COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00221-CV
City of Watauga § From the 17th District Court
§ of Tarrant County (17-252867-11)
v.
§ November 21, 2012
Russell Gordon § Opinion by Justice Walker
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
It is further ordered that appellant City of Watauga shall pay all of the costs
of this appeal, for which let execution issue.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Sue Walker
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00221-CV
CITY OF WATAUGA APPELLANT
V.
RUSSELL GORDON APPELLEE
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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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Appellee Russell Gordon filed suit against Appellant City of Watauga,
alleging that he suffered personal injuries when two City of Watauga Police
Officers, while arresting him and again while transporting him to jail, negligently
used tangible personal property—handcuffs—to pin his hands behind his back
too tightly.1 The City filed a plea to the jurisdiction, asserting that it was immune
1
The facts pleaded by Gordon were as follows: one evening City of
Watauga police pulled him over on suspicion of driving while intoxicated; after
2
from suit because the police officers’ conduct fell within the intentional tort
exception to the Texas Tort Claims Act’s (TTCA) waiver of sovereign immunity.
See Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (West 2011) (excluding from
TTCA’s limited waiver of immunity claims arising out of assault, battery, false
imprisonment, or any other intentional tort). The trial court signed an order
denying the City’s plea to the jurisdiction, and the City perfected this interlocutory
appeal.
In a single issue, the City contends that the trial court erred by denying its
plea to the jurisdiction. For the reasons set forth below, we will affirm the trial
court’s denial of the City’s plea to the jurisdiction.
The standard of review of an order granting a plea to the jurisdiction based
on governmental immunity is de novo. Tex. Natural Res. Conservation Comm’n
v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964
Gordon politely refused to perform field sobriety tests, the officers told him that
he would be placed under arrest and handcuffed; Gordon ―consented to the
arrest and allowed the officer to place the cuffs on him without any resistance‖;
Gordon repeatedly informed the officer that the handcuffs were too tight and
were hurting him, but the officer did not check the tightness of the handcuffs.
Gordon pleaded that at the police station, after he had refused to perform any
additional sobriety tests, he was told that he would be handcuffed and taken to
jail. Gordon again consented, and the placement of handcuffs occurred without
incident. Gordon told the officers that the handcuffs were too tight and were
causing him pain. Again, the officers did not check or loosen the handcuffs.
Gordon pleaded a negligence claim, pleading that the officers acted negligently
in their use of tangible personal property, specifically the use of handcuffs, in one
or all of the following ways: by failing to properly use the handcuffs as designed;
by failing to follow proper policies and procedures as to the proper use of
handcuffs; and by applying the handcuffs on him in a manner that was too tight
on his wrists.
3
S.W.2d 922, 928 (Tex. 1998), cert. denied, 526 U.S. 1144 (1999). It is the
plaintiff’s burden to allege facts that affirmatively establish the trial court’s subject
matter jurisdiction. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 446 (Tex. 1993). In determining whether the plaintiff has met this burden,
we look to the allegations in the plaintiff’s pleadings, accept them as true, and
construe them in favor of the plaintiff. See Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
However, 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 raised, as the trial court is required
to do. Id. at 227; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.
2000). In a case in which the jurisdictional challenge implicates the merits of the
plaintiff’s cause of action and the plea to the jurisdiction includes evidence, the
trial court reviews the relevant evidence to determine if a fact issue exists. See
Miranda, 133 S.W.3d at 227. If the evidence creates a fact question regarding
the jurisdictional issue, then the trial court cannot grant the plea to the
jurisdiction, and the fact issue will be resolved by the factfinder. Id. This
standard generally mirrors that of a summary judgment under Texas Rule of Civil
Procedure 166a(c). Id. at 228.
Under the doctrine of sovereign immunity, the State is not liable for the
negligence of its employees absent a constitutional or statutory provision for
liability. Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994).
4
Statutory provisions authorizing imposition of liability on the State for the
negligence of its employees are set forth in section 101.021(2) of the TTCA; that
section expressly waives sovereign immunity for ―personal injury and death so
caused by a condition or use of tangible personal . . . 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(2) (West
2011). Section 101.021(2)’s limited waiver of sovereign immunity does not apply,
however, to claims ―arising out of assault, battery, false imprisonment, or any
other intentional tort.‖ Id. § 101.057.
