City of Watauga v. Russell Gordon

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00221-CV

City

of Watauga

v.

Russell

Gordon

§

§

§

§

From the 17th District Court

of

Tarrant County ( 17-252867-11 )

November

21, 2012

Opinion

by Justice Walker

JUDGMENT

This

court has considered the record on appeal in this case and holds that there was

no error in the trial court’s judgment. It is ordered that the judgment of the

trial court is affirmed.

It

is further ordered that appellant City of Watauga shall pay all of the costs of

this appeal, for which let execution issue.

SECOND DISTRICT COURT OF APPEALS

By_________________________________

Justice Sue Walker

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00221-CV

City of Watauga

APPELLANT

V.

Russell Gordon

APPELLEE

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FROM THE 17th

District Court OF Tarrant COUNTY

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OPINION

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Appellee

Russell Gordon filed suit against Appellant City of Watauga, alleging that he

suffered personal injuries when two City of Watauga Police Officers, while

arresting him and again while transporting him to jail, negligently used tangible

personal property—handcuffs—to pin his hands behind his back too tightly. [1]

The City filed a plea to the jurisdiction, asserting that it was immune from

suit because the police officers’ conduct fell within the intentional tort

exception to the Texas Tort Claims Act’s (TTCA) waiver of sovereign immunity. See

Tex. Civ. Prac. & Rem. Code Ann. §

101.057(2) (West 2011) (excluding from TTCA’s limited waiver of immunity claims

arising out of assault, battery, false imprisonment, or any other intentional

tort). The trial court signed an order denying the City’s plea to the

jurisdiction, and the City perfected this interlocutory appeal.

In a

single issue, the City contends that the trial court erred by denying its plea

to the jurisdiction. For the reasons set forth below, we will affirm the trial

court’s denial of the City’s plea to the jurisdiction.

The

standard of review of an order granting a plea to the jurisdiction based on

governmental immunity is de novo. Tex.

Natural Res. Conservation Comm’n v. IT–Davy , 74

S.W.3d 849, 855 (Tex. 2002); Mayhew

v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998), cert.

denied , 526 U.S. 1144 (1999). It is the plaintiff’s burden to allege facts

that affirmatively establish the trial court’s subject matter jurisdiction. See Tex. Ass’n of Bus. v. Tex. Air

Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993). In

determining whether the plaintiff has met this burden, we look to the

allegations in the plaintiff’s pleadings, accept them as true, and construe

them in favor of the plaintiff. See

Tex. Dep’t of Parks & Wildlife v. Miranda , 133

S.W.3d 217, 226 (Tex. 2004).

However,

if a plea to the jurisdiction challenges the existence of jurisdictional facts,

we consider relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues raised, as the trial court is required to

do. Id . at 227; Bland

Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2000). In a case in

which the jurisdictional challenge implicates the merits of the plaintiff’s

cause of action and the plea to the jurisdiction includes evidence, the trial

court reviews the relevant evidence to determine if a fact issue exists. See

Miranda , 133 S.W.3d at 227 . If the evidence creates a fact question

regarding the jurisdictional issue, then the trial court cannot grant the plea

to the jurisdiction, and the fact issue will be resolved by the factfinder. Id .

This standard generally mirrors that of a summary judgment under Texas Rule of

Civil Procedure 166a(c). Id.

at 228 .

Under the doctrine of sovereign immunity, the State is not liable

for the negligence of its employees absent a constitutional or statutory

provision for liability. Univ. of Tex. Med. Branch v. York , 871 S.W.2d

175, 177 (Tex. 1994). Statutory provisions authorizing imposition of liability

on the State for the negligence of its employees are set forth in section

101.021(2) of the TTCA; that section expressly waives sovereign immunity for

“personal injury and death so caused by a condition or use of tangible personal

. . . property if the governmental unit would, were it a private person, be

liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem.

Code Ann. § 101.021(2)

(West 2011). Section 101.021(2)’s limited waiver of sovereign immunity does

not apply, however, to claims “arising out of assault, battery, false

imprisonment, or any other intentional tort.” Id . § 101.057.

Here, t he City conceded in its brief and during oral

argument that the police officers’ use of handcuffs constitutes the use of

tangible personal property for purposes of section 101.021(2)’s limited waiver

of immunity. The City argues, however, that the evidence it submitted in

support of its plea to the jurisdiction established that the handcuffs were not

negligently used but instead were intentionally used. The City

points to the affidavits of the police officers that the City filed in support

of its plea to the jurisdiction and argues that the officers applied the

handcuffs to Gordon exactly as they intended to do and in accordance with their

training, so that “the actions underlying Plaintiff’s claims are intentional

acts rather than potential acts of negligence.” The City asserts that the

police officers thus committed intentional torts [2] and that the TTCA’s limited

waiver of immunity does not apply to intentional torts. See id .

