City of Waco v. Williams

• Decision Date: 18 October 2006
• Docket Number: No. 10-06-00072-CV.,10-06-00072-CV.
• Citation: City of Waco v. Williams, 209 S.W.3d 216 (Tex. App. 2006)
• Parties: CITY OF WACO, Appellant, v. Robert Earl WILLIAMS, Jr. and Maggie Williams Walton, Individually and on behalf of the Estate of Robert Earl Williams, Sr., Deceased, Appellees.
• Court: Texas Court of Appeals

209 S.W.3d 216 CITY OF WACO, Appellant,
v.
Robert Earl WILLIAMS, Jr. and Maggie Williams Walton, Individually and on behalf of the Estate of Robert Earl Williams, Sr., Deceased, Appellees. No. 10-06-00072-CV. Court of Appeals of Texas, Waco. October 18, 2006. Opinion by Chief Justice Gray October 30, 2006.

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Alfred MacKenzie, Haley & Olson PC, Waco, for appellant.

Vic Feazell, Feazell Tighe LLP, Austin, Douglas D. Fletcher, Fletcher & Springer LLP, Dallas, for appellees.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

BILL VANCE, Justice.

In this interlocutory appeal of the trial court's denial of the city's plea to the

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jurisdiction, we must decide if the Texas Tort Claims Act's intentional-tort exception to its waiver of sovereign immunity applies when police officers shoot a person with Tasers.¹ We hold that the plaintiffs' claims allege an intentional tort² and that immunity has not been waived. We will reverse the trial court's ruling and dismiss the case against the city for want of subject-matter jurisdiction.

Background

The plaintiffs, the children of Robert Earl Williams, Sr., the decedent, sued the City of Waco under the Texas Tort Claims Act (the TTCA).³ See TEX. CIV. PRAC. & REM.CODE ANN. § 101.001 — .109 (Vernon 2005 & Supp.2006). Waco filed a plea to the jurisdiction, asserting that the trial court lacked subject-matter jurisdiction because Waco is immune from suit. The trial court denied the plea, and this interlocutory appeal followed. See id. § 51.014(a)(8) (Vernon Supp.2006).

Standard of Review

A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of the action. Texas Dep't Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Whether the trial court has subject-matter jurisdiction is a question of law that we review de novo. Texas Natural Resource Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). The plaintiff has the burden of alleging facts that affirmatively establish the trial court's subject-matter jurisdiction. Texas Ass'n Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). In determining whether jurisdiction exists, we accept the allegations in the pleadings as true and construe them liberally in favor of the plaintiff. Texas Dep't Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.2004).

The Pleadings

The Williamses pled the following facts in their first amended original petition:

7. On June 14, 2005, Waco police responded to a call made by Mr. Williams' sister, complaining that Decedent would not leave her property. By the time the officers arrived, the sister was asking Mr. Williams [Decedent] to come back into her home since any misunderstanding had been resolved. As Mr. Williams attempted to walk back towards his sister's house, the officers tackled him, pushing and dragging him to the ground. Mr. Williams did not resist,

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and in fact simply held his hands up as he lay prone.

8. Suddenly and without provocation, four officers at the scene stood over Mr. Williams as he lay helpless on the ground and negligently began shooting him with Tasers, shocking him over and over with 50,000 volts of electricity. Each of the shooting officers negligently held the Taser triggers for various durations, all the while causing a continuous current to surge through Mr. Williams' body. While an initial Taser blast is designed to last five seconds, subsequent blasts can last as long as officers hold down the triggers.

. . .

10. At no time did Mr. Williams resist. During much of this time, he was actually laying prone on the ground. He was shot with the Tasers while he was on the ground, immobilized, compliant, and utterly defenseless. He began to have difficulty breathing. Whether it was the screams of the witnesses, or the realization of what they had just done, the officers eventually stopped shooting him with their Tasers. As he lay on the ground outside his sister's home, his breathing grew more labored, and he passed out. Mr. Williams had stopped breathing by the time the ambulance arrived and medical personnel's efforts to revive him proved fruitless. At no time did any of the shooting officers — nor any other Waco police officer on the scene — attempt to revive him, or offer him medical assistance of any kind.

...

