the City of Watauga v. Russell Gordon , 57 Tex. Sup. Ct. J. 683 ( 2014 )

IN THE SUPREME COURT OF TEXAS
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NO. 13-0012
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THE CITY OF WATAUGA, PETITIONER,
v.
RUSSELL GORDON, RESPONDENT
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
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Argued December 4, 2013
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, accidentally caused 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 2013). 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. See TEX. 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
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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
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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 immunity1 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
1
“Sovereign immunity protects the State, state agencies, and their officers, while governmental immunity
protects subdivisions of the State, including municipalities and school districts.” Mission Consol. Indep. Sch. Dist. v.
Garcia, 253 S.W.3d 653, 655 n.2 (Tex. 2008).
4
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).
2
See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 801 n.4 (Tex. 2010) (noting several courts’ observation
that the elements of civil and criminal assault are the same); Forbes v. Lanzl, 9 S.W.3d 895, 900 (Tex. App.–Austin
2000, pet. denied) (noting that elements of assault are the same in both civil and criminal cases); Hogenson v. Williams,
542 S.W.2d 456, 458 (Tex. Civ. App.–Texarkana 1976, no writ) (same); see also Comm. On Pattern Jury Charges, Texas
Pattern Jury Charges—General Negligence § 6.6 (State Bar of Texas 2006) (using Penal Code’s definition of assault in
civil cases); but see Miller ex. rel. Miller v. HCA, Inc., 118 S.W.3d 758, 767 (Tex. 2003) (referring to a physician’s act
of operating without consent as a battery).
5
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 TORTS § 18); see also Waffle
House, 313 S.W.3d at 802-03 (recognizing continued viability of offensive-contact batteries).
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A. Consent
The court of appeals concluded that Gordon’s pleadings3 asserted a claim for negligence
instead 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 involve an offensive touching or contact of Gordon by
the officers as required to constitute the intentional tort of assault or battery”). The court further
suggested that Gordon’s consent distinguished the case from other cases involving alleged excessive
force or other offensive contact during an arrest. Id. at 607-08 (citing cases).
The City, of course, disagrees with the court’s analysis, arguing that Gordon’s compliance
was not consent in any relevant legal sense. The City submits that Gordon did not volunteer to be
arrested because he had no choice. See, e.g., TEX. PEN. CODE §§ 38.03-.04 (criminalizing resisting
3
The court of appeals summarizes the substance of Gordon’s pleadings in the following footnote:
[O]ne evening City of Watauga police pulled him over on suspicion of driving while intoxicated; after
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.
389 S.W.3d at 605 n.1.
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arrest). Moreover, the City argues that Gordon clearly did not consent to have the handcuffs applied
too tightly, else he would have no claim under any liability theory.
Several amici4 support the City’s position, arguing that using restraints on an arrestee is
undoubtedly offensive to a reasonable sense of personal dignity and technically a battery in the
absence of privilege. Amici point to the Restatement, which recognizes that an arrest “usually
involves conduct which, unless privileged, is an ‘assault’ or ‘battery’” but that where the privilege
exists “it justifies not only the confinement but also any conduct which is reasonably necessary to
effect the arrest.” RESTATEMENT (SECOND) OF TORTS § 118, cmt. b (1965).
We agree that Gordon’s compliance during the arrest was not legal consent to what otherwise
would have been a battery. Preeminent tort authorities have noted that “[a]s to false imprisonment
or battery, it is clear that yielding to . . . the assertion of legal authority . . . must be treated as no
consent at all, but submission against the plaintiff’s will . . .” W. KEETON, D. DOBBS, R. KEETON,
& D. OWEN, PROSSER & KEETON ON THE LAW OF TORTS, 121 (5th ed. 1984). Even were we to agree
that Gordon’s compliance constituted consent to reasonable force, his pleadings indicate that the
police exceeded that consent by applying the cuffs with excessive force.
Consent to contact “negatives the wrongful element of the defendant’s act, and prevents the
existence of a tort.” Id. at 112; see also Smith v. Holley, 827 S.W.2d 433, 437 n.3 (Tex. App.–San
Antonio 1992, writ denied) (quoting PROSSER & KEETON). But exceeding consent makes the
tortfeasor liable for the excess. See RESTATEMENT (SECOND) OF TORTS § 892A(4) (1965). Gordon’s
4
Amici include the Texas Municipal League, Texas City Attorney’s Association, Texas Association of
Counties, and Texas Association of Counties Risk Management Pool.
