Opinion

Harris County, Texas v. Stephanie Jo Baker

Court: Texas Court of Appeals, 1st District (Houston)
Filed: Apr 21, 2016
Status: Published
Cited by: 0 cases
Authority: More cited than 43.3%

defining real property as “land, and generally whatever is erected or growing upon or affixed to land”

How later courts described this case

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holding that failure to provide medication claim did not allege an injury arising from the “use” of the medication, but stated a claim for non-use of property that did not trigger waiver of sovereign immunity

Written by the judges who cited it.

The opinion

Opinion issued April 21, 2016

In The

Court of Appeals

For The

First District of Texas

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NO. 01-15-00930-CV

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HARRIS COUNTY, TEXAS, Appellant

STEPHANIE JO BAKER, Appellee

On Appeal from the 295th District Court

Harris County, Texas

Trial Court Case No. 2014-02549

MEMORANDUM OPINION

Stephanie Jo Baker has sued Harris County for negligence based on personal

injuries she allegedly sustained during her post-arrest booking at the Harris County

jail. Harris County filed a plea to the jurisdiction, asserting that Baker’s claims

should be dismissed because they are barred by governmental immunity. The trial

court denied the plea, and Harris County filed this interlocutory appeal. The

county presents two issues, challenging the trial court’s denial of its plea to the

jurisdiction.

We reverse the trial court’s order denying Harris County’s plea to the

jurisdiction and render judgment dismissing Baker’s claims.

Background

On January 24, 2012, a deputy with the Harris County Sheriff’s Office

arrested Stephanie Jo Baker for the offense of possession of a controlled substance.

Baker was handcuffed and transported to the Harris County jail for booking.

Baker and the Harris County Sherriff’s Office would offer divergent versions of

what occurred during Baker’s arrest and booking.

A report, entitled Significant Event Bulletin, was prepared by the sheriff’s

office. The bulletin provided a description of what had occurred at the booking

center. It stated that the deputies had difficulty fingerprinting Baker because she

was intoxicated. The bulletin noted that Baker had difficulty standing; she was

swaying from side to side. After she was finger printed, the deputies handcuffed

Baker with her hands in front of her, rather than behind her, “because she had

trouble balancing herself.”

When a deputy informed her that she would have to wait a few minutes to be

taken to a restroom, Baker stood up from where she was seated and began cursing

at the deputies in the booking room. A deputy sat Baker down, but she stood up

again, continuing to curse at the deputies. A deputy sat Baker down a second time,

but Baker got up a third time, continuing to swear at the deputies. Fearing that

Baker might assault him, “[The deputy] raised his arm in an attempt to stop her and

to maintain distance from him. Due to her intoxicated state[,] [Baker] lost balance

and fell down on her left side between the concrete benches.”

When one of the deputies attempted to stand her up, Baker tried to bite him.

The deputies were successful in sitting Baker on the bench, but she continued to

curse at the deputies. The report reflects that Baker was seen by a jail nurse for a

bump on the side of her forehead.

On January 21, 2014, Baker sued Harris County for personal injuries

allegedly sustained during her arrest and booking. Baker claimed that the county’s

immunity from suit was waived because her claims fell within a limited waiver of

governmental immunity, provided in the Texas Tort Claims Act section

101.021(2), for injuries caused by a government employee’s negligent use of

tangible personal property. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2)

(Vernon 2011). Baker averred that her injuries were caused by the deputy’s

negligent use of property, specifically, the handcuffs during her arrest, and by the

deputies’ use of the handcuffs, concrete benches, “and other tangible personal

property in the booking area” during her booking at the jail.1

In her original petition, Baker made the following factual allegations:

When being placed under arrest, the deputy placed Plaintiff in

handcuffs in a negligent manner where the hand cuffs were

negligently placed around [Baker’s] wrist. As [Baker] complained of

the tightness of the hand cuffs, the deputy began to violently pull

down on the hand cuffs and strike [Baker] in the back with his knees.

This caused severe injuries to both [Baker’s] back and wrists.