12. The official autopsy report stated that Decedent's death was a homicide, caused by "multiple electrical shocks during attempted restraint by police." As a witness at the scene said in more blunt and plaintive terms: "They killed that man."

The Williamses' negligence cause of action alleges:

24. Robert Earl Williams, Sr. died as a direct and proximate result of the negligence of the City of Waco and its agents, servants, and officers, including in the following particulars: furnishing and use of tangible personal property (Tasers) that were defective, inadequate, and lacking integral safety component(s); negligent implementation of a policy concerning the use of tangible personal property (Tasers); the improper, negligent, careless and reckless use of inappropriate tangible personal property; and undertaking to train and instruct the officers involved in the use of Tasers, but then acting negligently in implementing its policies by failing to adequately train and supervise those officers on the appropriate use of Tasers.

Texas Tort Claims Act

The TTCA provides a limited waiver of sovereign immunity and allows suits against governmental units only in certain narrow circumstances. Texas Dep't Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001); see TEX. CIV. PRAC. & REM.CODE ANN. § 101.021. We look to the terms of the TTCA to determine the scope of waiver and then consider the particular facts of the case to determine whether the case comes within that scope. Miller, 51 S.W.3d at 587. For immunity to be waived under the TTCA, a claim must arise under one of the three specific areas of liability for which immunity is waived and the claim must not fall under one of the exceptions from waiver. Durbin v. City of Winnsboro, 135 S.W.3d 317, 320 (Tex.App.-Texarkana 2004, pet. denied).

A governmental unit in this state is liable for:

(1) property damage, personal injury, and death proximately caused by the

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wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) 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.

TEX. CIV. PRAC. & REM.CODE ANN. § 101.021.

One of the TTCA's exceptions from this waiver of immunity is the intentional-tort exception: the TTCA does not apply to a claim "arising out of assault, battery, false imprisonment, or any other intentional tort, including a tort involving disciplinary action by school authorities." Id. § 101.057(2).

Discussion

In its first and second issues, Waco asserts that the trial court lacked subject-matter jurisdiction because the Williamses did not plead a cause of action for which Waco's sovereign immunity has been waived—that the Williamses' negligence claims are claims arising out of an intentional tort. Waco relies on a line of cases standing for the proposition that a negligence claim under the TTCA cannot arise out of the intentional acts, including excessive force, of a law enforcement officer against a person:

Texas Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex.2001) (plaintiff's claim that officer was negligent in ignoring police procedure did not obviate fact that officer's conduct was intentional; conduct complained of — officer's hitting car window, aiming gun, blocking car in with police cruiser, and firing at car's tires—was clearly intentional; despite plaintiff's claim that injuries were proximately caused by officer's and department's negligence, plaintiff's allegations fit squarely within section 101.057's exclusion).

Harris County v. Cabazos, 177 S.W.3d 105, 111 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (holding intentional-tort exception applicable to plaintiff's negligence claim that officer, who had intentionally shot plaintiff during traffic stop, negligently discharged his pistol and negligently effectuated arrest).

Morgan v. City of Alvin, 175 S.W.3d 408, 418-19 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (holding intentional-tort exception applicable to plaintiff's negligence claim arising out of plaintiff's allegation that officer negligently instigated a physical confrontation, handcuffing appellant, dragging him out of laundromat, slamming his head against hood of parked car, and "smashing his person" to the gravel parking lot).

City of Garland v. Rivera, 146 S.W.3d 334, 337 (Tex.App.-Dallas 2004, no pet.) (finding no immunity waiver under intentional-tort exception where plaintiff's father died after use of force during arrest; plaintiff's claim that police negligently used pepper spray, handcuffs, and K-9 unit hinged on intentional, rather than negligent, conduct).

City of Laredo v. Nuno, 94 S.W.3d 786, 788 (Tex.App.-San Antonio 2002, no pet.) (despite plaintiff's efforts to phrase claims in terms of officer's negligent failure to properly place plaintiff in police vehicle and negligent

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indifference of other officers and city, focus of plaintiff's claims against city was officer's intentional tortious acts of using excessive force to arrest plaintiff and to illegally seize car).

Medrano v. City of Pearsall, 989 S.W.2d 141, 144 (Tex.App.-San Antonio 1999, no pet.) (where focus of claim was on officers' alleged violent and negligent beating of handcuffed driver, intentional-tort exception could...