8
pleadings assert that he protested repeatedly that the handcuffs were too tight and causing him pain,
thus plainly terminating any assumed consent. The court of appeals’ reliance on Gordon’s “consent”
therefore fails to distinguish this case from other cases that have applied the Tort Claims Act’s
intentional-tort exception to arrests involving excessive-force allegations. See, e.g., Morgan, 175
S.W.3d at 418; Rivera, 146 S.W.3d at 337-38; Nuno, 94 S.W.3d at 789.
B. Intentional Tort or Unintended Injury
Gordon argues that his case is different from other cases involving excessive force in that
the police here did not intend to injure him. Quoting from Reed Tool Co. v. Copelin, Gordon further
submits that the “fundamental difference” between a negligent injury and an intentional injury is the
“specific intent to inflict injury.” 689 S.W.2d 404, 406 (Tex. 1985). Gordon reasons that, if a
specific intent to inflict injury is an intentional tort, an unintended or accidental injury must
conversely result from negligence. Although the City agrees that any injury here was accidental,
it does not agree that a worker’s compensation case like Reed Tool has any relevance to the City’s
immunity claim.
In Reed Tool, an employee argued that the Texas Worker’s Compensation Act should not
limit his recovery because his employer intentionally caused his injury. The employee maintained
that his employer exhibited that intent by willfully providing an unsafe workplace. Id. at 405. In
holding that the employee’s injury was not intentional, we reasoned that the failure to furnish a safe
workplace was not the kind of actual intention to injure that robs the injury of its accidental
character and thus avoids the exclusive remedy provision of the worker’s compensation act. Id. at
406. Distinguishing intentional injuries from accidents, we observed that an employer’s toleration
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of a dangerous condition might set the stage for an accidental injury but was not a “deliberate
infliction of harm comparable to an intentional left jab to the chin.” Id. at 407 (quoting 2A A.
LARSON, THE LAW OF WORKER’S COMPENSATION § 69.13 (1982). In line with that, we noted that
“direct assaults by an employer on an employee” would fall within the act’s intentional injury
exception, elaborating further that the fundamental difference between accidental and intentional
injuries was “the specific intent to inflict injury.” Id. at 406.
We agree with the City here that the distinction drawn in Reed Tool between intentional and
accidental injuries is not particularly helpful in distinguishing a battery from negligence. Although
a specific intent to inflict injury is without question an intentional tort, and many batteries are of this
type, a specific intent to injure is not an essential element of a battery.5 As already discussed, a
battery does not require a physical injury, and thus it follows that an intentional physical injury is
also not required.6 In fact, even a harmful or offensive contact that is intended to help or please the
plaintiff can be actionable as a battery.7 According to the Restatement:
If an act is done with the intention of inflicting upon another an offensive but not a
harmful bodily contact or of putting another in apprehension of either a harmful or
offensive bodily contact, and such act causes a bodily contact to the other, the actor
is liable to the other for a battery . . . although the act was not done with the intention
of bringing about the resulting bodily harm.
5
Fisher, 424 S.W.2d at 629-30; see also Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 650 (Tex.
App.–Houston [1st Dist.] 2005, pet. denied) (rejecting argument that an intent to injure is the only way to prevail on an
assault claim).
6
See W. KEETON, D. DOBBS, R. KEETON, & D. OWEN, PROSSER AND KEETON ON TORTS 36-37 (5th ed. 1984)
(“The defendant may be liable although . . . honestly believing that the act would not injure the plaintiff.”).
7
See id. at 41-42 (“[T]he Defendant may be liable even when intending only a joke, or even a compliment, as
where an unappreciated kiss is bestowed without consent or a misguided effort is made to render assistance”); see also
Gravis v. Physicians & Surgeons Hosp., 427 S.W.2d 310, 311 (Tex. 1968) (noting that battery action lies against
physician who, with intent to cure the plaintiff, operated without plaintiff’s consent).
10
RESTATEMENT (SECOND) OF TORTS § 16 (1965).