Moreover, the deputy violently slammed [Baker] to the ground and

verbally threatened that not only would he kill her, but nobody would

care. She would just be another dead crack head although she was not

found to be in possession of any other substance but a prescription

medication.

After arriving at the police station, the violence continued. Still

using the hand cuffs for leverage, the deputy slammed Plaintiff

repeatedly into several pieces of furniture at and/or around the

booking area of the police station including a concrete bench. [Baker]

sustained injuries to her head and visual apparatuses.

Baker gave her deposition on June 25, 2014. She testified that, during her

arrest, the deputy had twisted her hands behind her back and squeezed the

handcuffs so tightly that he fractured her wrist. Baker stated that the deputy had

intentionally slammed her to the ground, breaking her teeth.

Baker testified that the deputy “did the same things” at the jail during the

booking process. Baker stated that it was the deputy who had hit her head on the

concrete bench at the jail. Baker elaborated in the following testimony:

Baker alleged that Harris County was liable for the deputies’ actions based on the

doctrine of respondeat superior.

Q. Is it your testimony that he intentionally threw you into the

benches, slammed you into the concrete bench?

A. Yes, he was very angry and aggressive and hateful. So, yeah, I’m

sure he meant to do it.

Q. So, again, it wasn’t that one of you stumbled or whatever. You’re

saying that he—

A. Absolutely.

Q. He intended for it to happen?

A. Yes, sir.

On December 22, 2104, Harris County filed a plea to the jurisdiction. Harris

County asserted that it retained immunity under the intentional-tort exception to

the Tort Claims Act’s governmental-immunity waiver. Section 101.057(2) of the

Act specifically excludes waiver for a claim “arising out of assault, battery, false

imprisonment, or any other intentional tort . . . .” See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.057(2) (Vernon 2011). Harris County argued that its immunity

had not been waived because Baker claimed her alleged injuries were caused by

the deputy’s intentional use of excessive force. The county asserted that Baker had

not alleged that her injuries were caused by the negligent use of tangible personal

property.

Harris County cited City of Watauga v. Gordon in which the Supreme Court

of Texas held that a claim involving a police officer’s use of excessive force—

specifically the use of overly tight handcuffs—to effectuate a lawful arrest was a

claim arising out of civil battery rather than out of negligence. 434 S.W.3d 586,

593 (Tex. 2014). Citing section 101.057(2), the Gordon court concluded, “The

Texas Tort Claims Act waives governmental immunity for certain negligent

conduct, but it does not waive immunity for claims arising out of intentional torts,

such as battery.” Id. at 594. Harris County argued that, as in Gordon, its immunity

had not been waived because Baker’s claim that she was injured by the deputy’s

use of excessive force arose from allegations of civil battery, an intentional tort for

which immunity is not waived.

Baker filed a response to the county’s plea to the jurisdiction. Minimizing

her previous claim that she had been injured by the deputy’s intentional battery of

her, Baker asserted that the injuries she had sustained during booking, when she

fell and hit the concrete bench, had been unintended and had resulted from purely

negligent conduct. Relying on the Significant Event Bulletin to support her

response to Harris County’s plea, Baker asserted,

It is clear from the evidence now in [Baker’s] possession that the

injuries sustained were the result of the negligent acts of [Harris

County’s] employees. . . . The Significant Event Bulletin clearly

states that the fall sustained by [Baker] which caused her injuries arise

from the officer raising his hand without intent to make contact, but

merely to gain some distance. Furthermore, [the report] proves that

the injuries sustained were from the negligent use of the restraints and

placement of the booking room while [Baker] was intoxicated.

Three days after filing her response, Baker amended her petition. She again

alleged Harris County’s immunity was waived pursuant to Tort Claims Act section

101.021(2) because it had caused her injuries “by the negligent use and/or

condition of tangible personal property,” specifically, “the handcuffs, booking

area, concrete benches and other tangible personal property in the booking area.”

Baker deleted most of her earlier allegations that the deputy had used excessive

force when arresting her. Baker did maintain that, in effecting her arrest, the

deputy had “pulled down on the handcuffs,” causing her severe injuries to her back

and to her wrists. However, the primary focus of Baker’s negligence claims in her

amended petition was as follows:

While in the booking room of the Harris County Sheriff’s

Department, [Baker] was left restrained and placed on a bench.