Premised

on the police officers’ affidavits stating that they had intentionally applied

the handcuffs to Gordon and that the handcuffs were not used “in any manner

other than exactly how [the officers] intended them to be used and applied” and

were applied “[a]s per training,” the City argues that this intent—that the

officers intended their acts as opposed to intended to cause the injuries at

issue—qualifies their conduct in applying the handcuffs as an intentional

tort. In its brief, the City thoroughly analyzes and attempts to delineate and

distinguish between the case law holding, according to the City, that to

qualify as an intentional tort, the state actor must have only intended his act [3]

and the case law holding that to qualify as an intentional tort, the state

actor must have intended the injury he caused. [4] The City urges us to

resolve this purported split of authority and argues that only the former intent

is required.

We

need not decide in this case whether a police officer must have intended only his

act or must have intended the injury he caused for a tort that he commits to

fall within section 101.057’s intentional tort exception to section 101.021(2)’s

limited waiver of immunity. Gordon pleaded facts supporting his claim that the

police officers’ negligent use of tangible personal property caused his

injuries; he did not plead facts that would support an intentional tort.

Gordon specifically pleaded that, both when he was arrested and when he was

transported from the police station to the jail, he consented to the

application of handcuffs and did not resist their application. Thus, under

Gordon’s pleadings, the officers’ application of the handcuffs did not involve an

offensive touching or contact of Gordon by the officers as required to constitute

the intentional tort of assault or battery. See Tex. Penal Code Ann. §

22.01(a)(3) (West 2011) (assault); Fisher v. Carrousel Motor Hotel, Inc .,

424 S.W.2d 627, 629 (Tex. 1967) (battery). Because Gordon did not plead facts

showing that the police officers committed an assault, battery, false

imprisonment, sexual assault, wrongful death or injury via excessive force, or

other intentional tort, this case is distinguishable from the cases relied upon

by the City. See Tex. Dep’t of Pub. Safety v. Petta , 44 S.W.3d 575, 580

(Tex. 2001) (holding that plaintiff had pleaded intentional tort by pleading

assault and battery claim against officer so that claims against State

predicated on officer’s conduct fell within intentional tort exclusion from TTCA’s

limited waiver of immunity); City of Fort Worth v. Chattha , No.

02-11-00342-CV, 2012 WL 503223 , at *6 (Tex. App.—Fort Worth Feb. 16, 2012, no

pet.) (mem. op.) (holding that plaintiff had pleaded intentional tort of

battery by pleading that officer performed a “take-down” maneuver to force

plaintiff to the ground); City of Waco , 209 S.W.3d at 220–24

(holding that plaintiff’s pleading—that arresting officers utilized excessive

deadly force in decedent’s arrest by repeatedly Tasering decedent as he lay

helpless on the ground—pleaded an intentional tort); Harris Cnty. , 177

S.W.3d at 112 (holding that plaintiff’s pleading—that police officer approached

vehicle with gun drawn, “walked directly to the driver’s side door of the

vehicle occupied by the Plaintiff and shot the Plaintiff in the neck”—pleaded

an intentional tort); City of Garland , 146 S.W.3d at 337–38 (holding

that plaintiff’s pleading—that police used excessive and deadly force to arrest

decedent that included the use of pepper spray, handcuffs, a K-9 police service

dog, and other departmentally issued—properly constituted claim for intentional

tort); City of Laredo , 94 S.W.3d at 789 (holding that plaintiff had

pleaded intentional tort of excessive force and assault by pleading that

officer banged her vehicle with his hand, dragged her from the vehicle, threw

her against the side, hit her in the back with his handcuffs, kicked her on the

legs, hit her face against the car, grabbed her breasts, rubbed his private

part against her behind, and reapplied handcuffs to her wrist and leg).

Likewise, the particular police

officers’ affidavits filed by the City in this case—which indicate that they intentionally

applied the handcuffs to Gordon “exactly as they intended to do” and in “accordance

with their training,” do not plead facts indicating that Gordon’s

negligent-use-of-personal-property claim is actually an intentional tort claim.

Each officer stated in his affidavit, in pertinent part, that Gordon was

handcuffed with his hands behind his back using ASP brand handcuffs and

[a]s per training,

I checked the handcuffs to insure they were double locked . . . and not too

tight. I check for over tightness by running a finger between the handcuffs

and the suspect’s wrists. . . . The checks for double locking and tightness are

checks which were taught to me in the basic police academy at the beginning of

my law enforcement career and are procedures which I follow every time a

prisoner is handcuffed.

. . . .

