FILED 6/2/2014 4:36:23 PM Donna Kay McKinney Bexar County District Clerk Accepted By: Annabelle Kung CAUSE NO. 2014CI07249 VALERIE REDUS, INDIVIDUALLY, IN THE DISTRICT COURT AND ROBERT M. REDUS, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF ROBERT CAMERON REDUS, PLAINTIFFS, OF BEXAR COUNTY, TEXAS V. UNIVERSITY OF THE INCARNATE WORD AND CPL. CHRISTOPHER CARTER, DEFENDANTS. 150 TH JUDICIAL DISTRICT DEFENDANT UNIVERSITY OF THE INCARNATE WORD S ORIGINAL ANSWER, SPECIAL EXCEPTIONS & REQUEST FOR DISCLOSURE TO THE HONORABLE DISTRICT COURT JUDGE: COMES NOW Defendant UNIVERSITY OF THE INCARNATE WORD ( UIW ) and files this Original Answer, Special Exceptions & Requests for Disclosure to the Original Petition filed by Plaintiffs Valerie Redus, Individually, and Robert M. Redus, Individually and as Administrator of the Estate of Robert Cameron Redus (Robert Cameron Redus is referred to herein as Redus ) (collectively, Plaintiffs ), and in support thereof would respectfully show the Court the following: General Denial 1. Defendant UIW generally denies the allegations in Plaintiffs Original Petition. Facts 2. Defendant UIW is an incorporated charitable institution created and sponsored by the Sisters of Charity of the Incarnate Word, a Catholic order of nuns. The Sisters established the school in 1881, devoted to providing education without private gain. The UIW is a charitable institution under both Texas and Federal law. Page 1 of 15
3. The UIW main campus is located on both sides of Broadway, in San Antonio, Texas. The University campus is located largely north of Hildebrand Avenue, and largely west of Broadway. However, within the Broadway corridor, UIW maintains both administrative offices and student housing on both sides of Broadway including on the east side of Broadway at Broadway and Burr Road; staff and faculty parking on Thorman Road (just east of Broadway); and a motor pool near the grounds of the Witte Museum on the west side of Broadway and south side of Hildebrand. Additionally, UIW has campus locations all over Bexar County, Texas. These UIW properties are patrolled by police personnel commissioned by UIW, and licensed by the State of Texas. 4. Likewise, UIW peace officers patrol (i) St. Peter Prince of the Apostles School s two campuses located east of Broadway on Marcia Place and Arcadia Place, in Alamo Heights, Texas; (ii) St. Anthony Catholic School in the Monte Vista subdivision; (iii) St. Anthony Catholic High School located on McCullough; (iv) Incarnate Word High School and (v) the UIW Feik School of Pharmacy located on Hildebrand west of Highway 281, San Antonio, Texas. 5. UIW Police officers also provide assistance and mutual aid to the City of Alamo Heights, Texas Police Department and the City of San Antonio Police Department, by agreement between the agencies. 6. Defendant CPL. CHRISTOPHER CARTER ( CPL. CARTER ) is a commissioned peace officer as provided by TEX. EDUC. CODE ANN. 51.212 (West). He attended police cadet training school, holds a college degree in Criminal Justice, and holds a Master Peace Officer designation with TCLEOSE, the official certification authority for Texas. Master Peace Officers have over 2400 hours of classroom or other technical training. Page 2 of 15
UIW pleads the following facts on information and belief : 7. On the evening of December 5, 2013, CPL. CARTER reported for duty at approximately 9:50 p.m. at the UIW Police Department. CPL. CARTER was the ranking officer and supervisor for the night shift. 8. At all times relevant to this lawsuit, CPL. CARTER was on-duty and wearing his full department-issued distinctive blue police uniform, which has his name, badge and department patch affixed to the shirt. CPL. CARTER was also wearing his department-issued jacket, which has the same patches and badges as his uniform shirt. CPL. CARTER wore the official uniform known by and is conspicuous to all students at the University. 9. At all times relevant to this lawsuit, CPL. CARTER was wearing his duty belt which had his department-approved sidearm, one pair of handcuffs, an Armament Systems and Procedures ( ASP ) telescoping baton, magazine holder and radio. 10. At approximately 12:30 to 1:00 a.m. on the morning of Friday, December 6, 2013, CPL. CARTER left the University campus to get lunch for himself and another on-duty UIW campus peace officer. The outside temperature at this time was approximately 36 degrees, and there was a light drizzle. 11. CPL. CARTER drove in his marked Ford F-250 patrol unit (#902), which has 3- foot tall police markings, lights and sirens. He went to the Whataburger restaurant located at 3130 Broadway and Eleanor Ave. (south of the UIW campus). The Whataburger is one of the few restaurants in the vicinity of the UIW campus still open for business at that late hour, and the campus restaurants are all closed. 12. On the evening of December 5, 2013, and into the morning of December 6, 2013, Redus became intoxicated, as that term is defined by Texas law, with companions at the Brass Page 3 of 15
