City of San Antonio v. Dunn, 04-89-00346-CV

• Court: Court of Appeals of Texas
• Citation: 796 S.W.2d 258
• Docket Number: No. 04-89-00346-CV,04-89-00346-CV
• Parties: The CITY OF SAN ANTONIO and David Alonzo, Appellants, v. Allen DUNN and wife, Sara Dunn, Appellees.
• Decision Date: 15 August 1990

Page 258

796 S.W.2d 258 The CITY OF SAN ANTONIO and David Alonzo, Appellants,
v.
Allen DUNN and wife, Sara Dunn, Appellees. No. 04-89-00346-CV. Court of Appeals of Texas,
San Antonio. Aug. 15, 1990.
Rehearing Denied Oct. 4, 1990.

Page 259

Don W. King, Paula Dlugosz, Asst. City Atty., Bernard Campion, Campion & Campion, San Antonio, for appellants.

Ronald B. Brin, Gerald D. McFarlen, Brin & Brin, Corpus Christi, for appellees.

Before REEVES, BIERY and CARR, JJ.

OPINION

REEVES, Justice.

This is an appeal from a judgment, following a jury trial, which awarded Allen Dunn $10,000.00 and Sara Dunn $8,000.00 for damages they sustained following the wrongful arrest of Allen Dunn by San Antonio Police Officer David Alonzo. The judgment provided for joint and several liability on the part of the City of San Antonio and Officer Alonzo for Allen Dunn's damages and against Officer Alonzo alone for Sara Dunn's damages.

The Dunns and their family arrived in San Antonio to attend the annual livestock show and rodeo held at the Freeman Coliseum. They attempted to park their vehicle in the arena parking lot but were turned away by Officer Alonzo. The Dunns found an alternate parking site and, as they walked to the stadium, Allen Dunn's father-in-law approached Alonzo, apparently to complain about the parking situation or to obtain the name of someone to whom he could complain. On seeing his father-in-law approach the officer, Dunn followed

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and joined the "conversation." The evidence is conflicting, but apparently after exchanging some words with Dunn, Alonzo directed him to Alonzo's supervisor, who was standing nearby. Dunn spoke with him. The Dunns were directed to leave the area and go on to the rodeo. Alonzo then arrested Dunn, and, after restraining his hands with handcuffs, transported Dunn to the downtown police station. Dunn's wife, Sara, witnessed the happening. Dunn was booked and charged with disorderly conduct. Following a trial in municipal court, Dunn was found not guilty. The Dunns prosecuted this suit against the City and Alonzo. The jury found that Alonzo's negligence proximately caused Allen Dunn's injuries; that Alonzo falsely arrested Dunn; that Alonzo used excessive force in arresting Dunn, which was a proximate cause of Dunn's injuries; found that $10,000.00 would compensate Allen Dunn for damages resulting from this occurrence, and $8,000.00 would compensate Sara Dunn for having witnessed this occurrence; failed to find that the City maliciously commenced a criminal proceeding against Dunn when there was no probable cause; and failed to find that Alonzo's use of excessive force was done pursuant to a policy, practice, or custom of the City. The City and Alonzo bring this appeal.

THE CITY'S POINTS OF ERROR

The City raises several complaints about the damage award in its first point of error. ¹ Its main contention is that the trial court erred in awarding damages against Alonzo and the City on a joint and several basis because the City is immune from liability under the doctrine of sovereign immunity. ²

The Dunns contend that the City waived its complaint because the jury was not asked to segregate damages among the tortfeasors or between the causes of action and the City failed to object to the questions submitted to the jury.

The court's charge should, as a general matter, limit the jury's consideration of damages by instructing them on the proper measure of damages. Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87, 90 (Tex.1973); Texas Cookie Co. v. Hendricks & Peralta, Inc., 747 S.W.2d 873, 878 (Tex.App.--Corpus Christi 1988, writ denied).

The City complained to the trial court that damages were not divided among the tortfeasors. The following colloquy took place:

FOR THE CITY: And as to the damages, my question as to the--or objection as to the [sic] Question Nos. 7 and 8 on damages is in the form of a question. What if the jury finds in some issues against both the City and Alonzo? There's no division in the damages question as to what part of the judgment would be paid by the City and what part by Alonzo. I don't know. I just have a question as to whether that's--if that's--in other words, that's just a difficulty that comes to mind. I'm not sure that's in the form of a firm objection or not.

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THE COURT: That's a question that comes to my mind, too. There's [sic] some places where the City is accountable, and some where it's not. I know that.