I applied the handcuffs in the manner described and

conducted the double-lock check and fitness check with my finger

intentionally. At no time were the handcuffs which were applied to Mr. Gordon

used in any manner other than exactly how I intended them to be used and

applied.

These

affidavits state no jurisdictional facts establishing an intentional

tort; no facts are stated indicating that the police officers committed

assault, battery, false imprisonment, sexual assault, wrongful death or injury

via excessive force, or other intentional tort. Accord Tex. Penal Code Ann.

§ 22.01 (a)(1), (2), (3) (elements of assault), § 22.011 (West 2011) (elements

of sexual assault); Fisher , 424 S.W.2d at 629–30 (elements of battery); Sears,

Roebuck & Co. v. Castillo , 693 S.W.2d 374 , 375–76 (Tex. 1985) (elements

of false imprisonment); City

of Laredo , 94 S.W.3d at 789 (explaining that use of excessive

force to arrest someone is “intentional tortious act”). Instead, the officers’

affidavits state that they properly applied the handcuffs to Gordon, just as

they intended to, in accordance with their training. Thus, to the extent the

police officers’ affidavits constituted jurisdictional evidence, that evidence

implicated the merits of Gordon’s claim (whether or not the handcuffs were

properly or negligently applied) and, at the very most, raised a fact issue on whether

the officers negligently applied the handcuffs to Gordon. See Miranda ,

133 S.W.3d at 227 . To hold otherwise would completely eviscerate the limited

waiver of immunity set forth in section 101.021; virtually every time a state

actor allegedly negligently used tangible personal property, section 101.021’s specific,

limited waiver of immunity for this type of conduct could be defeated based

solely on an affidavit by the state actor alleging that he or she in fact intentionally

intended to use the tangible personal property and intentionally intended to

use it in the manner that he or she used it. Accordingly, because the

jurisdictional evidence presented by the City—consisting of only the two

affidavits by the police officers who handcuffed Gordon—implicated the merits

of Gordon’s negligent-use-of-tangible-personal-property claim and, at most, established

a fact issue on whether the officers negligently applied the handcuffs to

Gordon, the trial court properly denied the City’s plea to the jurisdiction. See

Miranda , 133 S.W.3d at 277 .

We

overrule the City’s sole issue, and we affirm the trial court’s denial of the

City’s plea to the jurisdiction on Gordon’s claim for personal injuries based

on the police officers’ allegedly negligent use of tangible personal property—the

handcuffs.

SUE WALKER

JUSTICE

PANEL:

DAUPHINOT, WALKER, and GABRIEL, JJ.

DELIVERED: November 21,

2012

[1] The facts pleaded by

Gordon were as follows: one evening City of Watauga police pulled him over on

suspicion of driving while intoxicated; after Gordon politely refused to

perform field sobriety tests, the officers told him that he would be placed

under arrest and handcuffed; Gordon “consented to the arrest and allowed the

officer to place the cuffs on him without any resistance”; Gordon repeatedly

informed the officer that the handcuffs were too tight and were hurting him, but

the officer did not check the tightness of the handcuffs. Gordon pleaded that

at the police station, after he had refused to perform any additional sobriety

tests, he was told that he would be handcuffed and taken to jail. Gordon again

consented, and the placement of handcuffs occurred without incident. Gordon

told the officers that the handcuffs were too tight and were causing him pain.

Again, the officers did not check or loosen the handcuffs. Gordon pleaded a

negligence claim, pleading that the officers acted negligently in their use of

tangible personal property, specifically the use of handcuffs, in one or all of

the following ways: by failing to properly use the handcuffs as designed; by

failing to follow proper policies and procedures as to the proper use of

handcuffs; and by applying the handcuffs on him in a manner that was too tight

on his wrists.

[2] For example, the City

argues that

[e]ven though the Petition purports to plead a

negligence cause of action, the evidence submitted by the Defendant in the

trial court establishes that the acts complained of (placing the handcuffs,

double locking them and checking by running a finger between the handcuffs and

the suspect’s wrist) were purposeful and intentional.

[3] The City relies on City

of Waco v. Williams , 209 S.W.3d 216 (Tex. App.—Waco 2006, pet. denied); Harris

County v. Cabazos , 177 S.W.3d 105 (Tex. App.—Houston [1st Dist.]

2005, no pet.); City of Garland v. Rivera , 146 S.W.3d 334 (Tex. App.—Dallas

2004, no pet.); and City of Laredo v. Nuno , 94 S.W.3d 786 (Tex. App.—San

Antonio 2002, no pet.).

[4] The City identifies this

line of cases as the Reed Tool line of cases. See Reed Tool Co. v.

Copelin , 689 S.W.2d 404 (Tex. 1985).