Employees of the Harris County Sheriff’s Department were aware that

[Baker] was intoxicated but left the restraints on her hands and failed

to fully restrain her so that she could not stand up. After being told to

sit down once, [Baker] stood up and approached an officer. The

officer put his hand up to form distance between himself and [Baker].

[Baker] then fell and received injuries due to property located in the

booking room and/or the restraints that were being improperly used.

After Baker amended her petition, Harris County supplemented its plea to

the jurisdiction. Harris County averred, “The amendment of [Baker’s] Petition . . .

carefully deleted all references to violence and slamming and assault by the

deputies[,] but the amended pleading does not delete or diminish the actual sworn

testimony of Plaintiff Stefanie Jo Baker herself” in which she described the

deputy’s intentional and violent conduct that caused her alleged injuries.

Before amending her petition, Baker had responded to written discovery

requests. In its supplement, Harris County pointed to Baker’s interrogatory

answers in which she described, as she had in her deposition testimony, the

deputy’s intentional and violent conduct during her arrest and booking, which she

claimed caused her injuries. Harris County maintained that its immunity from suit

was not waived because, as described in her sworn statements, Baker’s claims

arose from intentional tortious conduct, not from negligent conduct.

Harris County further asserted that its immunity was not waived under the

“condition or use of tangible property” provision of the Tort Claims Act because

neither the condition nor the use of tangible personal property in this case had

proximately caused Baker’s injuries. Baker had cited the handcuffs, the concrete

bench, and the booking room itself as being the tangible property used by the

deputy to cause her injury. Harris County averred that the tangible property

mentioned by Baker did not cause her alleged injuries but, at most, provided a

condition that made her injuries possible.

The trial court denied Harris County’s plea to the jurisdiction. This

interlocutory appeal followed. On appeal, the county raises two issues challenging

the trial court’s denial of its plea.

Plea to the Jurisdiction

A. Standard of Review

Whether subject-matter jurisdiction exists is a question of law that can be

challenged, as it was here, by a plea to the jurisdiction. Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review de novo the disposition of

Harris County’s jurisdictional plea. Tex. Dept. of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex. 2004). Because we address a plea to the jurisdiction in

which disputed evidence implicates both the court’s subject-matter jurisdiction and

the merits of the case, we consider relevant evidence submitted by the parties to

determine if a fact issue exists. Id. at 227. We take as true all evidence favorable

to the non-movant, indulge every reasonable inference, and resolve any doubts in

the non-movant’s favor. Id. at 228. If the evidence creates a fact question

regarding jurisdiction, the plea must be denied pending resolution of the fact issue

by the fact finder. Id. at 227–28. If the evidence fails to raise a question of fact,

however, the plea to the jurisdiction must be granted as a matter of law. Id. at 228.

B. Waiver of Governmental Immunity

Without a valid statutory or constitutional waiver, a trial court lacks subject-

matter jurisdiction to adjudicate a lawsuit against a political subdivision, such as

Harris County. See Suarez v. City of Tex. City, 465 S.W.3d 623, 631 (Tex. 2015);

Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 836–37

(Tex. 2010). The Tort Claims Act waives a governmental unit’s immunity from

suit but only “to the extent of liability created by [the Act].” TEX. CIV. PRAC. &

REM. CODE ANN. § 101.025(a) (Vernon 2011). Relevant to this case, the Tort

Claims Act provides that a governmental unit is liable—and thus immunity is

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

personal or real property if the governmental unit would, were it a private person,

be liable to the claimant according to Texas law.” Id. § 101.021(2) (Vernon

2011). The immunity waiver is therefore intertwined with the merits of a claim

under the Tort Claims Act. Suarez, 465 S.W.3d at 632.