Here, the City conceded in its brief and during oral argument that the
police officers’ use of handcuffs constitutes the use of tangible personal property
for purposes of section 101.021(2)’s limited waiver of immunity. The City argues,
however, that the evidence it submitted in support of its plea to the jurisdiction
established that the handcuffs were not negligently used but instead were
intentionally used. The City points to the affidavits of the police officers that the
City filed in support of its plea to the jurisdiction and argues that the officers
applied the handcuffs to Gordon exactly as they intended to do and in
accordance with their training, so that ―the actions underlying Plaintiff’s claims
are intentional acts rather than potential acts of negligence.‖ The City asserts
5
that the police officers thus committed intentional torts2 and that the TTCA’s
limited waiver of immunity does not apply to intentional torts. See id.
Premised on the police officers’ affidavits stating that they had intentionally
applied the handcuffs to Gordon and that the handcuffs were not used ―in any
manner other than exactly how [the officers] intended them to be used and
applied‖ and were applied ―[a]s per training,‖ the City argues that this intent—that
the officers intended their acts as opposed to intended to cause the injuries at
issue—qualifies their conduct in applying the handcuffs as an intentional tort. In
its brief, the City thoroughly analyzes and attempts to delineate and distinguish
between the case law holding, according to the City, that to qualify as an
intentional tort, the state actor must have only intended his act3 and the case law
holding that to qualify as an intentional tort, the state actor must have intended
2
For example, the City argues that
[e]ven though the Petition purports to plead a negligence
cause of action, the evidence submitted by the Defendant in the trial
court establishes that the acts complained of (placing the handcuffs,
double locking them and checking by running a finger between the
handcuffs and the suspect’s wrist) were purposeful and intentional.
3
The City relies on City of Waco v. Williams, 209 S.W.3d 216 (Tex. App.—
Waco 2006, pet. denied); Harris County v. Cabazos, 177 S.W.3d 105 (Tex.
App.—Houston [1st Dist.] 2005, no pet.); City of Garland v. Rivera, 146 S.W.3d
334 (Tex. App.—Dallas 2004, no pet.); and City of Laredo v. Nuno, 94 S.W.3d
786 (Tex. App.—San Antonio 2002, no pet.).
6
the injury he caused.4 The City urges us to resolve this purported split of
authority and argues that only the former intent is required.
We need not decide in this case whether a police officer must have
intended only his act or must have intended the injury he caused for a tort that he
commits to fall within section 101.057’s intentional tort exception to section
101.021(2)’s limited waiver of immunity. Gordon pleaded facts supporting his
claim that the police officers’ negligent use of tangible personal property caused
his injuries; he did not plead facts that would support an intentional tort. Gordon
specifically pleaded that, both when he was arrested and when he was
transported from the police station to the jail, he consented to the application of
handcuffs and did not resist their application. Thus, under Gordon’s pleadings,
the officers’ application of the handcuffs did not involve an offensive touching or
contact of Gordon by the officers as required to constitute the intentional tort of
assault or battery. See Tex. Penal Code Ann. § 22.01(a)(3) (West 2011)
(assault); Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629 (Tex. 1967)
(battery). Because Gordon did not plead facts showing that the police officers
committed an assault, battery, false imprisonment, sexual assault, wrongful
death or injury via excessive force, or other intentional tort, this case is
distinguishable from the cases relied upon by the City. See Tex. Dep’t of Pub.
Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001) (holding that plaintiff had
4
The City identifies this line of cases as the Reed Tool line of cases. See
Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex. 1985).
