City of Waco v. Robert Earl Williams, Jr. and Maggie Williams Walton, Individually and on Behalf of the Estate of Robert Earl Williams, Sr.

IN THE TENTH COURT OF APPEALS No. 10-06-00072-CV 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 From the 414th District Court McLennan County, Texas Trial Court No. 2005-3409-5 Opinion In this interlocutory appeal of the trial court’s denial of the city’s plea to the 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 tort[2] 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, 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 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 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 not be circumvented merely by alleging negligent hiring, negligent training, and negligent failure to train). City of San Antonio v. Dunn, 796 S.W.2d 258, 261 (Tex. App.—San Antonio 1990, writ denied) (plaintiff’s claim that officer wrongfully arrested him and negligently applied handcuffs so tightly that they caused discomfort and swelling to wrist arose out of intentional tort).[4] “If a plaintiff pleads facts which amount to an intentional tort, no matter if the claim is framed as negligence, the claim generally is for an intentional tort and is barred by the TTCA. A plaintiff cannot circumvent the intentional tort exception by couching his claims in terms of negligence.” Cabazos, 177 S.W.3d at 111 (citations omitted). In response, the Williamses cite three cases that they claim support the conclusion that they have not pled an intentional tort. In Parrish v. City of San Augustine, 10 S.W.3d 734 (Tex. App.—Tyler 1999, pet. dism’d w.o.j.), a wrongful-death case arising from a police shooting, the city appealed both the trial court’s denial of its plea to the jurisdiction on sovereign immunity and its motion for summary judgment on official immunity. In upholding the trial court’s denial of the plea, the court considered only the plaintiffs’ pleadings; it rejected the city’s reliance on the summary judgment evidence. Id. at 739-40. Relying solely on the pleadings—in which the plaintiffs alleged that the decedent was “‘negligently shot and killed’” by a police officer who negligently used his pistol when “‘such use was not reasonable or reasonably necessary to control or subdue a citizen and negligently endangered those in the vicinity’”—the court held that the intentional-tort exception did not bar the suit.[5] Id. In Bridges v. Robinson, 20 S.W.3d 104 (Tex. App.—Houston [14th Dist.] 2000, no pet.), overruled in part on other grounds by Telthorster v. Tennell, 92 S.W.3d 457, 464 (Tex. 2002), a man involved in an altercation at a department store was confronted by security guards and Houston police officers, who dragged the man to an office, “hog-tied” him, broke his ribs, and placed him on the curb outside; he later died from his injuries. In the wrongful-death suit against the city under the TTCA, the city moved for summary judgment, contending that, under section 101.057, “hog-tying” and restraining the deceased was an intentional tort in the category of false arrest, false imprisonment, and assault and was not actionable under the TTCA. The court stated that “[t]he fundamental difference between a negligence injury and an intentional injury is the specific intent to inflict injury.” Id. at 114 (citing Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985)).[6] The plaintiffs had pled that the police officers had negligently employed “hog-tie” restraints, and there was no summary judgment proof the officers intended to injure or kill the deceased. Id. Relying primarily on Reed Tool, the court concluded the city had not established the plaintiffs’ claims as intentional torts; therefore, section 101.057 was inapplicable. Id. Finally, and perhaps most instructive, is Durbin v. City of Winnsboro. Durbin, 135 S.W.3d 317. There the parents of the decedent sued the city after one of its officers bumped the decedent’s motorcycle with his patrol car in an attempt to stop the decedent during a chase. The decedent wrecked, and the patrol car ran over and killed him. After the trial court denied the city’s plea to the jurisdiction and motion for summary judgment on the intentional-tort exception, on appeal the city argued that the plaintiffs had pled an intentional act—the officer’s bumping of the decedent’s motorcycle—and thus an intentional tort under section 101.057. The court’s analysis included a discussion of Petta, Nuno, and Huong, noting how the intent to injure could be inferred from the alleged intentional acts in those cases. Id. at 322-24. But the court also examined and adopted the analyses of Bridges and Reed Tool, noting