That the defendant intends “bodily contact that is ‘offensive’” is enough, then. 1 THE LAW
OF TORTS § 33 at 81; accord Fisher, 424 S.W.2d at 630. Liability in battery moreover extends to
harmful bodily contacts even though only offensive contacts were intended.8 Thus, while we agree
that intentional injuries are by definition a consequence of intentional torts, we do not agree with
the notion that accidental injuries are never a consequence.
IV. Excessive Force and the Texas Tort Claims Act
The gravamen of Gordon’s complaint against the City is that its police officers used
excessive force in effecting his arrest. Claims of excessive force in the context of a lawful arrest
arise out of a battery rather than negligence, whether the excessive force was intended or not. See
City of San Antonio v. Dunn, 796 S.W.2d 258, 261 (Tex. App.–San Antonio 1996, writ denied)
(noting that injuries caused by excessively tight handcuffing “certainly cannot be attributed to the
City as negligence”); Cameron Cnty. v. Ortega, 291 S.W.3d 495, 499 (Tex. App.–Corpus Christi
2009, no pet.) (allegations that deputy was negligent in his use of handcuffs and used excessive force
held indistinguishable from assault as defined in the penal code). The District of Columbia Court
of Appeals has explained the relationship between negligence and battery in this context:
While it may be, as the trial court here noted, that the officers may have mistakenly
believed that they needed to exert the amount of force that they did, that does not
affect the intentionality of the initial action or the objective excessiveness of the
force. An unwanted touching may in its inception be intentional, a battery, or
accidental, possibly negligent. But once it is found to be intentional, a battery
8
See, e.g., Caudle v. Betts, 512 So. 2d 389, 389 (La. 1987) (holding that liability in battery extends to
consequences which the defendant did not intend or even reasonably foresaw); see also 1 THE LAW OF TORTS § 45
(discussing the concept of extended liability or transferred intent applicable in battery but not in negligence).
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tortfeasor is liable for the full range of consequences, intended or not, including harm
and transferred liability. [citation omitted]. Therefore, where the excessive force is
the product of a battery, an unwanted touching inherent in any arrest, which escalates
in an unbroken manner into excessive force, the cause of action is a battery alone,
with the privilege having ended at the point where excessive force began. To instruct
in such circumstances on a separate and distinct tort of negligence is not only
doctrinally unsound but a potential source of jury confusion.
District of Columbia v. Chinn, 839 A.2d 701, 707 (D.C. 2003). We agree that when an arrest, lawful
in its inception, escalates into excessive-force allegations, the claim is for battery alone.
The court of appeals in this case is not the first Texas court to conclude that allegations of
unintended injury during an arrest state a negligence claim. See, e.g., City of Lubbock v. Nunez, 279
S.W.3d 739, 742-43 (Tex. App.–Amarillo 2007, pet. granted & dism’d by agr.) (concluding that the
death of an uncooperative suspect caused by a police officer’s repeated use of a taser was
unintentional and consequently the result of negligence). But again, we agree with Chinn that such
a conclusion is “doctrinally unsound.” Chinn, 839 A.2d at 707. The actions of a police officer in
making an arrest necessarily involve a battery, although the conduct may not be actionable because
of privilege. Love v. City of Clinton, 37 Ohio St. 3d 98, 524 N.E.2d 166, 167 n. 3 (Ohio 1988); cf.
Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1209 (10th Cir. 2006) (applying New Mexico law
to hold that use of handcuffs in a pranking incident is some evidence of contact that “offends a
reasonable sense of personal dignity”). The officer is privileged to use reasonable force. Petta, 44
S.W.3d at 579. But a police officer’s mistaken or accidental use of more force than reasonably
necessary to make an arrest still “arises out of” the battery claim. Dunn, 796 S.W.2d at 261. “As
the saying goes, there is no such thing as a negligent battery, since battery is defined to require an
intentional touching without consent not a negligent one.” 1 THE LAW OF TORTS § 31 at 77.
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The Texas Tort Claims Act waives governmental immunity for certain negligent conduct,
but it does not waive immunity for claims arising out of intentional torts, such as battery. TEX. CIV.
PRAC. & REM. CODE § 101.057(2). Because Gordon alleges that the police used excessive force in
his arrest, a claim that arises out of a battery, his pleadings do not state a claim for which
governmental immunity has been waived under the Tort Claims Act. We accordingly reverse the
court of appeals’ judgment and render judgment dismissing the case.
__________________________
John P. Devine
Justice
Opinion Delivered: June 6, 2014
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