City of Watauga v. Gordon

Decision Date06 June 2014
Docket NumberNo. 13–0012.,13–0012.
PartiesThe CITY OF WATAUGA, Petitioner, v. Russell GORDON, Respondent.
CourtTexas Supreme Court


Ramon G. Viada, III, Viada & Strayer, Woodlands, TX, for Amicus Curiae.

Joe C. Tooley, Law Office of Joe C. Tooley, Rockwall, TX, for Petitioner.

Kenneth Peter Trosclair, Wilson, Trosclair & Lovins, PLLC, Dallas, TX, for Respondent.

Justice DEVINE delivered the opinion of the Court.

The Texas Tort Claims Act waives governmental immunity for, among other things, personal injuries allegedly caused by the negligent use of property. Tex. Civ. Prac. & Rem.Code § 101.021. The Act does not waive immunity when the claim arises out of an intentional tort, however. Id.§ 101.057(2). The question in this interlocutory appeal is whether an arrestee's lawsuit against a city for injuries, accidentallycaused by a police officer's use of handcuffs, states a battery or negligence claim. The court of appeals concluded that the underlying claim was for negligence and therefore affirmed the trial court's order, denying the city's governmental-immunity plea. 389 S.W.3d 604 (Tex.App.-Fort Worth 2012). We conclude, however, that the underlying claim is for battery. Because the city's governmental immunity has not been waived for this intentional tort, we reverse the court of appeals' judgment and dismiss the case.

I. Background

City of Watauga police officers stopped Russell Gordon on suspicion of drunk driving and asked him to submit to a sobriety test. Gordon declined. He was then arrested without resistance. Gordon was handcuffed at the scene and again later when transported from a nearby police station to the city jail. Gordon asserts that on both occasions he informed the officers that his handcuffs were too tight but that his complaints were ignored.

Gordon subsequently sued the City for injuries to his wrists allegedly caused by the officers' negligent use of property—the handcuffs. The City responded with a plea to the jurisdiction, asserting immunity from suit under the intentional-tort exception to the Tort Claims Act's sovereign-immunity waiver. Tex. Civ. Prac. & Rem.Code § 101.057(2). The trial court denied the City's plea. The City appealed. SeeTex. Civ. Prac. & Rem.Code § 51.014(a)(8) (permitting interlocutory appeal of an order granting or denying a plea to the jurisdiction by a governmental unit). The court of appeals affirmed, concluding that Gordon's pleadings asserted a negligence claim and that the City's plea and jurisdictional evidence did not show an exception to the applicable immunity waiver. 389 S.W.3d at 607–08.

II. Jurisdiction

Because this is an interlocutory appeal, we begin with the issue of our own jurisdiction. As a general rule, appeals may be taken only from final judgments. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex.2001). Exceptions to this general rule are provided by statutes that specifically authorize interlocutory appeals of particular orders. See, e.g.,Tex. Civ. Prac. & Rem.Code § 51.014 (listing a number of interlocutory orders that may be appealed). Another general rule provides for finality of these appeals in the courts of appeals. Tex. Gov't Code § 22.225(b)(3) (providing generally that petition for review is not allowed to the supreme court in an interlocutory appeal). But again, exceptions exist. One such exception provides that the supreme court is not deprived of jurisdiction to consider an interlocutory appeal when a justice dissents in the court of appeals or when the court of appeals' decision conflicts with a prior decision. Id. § 22.225(c).

The City here asserts conflicts jurisdiction, arguing that the decision in this case conflicts with several prior decisions that, unlike this case, apply the intentional-tort exception to bar personal-injury claims arising from a police officer's use of tangible property during an arrest. See, e.g., Harris Cnty. v. Cabazos, 177 S.W.3d 105 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (holding immunity not waived for officer's intentional discharge of pistol); City of Garland v. Rivera, 146 S.W.3d 334 (Tex.App.-Dallas 2004, no pet.) (holding immunity not waived for intentional use of pepper spray, handcuffs, and police service dog); Morgan v. City of Alvin, 175 S.W.3d 408 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (holding immunity not waived for officer's physical assault of arrestee); City of Laredo v. Nuno, 94 S.W.3d 786 (Tex.App.-San Antonio 2002, no pet.) (holding immunity not waived for intentional use of handcuffs and excessive force in arrest). A conflict in decisions is defined as an “inconsistency ... that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants.” Tex. Gov't Code § 22.001(e); § 22.225(e). We agree that such a conflict is presented here and turn to the issue of the City's immunity.