Monkey bar at 2702 N. St. Mary s St. the Bexar County Medical Examiner would later find that Redus had a blood alcohol content of as much as.186 and cannabinoids in his system. 1 13. At approximately 1:30 a.m. on the morning of Friday, December 6, 2013, despite being legally impaired and having a blood alcohol level of more than twice the legal limit, Redus drove his Ford Ranger pickup on the near freezing, rain slicked streets. Redus s drinking buddies did nothing to prevent his driving under the influence. 14. After placing and receiving his order from Whataburger, CPL. CARTER drove northbound on Broadway back towards the UIW campus. CPL. CARTER stopped at a red light in the left northbound lane of Broadway at the intersection of Broadway and Hildebrand, cattycorner to, and within yards of, the UIW campus main sign. When the light turned green, CPL. CARTER proceeded into the intersection, and the Ford Ranger pickup operated by Redus sped past him on the rain-slick street. CPL. CARTER observed Redus weave through construction barrels at the location, and hit the curb in front of the Wells Fargo Bank on the northeast corner of Broadway and Hildebrand. After Redus hit the curb, he overcorrected and swerved across the right lane and into the left, northbound lane. CPL. CARTER did not know Redus, nor did he recognize the vehicle, or know Redus to be a UIW student. He had a reasonable suspicion the driver of the Ford Ranger pickup was driving under the influence of alcohol and/or illegal drugs. 1 The Texas Penal Code provides the following definition: Intoxicated means: (A) (B) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or having an alcohol concentration of 0.08 or more. TEX. PENAL CODE ANN. 49.01 (West). Page 4 of 15
15. Based on his background, training and experience, the actions of Redus s vehicle and the time of the morning, CPL. CARTER reasonably suspected that the driver of the Ford Ranger pickup (Redus), was under the influence of alcohol, intoxicated and impaired while operating a motor vehicle. CPL. CARTER was concerned that the driver of the truck was a danger to himself and others, including students, faculty and employees of UIW who frequent the area, travel on Broadway, and cross Broadway to and from the campus, even at that time of night. 16. CPL. CARTER radioed the other on-duty UIW campus peace officer and gave instructions to contact the City of Alamo Heights, Texas Police Department regarding the suspected drunk driver. CPL. CARTER also described the vehicle to the other campus police officer. CPL. CARTER told the officer he was going to follow the suspect until officers from the Alamo Heights Police Department could take over the pursuit and assist to effectuate any subsequent stop, field sobriety tests and arrest if need be. 17. As Redus drove north on Broadway parallel to the UIW campus and past UIW administrative offices, Redus continued to weave in and out of his lane, and straddled the line between the right and left northbound lanes. 18. Continuing to follow Redus north on Broadway, CPL. CARTER activated his emergency red and blue lights to initiate a traffic stop of Redus at approximately Broadway and Harrigan Court. These lights are standard law enforcement issue emergency lighting and are bright LED devices designed to draw attention to the vehicle and its law enforcement or emergency function. 19. Rather than stopping, Redus sped up and turned into the neighborhood to the east, making a series of maneuvers into the apartment parking lot. Page 5 of 15
