City of Fort Worth v. Deal
| Decision Date | 31 May 2018 |
| Docket Number | NO. 02-17-00413-CV,02-17-00413-CV |
| Citation | 552 S.W.3d 366 |
| Parties | CITY OF FORT WORTH, Texas, Appellant v. Mary DEAL, Appellee |
| Court | Texas Court of Appeals |
ATTORNEY FOR APPELLANT: SARAH J. FULLENWIDER, CITY ATTORNEY; LAETITIA COLEMAN BROWN, SENIOR ASSISTANT CITY ATTORNEY; LYNN WINTER, ASSISTANT CITY ATTORNEY FOR CITY OF FORT WORTH, FORT WORTH, TEXAS.
ATTORNEY FOR APPELLEE: JOE RIDDELL, AUSTIN, TEXAS.
PANEL: SUDDERTH, C.J.; MEIER and PITTMAN, JJ.
The Texas Tort Claims Act’s (TTCA) limited waiver of sovereign immunity does not extend to intentional torts. Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (West 2011). In this interlocutory appeal from the partial denial of Appellant City of Fort Worth, Texas’s jurisdictional plea, we consider whether the TTCA’s intentional-tort exception applies to Appellee Mary Deal’s claim that her son’s death following a high-speed police pursuit and crash was proximately caused by a police officer’s negligent deployment of a tire-deflation device (TDD). Because, on these facts, a sufficiently close connection existed between the vehicle and Deal’s son’s person so that the unknown officer’s use of the TDD constituted a battery, and because Deal does not otherwise allege a distinct negligence claim that does not arise out of the battery, we conclude that Deal’s claim is barred by the intentional-tort exception. We will reverse and render a judgment of dismissal for the City.
On February 7, 2013, at around 1:30 a.m., Fort Worth police officer Thomas Shelton was parked in his patrol unit near Texas Christian University when he observed a vehicle—later determined to be driven by Jakob Lange, Deal’s twenty-four-year-old son—traveling at a high rate of speed. Officer Shelton initiated a pursuit, activated his overhead lights and later his siren, and attempted to stop the vehicle, but Lange, who had performed at a local club earlier that night, continued driving. Officer Shelton’s in-car video camera recorded the pursuit and shows Lange dangerously speeding through residential areas and violating numerous traffic laws. At some point during the less-than-six-minute pursuit, at least one police officer stopped on the side of the road to deploy a "Stop Stick"—a TDD that sits on the surface of the road and is designed to puncture a vehicle’s tires when they contact the device’s embedded steel spikes—but Lange passed by before the officer could get into position. The pursuit came to an abrupt end when Lange lost control of his vehicle and struck a tree. He was ejected from the vehicle and died the next day.
Deal sued the City for negligence, alleging in relevant part in her pro se petition that Lange’s death was proximately caused by an unknown police officer who had negligently deployed a TDD.1 Specifically, Deal alleged that upon investigation, the right front tire of Lange’s vehicle had sustained damage that was consistent with the use of a TDD—(1) it contained "about 20 punctures or marks in it, evenly spaced about 3 inches apart"; (2) a responding patrol unit had also suffered a punctured tire at the scene of the crash; and (3) there was a fifty-foot-long line of "fresh gouges" in the pavement where Lange’s vehicle had veered from the road, which Deal averred was caused by "the rim of the right front wheel and/or the TDD stuck around the wheel," proving "that the right front tire had been blown out well before the Honda crashed into the curb or the tree."