their focus on whether the actors intended to cause injury. Id. at 324. Applying that focus to the plaintiffs’ allegation that the officer intended to bump the decedent’s motorcycle—and being unable to infer an intent to injure from that act—the court found that the plaintiffs’ claims did not arise from an intentional tort. Id. at 325. Under both lines of cases, we find that the Williamses’ claims allege an intentional tort and that section 101.057 applies to except the claims from the TTCA’s waiver of sovereign immunity. Plainly, under the Petta line of cases, the Williamses have alleged claims that “arise out” of the officers’ use of force—repeated Tasering—against the decedent, which allege the intentional tort of assault.[7] “‘There is, properly speaking, no such thing as a negligent assault.’” Medrano, 989 S.W.2d at 145 n.2 (quoting W. Page Keeton, et al., Prosser and Keeton on The Law of Torts, § 10, at 46 (5th ed. 1984)); see also Tarrant County Hosp. Dist. v. Henry, 52 S.W.3d 434, 441 (Tex. App.—Fort Worth 2001, no pet.) (“The plaintiff must allege facts that, if true, would support a negligence claim apart from a claim for an intentional tort.”). If we were to apply the Reed Tool/Durbin line of cases,[8] we would infer from the act of Tasering an intent to cause an injury that is more than mere offensive touching.[9] An intentional tort requires a specific intent to inflict injury, Reed Tool, 689 S.W.2d at 406, but an actor need not intend the specific injury complained of for an intentional tort to be committed. See Texas State Technical College v. Wehba, 2006 WL 572022, at *2 (Tex. App.—Eastland Mar. 9, 2006, no pet. h.) (mem. op.). Although the officers may not have intended the result—Mr. Williams’s death—the pleadings allege that they did intentionally shoot him repeatedly with Tasers, and we would infer from their acts that they did intend an injury that is more than mere offensive touching. We sustain Waco’s first and second issues. In issues three and four, Waco asserts that the Williamses’ claims of negligent implementation of policy and negligent training fail because the TTCA does not waive sovereign immunity for its exercise of discretionary powers and for claims arising from the method of providing police protection. Although the Tort Claims Act waives sovereign immunity for claims that an officer negligently carried out governmental policy, Petta, 44 S.W.3d at 580, the negligent implementation theory of liability does not itself waive immunity. Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W.3d 326, 342 (Tex. App.—Corpus Christi 2002, no pet.). It arises only after a plaintiff has established a waiver of immunity under some other provision of the Texas Tort Claims Act. Id. Accordingly, a plaintiff has to state a waiver of immunity under some provision of section 101.021 of the civil practice and remedies code before she can invoke a claim of negligent implementation of policy. Rivera, 146 S.W.3d at 338. A claim of negligent training also does not state a claim under the TTCA because it does not allege an injury resulting from the “condition or use of tangible personal or real property.” Id. at 338-39 (citing Petta, 44 S.W.3d at 580); see Nuno, 94 S.W.3d at 789-90. The trial court erred in not granting Waco’s plea to the jurisdiction on the Williamses’ claims for negligent implementation of policy and negligent training; they have not shown a waiver of sovereign immunity under the TTCA. We sustain issues three and four. We need not address issue five, as the Williamses concede they are not suing Waco for strict products liability. Conclusion We reverse the trial court’s denial of Waco’s plea to the jurisdiction and dismiss the case against the City of Waco. Tex. R. App. P. 43.2. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurs in the judgment only, without a separate opinion.) (Justice Reyna dissenting) Reversed; case dismissed Opinion delivered and filed October 18, 2006 [CV06] [1] “A ‘taser’ is an electronic device used to subdue violent or aggressive individuals. By pressing a lever, a high voltage electrical current is transmitted through a wire to the target.” Nicholson v. Kent County Sheriff’'s Dept., 839 F. Supp. 508, 515, n.4 (W.D. Mich. 1993). Taser darts are “designed to stun a combative suspect.” Koon v. United States, 518 U.S. 81, 86, 116 S.Ct. 2035, 2041, 135 L.Ed.2d 392 (1996). Another court described a taser gun as follows: [A] taser gun is a Conducted Energy Weapon that uses propelled wire to conduct energy to a remote target, thereby controlling and overriding the body’s central nervous system. The taser gun fires two probes up to a distance of twenty-one