20. With CPL. CARTER in pursuit, Redus turned into the Tree House Apartments and swerved into a carport parking space facing an apartment building. CPL. CARTER stopped his patrol truck behind Redus s Ford Ranger pickup. 21. CPL. CARTER radioed what he believed to be his position to the other UIW campus peace officer, expecting that the Alamo Heights police would arrive soon. 22. Despite the red and blue flashing lights behind his truck, Redus jumped out of the truck and appeared as if he was going to run to the apartment building. 23. CPL. CARTER exited his vehicle, and yelled at Redus to stop. Redus then turned and faced CPL. CARTER, challenging him. 24. CPL. CARTER directed Redus to place his hands on the hood of the truck. Redus was informed he was stopped on suspicion of drunk driving. As CPL. CARTER, moved behind Redus to attempt to conduct a routine pat-down of the exterior of Redus s clothes, CPL. CARTER could smell the alcohol on Redus s breath. 25. Redus became belligerent and would not comply with CPL. CARTER s standard commands. Redus never allowed CPL. CARTER to complete the pat down to determine if Redus was armed. Redus never identified himself as a UIW student. 26. For safety reasons, CPL. CARTER grabbed Redus s wrists and attempted to pull his wrists together to handcuff him. Redus immediately resisted and refused to comply. CPL. CARTER commanded Redus not to resist and to calm down. Instead, Redus forcefully pushed back against CPL. CARTER and then pulled his arms to the front of his chest, striking the officer. With CPL. CARTER still attempting to hold onto Redus s wrists, Redus attempted to head-butt CPL. CARTER in the face a number of times. All the while, CPL. CARTER continued to inform Redus he was under arrest and directed him to stop resisting. Page 6 of 15
27. Redus became even more belligerent as CPL. CARTER continued to attempt to perform the pat down; Redus began making aggressive and bizarre statements, such as What s your f---ing problem, and began repeating in a loud, hostile and mocking tone such statements as: Are you going to rape me? and Are you going to rape me right now? 28. As he attempted to handcuff Redus, CPL. CARTER continually instructed Redus to stop resisting (this was stated at least eleven (11) times), and said to him, you are resisting arrest, but Redus continued to writhe, push and pull away from CPL. CARTER. 29. As Redus fought with him, CPL. CARTER could hear the other INCARNATE WORD campus peace officer radioing asking him to clarify his position, but CPL. CARTER could not respond because Redus was fighting him. 30. Redus turned to face CPL. CARTER, and with his back against the truck, he lifted a leg and kicked CPL. CARTER in the chest, pushing him backward. 31. While continuing to use verbal commands, CPL. CARTER drew his baton from his utility belt. Redus ignored CPL. CARTER s verbal commands. 32. Redus rushed CPL. CARTER, and wrestled the baton out of his hand. Redus then pushed and held CPL. CARTER against the wall of the apartment building and began beating him with the baton, hitting CPL. CARTER in the head and left arm, which was raised defensively to block the blows. 33. CPL. CARTER was able to use his left arm to knock the baton out of Redus s hand and he managed to place Redus in a headlock. Redus began to punch CPL. CARTER in the kidneys and body. Page 7 of 15
34. Because of the body blows, CPL. CARTER released Redus and moved several steps away from him drawing his pistol. CPL. CARTER continued to instruct the noncompliant and combative Redus to stop resisting. 35. CPL. CARTER withdrew his pistol and outstretched his left hand. He again commanded Redus to stop. Redus persisted in advancing toward CPL. CARTER, throwing punches at his face and head, and attempting to slap the officer s side of the head, and making belligerent statements like: You going to f-----g shoot me? and You re going to shoot me if I don t stop? 36. CPL. CARTER reacted by backing away, pleading for Redus to stop his violent and attacking behavior and making statements like: Stop! Stop! Stop! and Stop, or I will shoot you! 37. Redus again attempted to hit CPL. CARTER, making taunting statements like, You re going to shoot me if I don t stop? Redus continued to be the aggressor. 38. After approximately eight (8) minutes of intense struggle, and fearing that Redus was going to take his gun to shoot him, CPL. CARTER pleaded again for Redus to stop, and finally CPL. CARTER shouted: Get back! 39. CPL. CARTER was in fear for his life. 40. Redus charged at CPL. CARTER, his fist raised to strike down at him. CPL. CARTER fired in defense; but after the first shot, Redus continued to charge the officer. CPL. CARTER fired six (6) shots in the manner he was trained, until Redus fell to the ground and ceased to be a threat. Page 8 of 15