C. Arrest-Based Claims

In its first issue, Harris County contends that it has retained its immunity

from Baker’s claim that she was injured by the deputy’s use of excessive force in

effecting her arrest. Although she had deleted most of her excessive-use-of-force

allegations made in her original petition, Baker alleged in her amended petition

that she was injured during her arrest when the deputy “pulled down on the

handcuffs.” Harris County correctly points out that the Tort Claims Act

specifically states that any waiver of immunity provided for in the Act does not

apply to claims arising out of intentional torts. See TEX. CIV. PRAC. & REM. CODE

ANN. § 101.057(2). Harris County also correctly points out that the Supreme Court

of Texas held in Gordon that a claim of excessive force by a police officer in

effecting a lawful arrest is a claim for battery, an intentional tort. 434 S.W.3d at

593. As a result, a governmental unit’s immunity is not waived under the Tort

Claims Act when a plaintiff claims that she was injured by a police officer’s use of

excessive force in effecting a lawful arrest. See id. at 594.

In her responsive appellate brief, Baker states that she “has abandoned her

claims regarding injuries that may have been received due to the initial

handcuffing and arrest prior to arrival at the police station.” Baker further states

that she “agrees that the Texas Supreme Court, through its decision in City of

Watauga v. Gordon, has ruled that any injuries sustained during the initial

handcuffing and/or arrest of a suspect arise from an intentional touching therefore

making the conduct an intentional tort.” Thus, because Baker acknowledges that

Harris County has not waived its immunity to her claims that that the deputy used

excessive force in effecting her arrest, and she has abandoned those claims, we

dismiss Harris County’s first issue as moot.

C. Booking-Room Claims

Although she has abandoned her arrest-based claims of excessive force,

Baker maintains that Harris County’s immunity is waived because she has stated a

Section 101.021(2) claim for negligent use of tangible personal property with

respect to the injuries she sustained in the booking room. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.021(2). In its second issue, Harris County argues that it

retains its immunity from these claims because the injuries sustained by Baker in

the booking room were not caused by the county’s use of tangible personal

property, as required under Section 101.021(2). See id.

1. Legal Principles

“Section 101.021(2) requires that for immunity to be waived, personal injury

or death must be proximately caused by the condition or use of tangible property.”

Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339,

343 (Tex. 1998). “Use” means “to put or bring into action or service; to employ

for or apply to a given purpose.” Tex. Nat. Res. Conservation Comm’n v. White,

46 S.W.3d 864, 869 (Tex. 2001). Proximate cause consists of cause-in-fact and

foreseeability. City of Sugar Land v. Ballard, 174 S.W.3d 259, 266 (Tex. App.—

Houston [1st Dist.] 2005, no pet.) (citing Leitch v. Hornsby, 935 S.W.2d 114, 118

(Tex. 1996)). The test for foreseeability is whether a person of ordinary

intelligence would have anticipated the danger that his negligence created. Id. at

267.

An act or omission is a cause-in-fact of the injury if it is a substantial factor

in causing the injury without which the injury would have not occurred. Id. (citing

Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995)). To

establish cause in fact, or “but for” causation, a party must show that the

defendant’s negligence was a substantial factor in bringing about her injury and

was a factor without which no harm would have been incurred. Id. (citing Excel

Corp. v. Apodaca, 81 S.W.3d 817, 820 (Tex. 2002). “The word substantial is used

to denote the fact that the defendant’s conduct has such an effect in producing the

harm as to lead reasonable men to regard it as a cause, using that word in the

popular sense, in which there always lurks the idea of responsibility.” Id. (quoting

Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995). This is in

contrast to the “so-called philosophic sense, which includes every one of the great

number of events without which any happening would not have occurred.” Id.

The Supreme Court of Texas has cautioned that the Section 101.021(2)

waiver requires more than the property’s mere involvement. Bossley, 968 S.W.2d

at 343. The court made clear that property does not cause injury if it does no more

than furnish the condition making the injury possible. Id. Proximate cause instead

requires some nexus between the use of the property and the plaintiff’s injury. Id.

at 342–43; see also Dallas Cnty. v. Posey, 290 S.W.3d 869, 872 (Tex. 2009). For

the property waiver to apply, the use of the property must actually have caused the

injury. Posey, 290 S.W.3d at 872.

2. Analysis

In her amended petition, Baker relies on the following allegations to support

her negligence claim based on the county’s alleged negligent use of tangible

personal property: