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City of Brownsville v. Alvarado3/30/1995
any of the questions submitted were ambiguous or misleading. The cause of death and the fact of suicide were never in doubt; jury was simply asked to identify who was responsible. Moreover, the Alvarados did not object to the specific wording of either Question 1 or Question 2, but only to the submission of Ricardo's negligence when they urged that the City alone was responsible. Under these circumstances, the submission of Question 2 was not harmful error. See Tex.R.App.P. 184(b).
The Alvarados' second claim of harmful error relates to the trial court's exclusion of evidence. The trial court excluded all of the following evidence that the Alvarados claim supported discrete grounds of negligence: that one of the jailers had a practice of unnecessarily isolating inmates; that jail officials had not responded adequately to a 1986 suicide attempt; that the jailers received inadequate training in suicide identification and CPR; that the jail should have had video cameras in the detention areas of the jail; and that the jail failed to meet state jail standards regarding potentially suicidal inmates, The trial court excluded all of this evidence on the grounds that it did not involve the condition or use of tangible personal property and so governmental immunity was not waived, see Tex.Civ.Prac. & REM. CODE § 101.021(2), or that it fell within the discretionary or police protection exemptions to the waiver of sovereign immunity in the Texas Tort Claims Act. Tex.Civ.Prac. & REM.CODE §§ 101.055(3), 101.056.' The trial court also excluded evidence that the two jailers did not attempt to resuscitate Ricardo on the grounds that there was no evidence that the failure to administer cardiopulmonary resuscitation was a proximate cause of Ricardo's death.
The court of appeals agreed with the Alvarados that exclusion of the evidence concerning the jailers' lack of training and Jailer Perez' policy of isolating inmates did involve the use of tangible personal property, namely, the door blocking the jailers' view of the cell block and the drunk tank itself. 865 S.W.2d at 158. The court also agreed that the jury should have been informed that the jailers failed to administer CPR because such evidence would have raised a fact issue as to whether the failure to administer CPR was a proximate cause of Ricardo's death. Id. Finally, the court of appeals agreed that the evidence concerning inadequate suicide identification and prevention training, failure to meet other jail standards, placement of the cameras, testimony concerning a 1986 suicide attempt, and Jailer Perez' employee evaluations was all admissible because it was incidental to police protection and raised an issue of negligent failure to implement policy, not the discretionary formulation of policy, which is protected under the Tort Claims Act. See Tex.Civ.Prac. & REM.CODE §§ 101.055, 101.056. The court then determined that because all of the evidence relating to negligent training and negligent screening was excluded, and because negligent training and screening were discrete grounds of recovery, the exclusion of the evidence was harmful.
The admission and exclusion of evidence is committed to the trial court's sound discretion. Gee v. Liberty Mut. Fire Ins. Co. 765 S.W.2d 394, 396 (Tex.1989). A person seeking to reverse a judgment based on evidentiary error need not prove that but for the error a different judgment would necessarily have been rendered, but only that the error probably resulted in an improper judgment. McCraw v. Maris, 828 S.W.2d 756, 758 (Tex.1992); King v. Skelly, 452 S.W.2d 691, 696 (Tex.1970). A successful challenge to evidentiary rulings usually requires the complaining party to show that the judgment turns on th
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