41. CPL. CARTER radioed the other UIW campus peace officer, relaying that shots had been fired and instructing that an ambulance be sent. He noted various landmarks to be relayed to the Alamo Heights police so that they could find his location. 42. Acts committed by Redus in CPL. CARTER s immediate presence include: a) DWI (TEX. PENAL CODE ANN. 49.04 (West) Class A Misdemeanor); b) Resisting Arrest (TEX. PENAL CODE ANN. 38.03 (West) a Felony of the Third Degree); c) Aggravated Assault (Assault of a Peace Officer) (TEX. PENAL CODE ANN. 22.02(b)(2)(B) (West) a Felony of the First Degree); and, d) Taking or Attempting to Take Weapon From Peace Officer (TEX. PENAL CODE ANN. 38.14 (West) a Felony of the Third Degree). 43. Toxicology results from Redus revealed (i) his blood alcohol content exceeded State limits by almost twice that allowable to drive, (ii) he was legally drunk and (iii) he had cannabinoids in his blood. 44. CPL. CARTER was a licensed uniformed commissioned Texas peace officer and policeman at all times relevant to Plaintiffs claims. His jurisdiction extends to the Treehouse Apartments and beyond. The State of Texas empowers him to stop a suspected law breaker anywhere in Bexar County and to place them under arrest. Response to Plaintiffs Allegations 45. Defendant UIW cannot admit or deny the allegations in Paragraph 4.1, except Defendant admits (based on Plaintiffs admissions) that on the evening of December 5, 2013, Redus decided to start drinking at the Brass Monkey bar at 2702 N. St. Mary s, and that at approximately 1:30 a.m. on Friday, December 6, he proceeded to drive his Ford Ranger pickup to the Tree House Apartments at 101 Arcadia Place in Alamo Heights. Page 9 of 15
46. Defendant admits the allegation in paragraph 4.2 that Redus was driving northward on Broadway when Cpl. Christopher J. Carter of the UIW Campus Police began following him. Carter was on-duty at the UIW campus, had gone to purchase lunch at Whataburger at 3130 Broadway, and was also driving northward on Broadway. 47. Defendant denies the allegation in paragraph 4.2 that CPL. CARTER did not attempt to stop Redus on Broadway. 48. Defendant denies the allegation in paragraph 4.2 that Redus arrived at the Tree House Apartments without incident and parked and locked his car. 49. Defendant denies the allegations in paragraph 4.3 that CPL. CARTER, without justification, initiated a verbal confrontation in the parking lot that became an altercation. 50. Defendant admits the allegation in paragraph 4.3 that CPL. CARTER ended the altercation by discharging six (6) bullets from his gun at the attacking Redus. 51. Defendant admits the allegation in paragraph 4.3 that five of the bullets struck Redus, killing him. 52. Defendant admits the allegation in paragraph 4.3 that two (2) of the shots, one (1) through his left eye and another in his back, were determined to be fatal by the Bexar County Medical Examiner. 53. Defendant denies the allegations in paragraph 4.3 that both were from close range and left stippling on Redus s face and back. 54. Defendant denies the allegations in paragraph 4.3 that Alamo Heights Police Officers found Redus with his back on the tops of his legs as if he had been in a kneeling position. Page 10 of 15
55. Defendant denies the allegations in paragraph 4.3 that the fatal entry wounds indicate that Redus was in submissive position when CPL. CARTER discharged his weapon for the last time. 56. Defendant denies the allegations in paragraph 4.3 that immediately after the Alamo Heights Police arrived, Carter called his attorney. 57. Defendant denies the allegations in paragraph 4.4 that neither Redus nor CPL. CARTER were on the UIW campus at any time during the events leading to Redus s death. 58. Defendant denies the allegations in paragraph 4.4 that at no time during these events was CPL. CARTER performing duties assigned to him by UIW that were consistent with its educational mission. 59. UIW generally denies all other allegations. Affirmative Defenses 60. Defendant UIW is not liable to Plaintiffs because Defendant UIW is immune from liability under TEX. EDUC. CODE ANN. 51.212 (West). 61. Defendant UIW is not liable to Plaintiffs because Defendant UIW is immune from liability by virtue of the fact that Defendant CPL. CARTER is a commissioned peace officer who is entitled to official immunity arising from the performance of (1) a discretionary act (2) performed in good faith (3) within the scope of the officer s authority. 62. Defendant UIW is not liable to Plaintiffs because Defendant UIW is immune from liability by virtue of the fact there is no respondeat superior or vicarious liability for the actions of CPL. CARTER, a peace officer who is entitled to official immunity commissioned by UIW. Page 11 of 15