III. The Underlying Claim: Negligence or Battery

The City of Watauga, as a political subdivision of the State, is protected from tort claims by governmental immunity. Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.1998). Governmental immunity 1 generally protects municipalities and other state subdivisions from suit unless the immunity has been waived by the constitution or state law. Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex.1994). The Texas Tort Claims Act provides a limited waiver of this immunity and is asserted as the basis for the underlying suit here.

In pertinent part, the Tort Claims Act waives immunity for injuries caused by the negligent use of tangible property, stating:

A governmental unit in the state is liable 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.

Tex. Civ. Prac. & Rem.Code § 101.021(2). This limited waiver does not apply to intentional torts, however. Id.§ 101.057. Thus, to sue a governmental unit under the Act's limited waiver, a plaintiff may allege an injury caused by negligently using tangible personal property, York, 871 S.W.2d at 178 n. 5, but to be viable, the claim cannot arise out of an intentional tort, Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex.2001).

The City maintains that its immunity has not been waived because Gordon's underlying claim arises from an intentional tort, a battery, also sometimes referred to as an assault. Texas courts have recognized private causes of action for both assault and battery for well over a century. See Tex. Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 115–116 (Tex.2011) (citing Sargent v. Carnes, 84 Tex. 156, 19 S.W. 378, 378 (1892)). These two intentional torts are related, but conceptually distinct. 4 J. Hadley Edgar, Jr., & James B. Sales, Texas Torts & Remedies § 50.01[1] at 50–3 (2013). An assault occurs when a person is in apprehension of imminent bodily contact, whereas a battery is committed when an individual actually sustains a harmful or offensive contact to his or her person. See generally, 1 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts §§ 33–40 (2d ed.2012) (hereafter “The Law of Torts”).

Today, the Texas Penal Code combines common-law concepts of assault and battery under its definition of “assault.” Tex. Pen.Code § 22.01(a). Reliance on the criminal-assault statute has led several Texas civil courts to meld common-law concepts of assault and battery under the rubric of assault. 2 This statute provides that a person commits an assault if the person either:

(1) intentionally, knowingly, or recklessly causes bodily injury to another ...;

(2) intentionally or knowingly threatens another with imminent bodily injury ...; or

(3) intentionally or knowingly causes physical contact with another when he or she knows or should reasonably believe that the other will regard the contact as offensive or provocative.

tex. Pen.Code § 22.01(a).

The statute's second alternative definition mirrors the traditional notion of common-law assault, while the first and last alternatives correspond to separate forms of common-law battery. The Second Restatement of Torts similarly identifies two forms of battery: one form that results in harmful bodily contact and another that results in offensive bodily contact. Restatement (Second) of Torts §§ 13, 18 (1965). Because its police officers did not intend any harmful bodily contact when they arrested Gordon, the City relies on the latter form of battery, maintaining that the arrest constituted an offensive bodily contact.

In Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex.1967), we recognized this type of battery. In that case, the manager of a motel restaurant snatched a plate from the hands of a black man as he stood in a buffet line, shouting that he would not be served. Fisher, 424 S.W.2d at 628–29. We held the manager's conduct to be actionable as a battery. Id. at 630. Relying on the Restatement, we noted that it was the offensive nature of the contact, not its extent, that made the contact actionable: “Personal indignity is the essence of an action for battery; and consequently the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting.” Id. (citing Restatement (Second) of TortsS § 18); see also Waffle House, 313 S.W.3d at 802–03 (recognizing continued viability of offensive-contact batteries).

A. Consent

The court of appeals concluded that Gordon's pleadings 3 asserted a claim for negligenceinstead of battery because, as Gordon alleged, the officers did not intend to injure him and he did not resist arrest. 389 S.W.3d at 607. The court reasoned that Gordon's compliance indicated his consent to the arrest, thereby negating the contact's offensive nature. See id. (noting that “the officers' application of the handcuffs did not...

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