feet from a replaceable cartridge. These probes are connected to the taser gun by high-voltage insulated wire. When the probes make contact with the target, the taser gun transmits electrical pulses along the wires and into the body of the target, through up to two inches of clothing. Draper v. Reynolds, 369 F.3d 1270, 1273 n.3 (11th Cir.), cert. denied, 543 U.S. 988 (2004). [2] We express no opinion about the merits of the claim. [3] The Williamses have also sued Taser International, Inc. for products liability and Jerry R. Staton for negligent training of Waco police officers in the use of Tasers. [4] Federal courts in Texas have applied the same analysis in finding no waiver of immunity. See, e.g., Gonzales v. City of Corpus Christi, 2005 WL 3058168, at *11-12 (S.D. Tex. Nov. 9, 2005) (despite claim of alleged misuse of handcuffs and leg irons, “all of plaintiff's damages arise out of the claimed instance of excessive force”); Holland v. City of Houston, 41 F. Supp. 2d 678, 713 (S.D. Tex. 1999) (“Where the essence of a claim under the TTCA arises from an intentional tort, allegations of negligence are insufficient to avoid the § 101.057 exception to liability.”); Huong v. City of Port Arthur, 961 F. Supp. 1003, 1008-09 (E.D. Tex. 1997) (“Plaintiffs cannot circumvent the intentional tort exception to waiver of municipal liability by simply pleading negligence when the shooting event upon which they base their claims is actually an intentional tort.”). [5] The supreme court has since held that a court deciding a plea to the jurisdiction is not required to look solely to the pleadings, but may consider evidence and must do so when necessary to resolve the jurisdictional issue raised. Texas Dep’t Parks & Wildlife v. Miranda, 133 S.W.3d 217, 223-24 (Tex. 2004); Bland ISD v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000). [6] In Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex. 1985), the plaintiff sued her husband’s employer for loss of consortium for injuries he had sustained on the job. Reed Tool contended the suit was barred by the Workers’ Compensation Act; the plaintiff alleged her suit was not barred under the Act’s intentional-injury exception because Reed Tool had intentionally caused her husband’s injury by requiring him to operate a machine that Reed Tool knew was unsafe. Noting the fundamental difference between a negligent injury and intentional injury is the specific intent to inflict injury, the court held that the intentional failure to furnish a safe place to work does not rise to the level of intentional injury except when the employer believes its conduct is substantially certain to cause the injury. Id. at 406-07. [7] The elements of assault are the same in both civil and criminal cases. Morgan v. City of Alvin, 175 S.W.3d 408, 418 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (citing Forbes v. Lanzl, 9 S.W.3d 895, 899 (Tex. App.—Austin 2000, pet. denied)). A person commits an assault by (1) intentionally, knowingly, or recklessly causing bodily injury to another; (2) intentionally or knowingly threatening another with imminent bodily injury; or (3) intentionally or knowingly causing physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Id. (citing Tex. Pen. Code Ann. § 22.01 (Vernon 2004); Forbes, 9 S.W.3d at 900; Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 522 (Tex. App.—San Antonio 1996, pet. denied)). “Bodily injury” means “physical pain, illness, or any impairment of physical condition”; it is a broad term encompassing even relatively minor physical contacts so long as they constitute more than mere offensive touching. Forbes, 9 S.W.3d at 900 (quoting Tex. Pen. Code Ann. § 1.07(a)(8)). [8] We believe the Petta analysis is the better approach. [9] The Williamses candidly concede an assault in their brief, acknowledging that the officers “certainly intended to cause contact between the Taser prongs and Mr. Williams’ body,” yet denying that they allege the officers “intended to kill, or even seriously injury, Mr. Williams.” (Brief of Appellees, at 12). They also describe Tasers as “providing no greater effect than a skin-level shock which briefly incapacitates muscles.” (Id. at 11). The Williamses also factually pled assault, alleging that the officers tackled Mr. Williams and then “negligently began shooting him with Tasers, shocking him over and over with 50,000 volts of electricity.” The Williamses pled that Mr. Williams “was killed by multiple electric shocks from Tasers wielded by Waco police officers,” and they quoted from the autopsy report, which termed his death a homicide caused by “multiple electrical shocks during attempted restraint by police.”