63. Defendant UIW is not liable to Plaintiffs because decedent s negligence, gross negligence and intentional conduct proximately caused or contributed to the injury and death. 64. If Defendant UIW is found liable for damages, Defendant intends to seek a reduction of damages under the proportionate-responsibility statute. 65. Defendant CPL. CARTER has qualified immunity from liability because he acted under the objectively reasonable belief that his actions were within the scope of his official capacity and did not violate Plaintiff s clearly established rights, and therefore Defendant UIW cannot be held liable. 66. Defendant CPL. CARTER has qualified immunity from liability, and therefore Defendant UIW cannot be held liable, because CPL. CARTER acted at all times in accordance with TEX. EDUC. CODE ANN. 51.212(b)(1)-(2) (West). 67. Defendant CPL. CARTER has qualified immunity from liability, and therefore Defendant UIW cannot be held liable, because CPL. CARTER was assisting another law enforcement agency as provided between Defendant UIW and that law enforcement agency. 68. Plaintiffs have failed to mitigate their damages, if any. 69. CPL. CARTER s use of force was reasonably necessary to respond to Redus s repeated, sustained physical attacks, and does not rise to the degree of force necessary to support any claim or cause of action. CPL CARTER was in reasonable fear or apprehension of serious bodily injury or death. Special Exceptions 70. Defendant UIW specially excepts to Plaintiffs Original Petition, paragraphs IX and XI, regarding damages. Defendant moves the Court to require Plaintiffs to specify the maximum amount of damages that Plaintiffs claim. Page 12 of 15
Damages Caps 71. Damages against Defendant UIW, if any, are capped because it is a charitable organization. The liability of Defendant UIW is limited to money damages in a maximum amount of $500,000.00 for each person, for each single occurrence of bodily injury or death. TEX. CIV. PRAC. & REM. CODE ANN. 84.006 (West). 72. Damages against Defendant UIW, if any, are limited to the bond provided by TEX. EDUC. CODE ANN. 51.212 (West). 73. Damages against Defendant UIW, if any, are limited by the Texas Wrongful Death Act and the limits on punitive damages. 74. Defendant UIW cannot be found liable for exemplary damages. 75. If Defendant UIW is found liable for exemplary damages, those damages must be capped under the Texas Damages Act and the Due Process Clauses of the United States and Texas Constitutions. Request for Disclosure 76. Under Texas Rule of Civil Procedure 194, Defendant UIW requests Plaintiffs disclose, within 30 days of the service of this request, the information or material described in Rule 194.2. Jury Demand 77. Defendant UIW demands a jury trial and tenders the appropriate fee with the Answer. Page 13 of 15
Prayer For these reasons, Defendant respectfully prays that the Court dismiss this suit or render judgment that Plaintiffs take nothing, assess costs against Plaintiffs, and award all other relief to which Defendant UIW is entitled. Respectfully submitted, BEIRNE, MAYNARD & PARSONS, L.L.P. The Weston Centre 112 East Pecan Street, Suite 2750 San Antonio, TX 78205 (210) 582-0220 - Telephone (210) 582-0231 Facsimile By: /s/laurence S. Kurth Laurence S. Kurth State Bar No. 11768450 lkurth@bmpllp.com E-mail Renée F. McElhaney State Bar No. 00787483 rmcelhaney@bmpllp.com E-mail Matthew F. Wymer State Bar No. 24005234 mwymer@bmpllp.com E-mail COUNSEL FOR DEFENDANT UNIVERSITY OF THE INCARNATE WORD Page 14 of 15
CERTIFICATE OF SERVICE On the 2nd day of June, 2014, the attached Defendant s Original Answer was served on the following counsel of record via certified mail, return receipt requested, and e-filing: Brent C. Perry Law Office of Brent C. Perry, PC 800 Commerce Street Houston, TX 77002 brentperry@brentperrylaw.com Mason W. Herring Herring Law Firm 4640 Banning Drive Houston, TX 77027 mherring@herringlawfirm.com Robert A. Valadez Javier T. Duran Shelton & Valadez 600 Navarro Street, Suite 500 San Antonio, TX 78205 rvaladez@shelton-valadez.com jduran@shelton-valadez.com /s/ Laurence S. Kurth Laurence S. Kurth Page 15 of 15