Deal claimed that the unknown police officer had deployed the TDD negligently—when Lange "was traveling approximately sixty miles per hour heading into a dark curve in a tree-lined road" (a "very dangerous situation in which to deploy a TDD") and "contrary to the City’s training and the manufacturer’s instructions" (by holding the cord in the air). According to Deal, the TDD
Deal also included TTCA-related allegations in her petition. She stated that the City had "waived immunity from suit under the provisions of the [TTCA] because the death of [Lange] resulted from the use or misuse of tangible personal property, in that the [TDD] that caused and/or contributed to cause the death of [Lange] was the property of the City and was used by the [City] and/or its agents." She also stated that she
The City answered and filed a plea to the jurisdiction, arguing that its governmental immunity was not waived for Deal’s negligent supervision and negligent training claims, that Deal’s negligent-deployment claim was barred by the TTCA’s intentional-tort exception, and that it was entitled to derived official immunity. Considering the affidavits attached to the plea, although the City acknowledged that most of its police vehicles are equipped with a TDD (the Stop Stick), it denied that a TDD was deployed during the pursuit.2 The City’s jurisdictional evidence also included the Stop Stick’s usage guidelines.3
Deal responded that the caselaw relied upon by the City in its plea was either inapposite or distinguishable and that she had successfully pleaded a claim within the TTCA’s waiver of immunity for personal injury or death caused by the negligent use of tangible personal property. Law-enforcement expert Geoffrey P. Alpert declared in his attached affidavit that "[t]he use of spike strips in this location, at approximately 60 miles per hour[,] was unreasonable, against common police practice and a proximate cause of the crash." And accident-reconstruction expert Russell E. Darnell opined in his affidavit that Lange had "lost control of his [vehicle] due to the deployment of a TDD" and that Lange "would not have been killed on the night of February 7, 2013" had the police "not engaged in an un-authorized deployment of a [TDD]." Deal also filed a first-amended original petition, this time through counsel.
At the hearing on the City’s plea, the City acknowledged that for purposes of the plea, Deal’s pleadings had to be taken as true (including her allegation involving the TDD), and the City appeared to concede that by deploying a TDD, the unknown police officer had used tangible property within the meaning of the TTCA. The trial court ultimately granted the City’s plea on Deal’s negligent entrustment, negligent supervision, and negligent training claims, but it denied the plea insofar as the City argued that Deal’s negligent-deployment claim is barred by the TTCA’s intentional-tort exception.4 The trial court also confirmed that it was basing its ruling on Deal’s original petition, since she had failed to obtain leave before filing her amended petition.5 Only the City appeals.
In its only issue, the City argues that the trial court erred by denying its jurisdictional plea because its unknown police officer’s deployment of the TDD was an intentional tort for which the City’s governmental immunity has not been waived. It characterizes the act as an arrest, as intentional, or as a battery.
In addition to criticizing parts of City of Watauga v. Gordon , 434 S.W.3d 586 (Tex. 2014), Deal responds that the TDD deployment did not constitute an arrest, that the caselaw supporting the City’s intentional-act argument is inapposite, and that the City failed to demonstrate how an offensive-contact battery could have occurred when the TDD merely contacted Lange’s vehicle and not his person. Deal also argues that even if the TDD’s deployment was an intentional tort, she nevertheless alleged a distinct negligence claim within the TTCA’s waiver of immunity.
Supplementing our analysis with persuasive out-of-state and federal authorities, we (1) agree with the City that the TDD deployment was a battery and (2) disagree with Deal that she alleged a distinct negligence claim that does not arise out of the battery.
A plea to the jurisdiction is a dilatory plea that seeks to dismiss a cause for lack of subject-matter jurisdiction. Harris Cty. v. Sykes , 136 S.W.3d 635, 638 (Tex. 2004). Immunity from suit defeats a trial court’s subject-matter jurisdiction and is therefore properly asserted in a plea to the jurisdiction. See Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 225-26 (Tex. 2004). We review the trial judge’s ruling denying a jurisdictional plea based on governmental immunity de novo. Tex. Nat. Res. Conservation Comm'n v. IT-Davy , 74 S.W.3d 849, 855 (Tex. 2002).
A plea to the jurisdiction may challenge either the pleadings or the existence of jurisdictional facts. Miranda , 133 S.W.3d at 226-27. When the pleadings are challenged, we consider whether the pleader has alleged sufficient facts to demonstrate the court’s subject-matter jurisdiction over the matter, construing the pleadings liberally in favor of the plaintiff and looking to the pleader’s intent. Id. ; see City of Waco v. Kirwan , 298 S.W.3d 618, 621 (Tex. 2009). 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 that have been raised. Miranda , 133 S.W.3d at 227. If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.
Governmental immunity protects political subdivisions of the State, including cities like the City, from lawsuits for money damages unless immunity...
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