FOR THE DUNNS: They would be jointly and severally liable. If it is on the basis of respondeat superior, then the City would be entitled to indemnity for the--

THE COURT: I tell you--

FOR THE DUNNS: --employee that created the vicarious liability. So we don't really need that.

THE COURT: That's not the question. The question is, if they find them jointly--where they're jointly and severally and also where they're not.

FOR THE CITY: Because in Title 19--

THE COURT: I'm not concerned unless and until we have a verdict and then we'll argue about that. The issues are prepared to get the disputed facts answered, and not necessarily for the entry of judgment. I'll have to wait and decipher that.

(Emphasis added.) Although the City's objection was not as clear as it might have been, it did bring to the trial court's attention the insufficiency of the charge. In fact, the court restated the problem to the Dunns' attorney. A similar objection to a jury question was held to be sufficient in Dawson v. Garcia, 666 S.W.2d 254, 261 (Tex.App.--Dallas 1984, no writ) (recoverable vs. nonrecoverable items of damage); see Hernandez v. Montgomery Ward & Co., 652 S.W.2d 923, 924 (Tex.1983), overruled on other grounds sub nom. Acord v. General Motors Corp., 669 S.W.2d 111, 114 (Tex.1984); TEX.R.CIV.P. 272. The City made the basis of its objection known to the trial court.

The Texas Tort Claims Act, TEX.CIV.PRAC. & REM.CODE ANN. §§ 101.001-101.109 (Vernon 1986 & Vernon Supp.1990), provides for a limited waiver of governmental immunity for certain torts. The waiver is restricted to any injury arising out of the use of publicly owned vehicles, premises defects, and conditions or use of property. City of Denton v. Van Page, 701 S.W.2d 831, 834 (Tex.1986); McCord v. Memorial Medical Center Hosp., 750 S.W.2d 362, 363 (Tex.App.--Corpus Christi 1988, no writ); TEX.CIV.PRAC. & REM.CODE ANN. § 101.021 (Vernon 1986). Even if a claim may fall under one of these categories, the City's immunity is not waived if the claim arises out of an intentional tort. McCord v. Memorial Medical Center Hosp., 750 S.W.2d at 363; Townsend v. Memorial Medical Center, 529 S.W.2d 264, 267 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.); TEX.CIV.PRAC. & REM.CODE ANN. § 101.057(2) (Vernon 1986).

False arrest is an intentional tort. See Montgomery Ward & Co. v. Garza, 660 S.W.2d 619, 621 (Tex.App.--Corpus Christi 1983, no writ); Sanchez v. Garza, 581 S.W.2d 258, 259 (Tex.App.--Corpus Christi 1979, no writ). The Texas Tort Claims Act specifically exempts intentional torts from the waiver of immunity. TEX.CIV.PRAC. & REM.CODE ANN. § 101.057(2) (Vernon 1986). The City, therefore, has no liability for Alonzo's falsely arresting Dunn. As a result of the intentional torts, the handcuffs were applied so tightly that they caused discomfort and swelling to Dunn's wrist which occurred, in part, while he was being transported to the jail at a high rate of speed. The transportation to jail in a police car owned by the City of San Antonio by a careless and angry police officer, as a consequence of his intentional tort, certainly cannot be attributed to the City as negligence. All of Dunn's damages arose out of the false arrest and the excessive force inflicted on Dunn. Since the claims arise out of the intentional tort, there has been no waiver of immunity, and the City cannot be held liable for Dunn's damages arising out of Alonzo's negligence.

The use of excessive force by police is an element of a civil rights action pursuant to 42 U.S.C.A. § 1983 (1981). City of Amarillo v. Langley, 651 S.W.2d 906, 913 (Tex.App.--Amarillo 1983, no writ). The federal violation requires a showing that the use of the excessive force is a policy or custom of the City--there is no liability for

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the City based on the theory of respondeat superior for this cause of action. Monell v. Department of Social Serv., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978); City of Amarillo v. Langley, 651 S.W.2d at 913. The jury failed to find that Alonzo's use of excessive force was done pursuant to a policy, practice, or custom of the City. In the absence of a jury finding of such a custom or policy, the City incurs no liability for the officer's use of excessive force.

The City has no liability to Dunn under these circumstances. Thus, the trial court erred in awarding Allen Dunn judgment against the City, jointly and severally or otherwise. That part of the trial court's judgment holding the City jointly and severally liable is reversed and judgment is rendered that the Dunns take nothing from the City.

Our disposition of the City's first point makes it unnecessary to review the City's remaining points.

OFFICER ALONZO'S POINTS OF ERROR

Alonzo first alleges the...