law to permit
Defendants to invoke

§

33.004 to avoid joint and several liability and in turn avoid fully

compensating Moran for his injuries.
Accordingly,
IT IS ORDERED that Tyler Summers and the City of Pflugerville' s Opposed Motion

for Leave to Designate Responsible Third Party [#20] is DENIED.
A
SIGNED this the
day of April 2016.

J?

SAM SPARKS
UNITED STATES DISTRICT JUDGE

769 resp third party ord mns.frm