7
pleaded intentional tort by pleading assault and battery claim against officer so
that claims against State predicated on officer’s conduct fell within intentional tort
exclusion from TTCA’s limited waiver of immunity); City of Fort Worth v. Chattha,
No. 02-11-00342-CV, 2012 WL 503223, at *6 (Tex. App.—Fort Worth Feb. 16,
2012, no pet.) (mem. op.) (holding that plaintiff had pleaded intentional tort of
battery by pleading that officer performed a ―take-down‖ maneuver to force
plaintiff to the ground); City of Waco, 209 S.W.3d at 220–24 (holding that
plaintiff’s pleading—that arresting officers utilized excessive deadly force in
decedent’s arrest by repeatedly Tasering decedent as he lay helpless on the
ground—pleaded an intentional tort); Harris Cnty., 177 S.W.3d at 112 (holding
that plaintiff’s pleading—that police officer approached vehicle with gun drawn,
―walked directly to the driver’s side door of the vehicle occupied by the Plaintiff
and shot the Plaintiff in the neck‖—pleaded an intentional tort); City of Garland,
146 S.W.3d at 337–38 (holding that plaintiff’s pleading—that police used
excessive and deadly force to arrest decedent that included the use of pepper
spray, handcuffs, a K-9 police service dog, and other departmentally issued—
properly constituted claim for intentional tort); City of Laredo, 94 S.W.3d at 789
(holding that plaintiff had pleaded intentional tort of excessive force and assault
by pleading that officer banged her vehicle with his hand, dragged her from the
vehicle, threw her against the side, hit her in the back with his handcuffs, kicked
her on the legs, hit her face against the car, grabbed her breasts, rubbed his
private part against her behind, and reapplied handcuffs to her wrist and leg).
8
Likewise, the particular police officers’ affidavits filed by the City in this
case—which indicate that they intentionally applied the handcuffs to Gordon
―exactly as they intended to do‖ and in ―accordance with their training,‖ do not
plead facts indicating that Gordon’s negligent-use-of-personal-property claim is
actually an intentional tort claim. Each officer stated in his affidavit, in pertinent
part, that Gordon was handcuffed with his hands behind his back using ASP
brand handcuffs and
[a]s per training, I checked the handcuffs to insure they were double
locked . . . and not too tight. I check for over tightness by running a
finger between the handcuffs and the suspect’s wrists. . . . The
checks for double locking and tightness are checks which were
taught to me in the basic police academy at the beginning of my law
enforcement career and are procedures which I follow every time a
prisoner is handcuffed.
....
I applied the handcuffs in the manner described and
conducted the double-lock check and fitness check with my finger
intentionally. At no time were the handcuffs which were applied to
Mr. Gordon used in any manner other than exactly how I intended
them to be used and applied.
These affidavits state no jurisdictional facts establishing an intentional tort;
no facts are stated indicating that the police officers committed assault, battery,
false imprisonment, sexual assault, wrongful death or injury via excessive force,
or other intentional tort. Accord Tex. Penal Code Ann. § 22.01(a)(1), (2), (3)
(elements of assault), § 22.011 (West 2011) (elements of sexual assault); Fisher,
424 S.W.2d at 629–30 (elements of battery); Sears, Roebuck & Co. v. Castillo,
693 S.W.2d 374, 375–76 (Tex. 1985) (elements of false imprisonment); City of
9
Laredo, 94 S.W.3d at 789 (explaining that use of excessive force to arrest
someone is ―intentional tortious act‖). Instead, the officers’ affidavits state that
they properly applied the handcuffs to Gordon, just as they intended to, in
accordance with their training. Thus, to the extent the police officers’ affidavits
constituted jurisdictional evidence, that evidence implicated the merits of
Gordon’s claim (whether or not the handcuffs were properly or negligently
applied) and, at the very most, raised a fact issue on whether the officers
negligently applied the handcuffs to Gordon. See Miranda, 133 S.W.3d at 227.
To hold otherwise would completely eviscerate the limited waiver of immunity set
forth in section 101.021; virtually every time a state actor allegedly negligently
used tangible personal property, section 101.021’s specific, limited waiver of
immunity for this type of conduct could be defeated based solely on an affidavit
by the state actor alleging that he or she in fact intentionally intended to use the
tangible personal property and intentionally intended to use it in the manner that
he or she used it. Accordingly, because the jurisdictional evidence presented by
the City—consisting of only the two affidavits by the police officers who
handcuffed Gordon—implicated the merits of Gordon’s negligent-use-of-tangible-
personal-property claim and, at most, established a fact issue on whether the
officers negligently applied the handcuffs to Gordon, the trial court properly
denied the City’s plea to the jurisdiction. See Miranda, 133 S.W.3d at 277.
We overrule the City’s sole issue, and we affirm the trial court’s denial of
the City’s plea to the jurisdiction on Gordon’s claim for personal injuries based on
10
the police officers’ allegedly negligent use of tangible personal property—the
handcuffs.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
DELIVERED: November 21, 2012
11