Eugene Peiskee v. the City of Hearne ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-02-00218-CV

Eugene Peiskee et al.,

                                                                      Appellants

 v.

The City of Hearne,

                                                                      Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court # 01-06-16,237-CV

MEMORANDUM OPINION

      Appellant Eugene Peiskee has filed a motion to dismiss the appeal.  The motion complies with the relevant rule.  See Tex. R. App. P. 42.1(a)(1).

      On September 28, 2004, the Clerk notified the parties as follows:

Pursuant to Rules 42.3 and 44.3 of the Texas Rules of Appellate Procedure, you are notified that this cause is subject to dismissal for want of jurisdiction because it appears that the motion for new trial, and thus the notice of appeal, is untimely.  See Tex. R. App. P. 26.1, 42.3(a), 44.3; Tex. R. Civ. P. 329b(a).  Further, it appears from the record before this Court that the consolidation order of July 29, 2002, added new parties and claims to the cause below.  This raises the question of what effect the consolidation had on the finality of the judgment that is the subject of this appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). Therefore, this Court may dismiss this appeal unless, within fourteen days of the date of this letter, a response is filed showing grounds for continuing the appeal.

Finally, after requests for a status report regarding the referral to mediation, the parties advised the Court that they had settled the cause below.  As of this date, however, the parties have filed nothing that would dispose of this appeal as a result of the settlement.  The appellant, Eugene Peiskee, must notify the Court of the status of the mediation within fourteen days of the date of this letter.  The failure to file a timely response to this letter may also result in dismissal of this appeal.  See Tex. R. App. P. 42.3(c).

      No party has filed a response showing grounds for continuing the appeal, and Peiskee has not notified the Court of the status of the mediation. Accordingly, the appeal is dismissed. Costs are taxed against Peiskee.  See Tex. R. App. P. 42.1(d).

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Appeal dismissed

Opinion delivered and filed October 20, 2004

[CV06]

ssault.”  Hailey v. State, 50 S.W.3d 636, 640 (Tex. App.—Waco 2001), rev’d on other grounds, 87 S.W.3d 118 (Tex. Crim. App. 2002) (Hailey, 50 S.W.3d 636 citing Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 522 (Tex. App.—San Antonio 1996, writ denied)); accord Morgan v. City of Alvin, 175 S.W.3d 408, 418 (Tex. App.—Houston [1st Dist.] 2004, no pet.).  Under the Texas Penal Code, “[a] person commits an assault if he ‘intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.’”  Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 134 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (quoting Tex. Penal Code Ann. § 22.01(a)(3) (Vernon [Supp. 2006])). 

      In the City’s second issue, the City does not contend that the Williamses failed to plead a use of tangible personal property.  The City argues, rather, that the officers’ use of the weapons, as alleged by the Williamses, constituted assault.  The Williamses alleged that the officers “negligently began repeatedly shooting [Robert Williams, Sr.] with Tasers, shocking him over and over with 50,000 volts of electricity,” and that “[e]ach 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.”  Under the facts pleaded, though the facts being couched in terms of negligence, the officers intended physical contact with Williams which the officers would have reasonably believed that Williams would regard as offensive, and thus the officers committed assault on him.[4]

      The Williamses argue that they did not allege that “the officers intended to kill, or even seriously injure,” Robert Williams, Sr.  (Br. at 12.)  The officers did, however, assault Williams.

      Since the officers assaulted Robert Williams, Sr., their conduct falls within the assault exception to the waiver of sovereign immunity.  We sustain the City’s second issue.  Having sustained the City’s second issue, we need not consider the City’s third or fourth issues, concerning other exceptions to the waiver of sovereign immunity.

Supervision and Training or Product Liability

      In the City’s fifth issue, the City argues that the Williamses bring claims for negligent supervision and training and for product liability, and that the Tort Claims Act does not waive sovereign immunity for such claims.  The Act does not waive sovereign immunity for negligent supervision and training.  “[A]llegations of negligent supervision do not satisfy the limited waiver of immunity contained within the” Act.  Univ. of Tex. Health Sci. Ctr. v. Schroeder, 190 S.W.3d 102, 106 (Tex. App.—Houston [1st Dist.] 2005, no pet.); accord City of San Antonio v. Parra, 185 S.W.3d 61, 64 (Tex. App.—San Antonio 2005, no pet.); City of Garland v. Rivera, 146 S.W.3d 334, 338 (Tex. App.—Dallas 2004, no pet.); Gainesville Mem’l Hosp. v. Tomlinson, 48 S.W.3d 511, 514 (Tex. App.—Fort Worth 2001, pet. denied); see Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 583 (Tex. 2005); Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001).  A negligent-training claim alleges the use of “information,” which “is not tangible personal property, since it is an abstract concept that lacks corporeal, physical, or palpable qualities.”  Petta at 580; see Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2).

      The Williamses purport to distinguish Petta and Rivera on the grounds that the Williamses allege the negligent use of Tasers rather than of information.  Cf. Petta, 44 S.W.3d 575; Rivera, 146 S.W.3d 334.  For the reasons stated above, however, the Williamses’ claims for the use of the weapons fall within the assault exception to the waiver of sovereign immunity, and thus are barred by the Tort Claims Act.^[5]  See Rivera at 338-39.

      The Williamses concede that they “have not alleged and are not making a strict products liability claim against the City.”  (Br. at 22.)  In any case, the Tort Claims Act does not waive immunity for product-liability claims.  Nat’l Sports & Spirit, Inc. v. Univ. of N. Tex., 117 S.W.3d 76, 84 (Tex. App.—Fort Worth 2003, no pet.), disapproved of on other grounds, Loutzenhiser, 140 S.W.3d at 364-65; Loyd v. ECO Res., Inc., 956 S.W.2d 110, 125 (Tex. App.—Houston [14th Dist.] 1997, no pet.).

      The Tort Claims Act does not waive sovereign immunity for negligent-supervision and product-liability claims.  We sustain the City’s fifth issue.

CONCLUSION

      Having sustained the City’s specific second and fifth issues, we sustain the City’s general first issue. 

      We reverse and render judgment that the Williamses’ suit against the City is dismissed with prejudice. 

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Justice Vance issued an opinion on October 18, 2006)

      (Justice Reyna issued a dissenting opinion on October 18, 2006)

      (Judgment issued on October 18, 2006)

Reversed and rendered

Opinion delivered and filed October 30, 2006

[CV06]

---

[1]   A judgment was entered in this case on October 18, 2006.  I agreed with the judgment but I did not join Justice Vance’s plurality opinion containing, as it does, much dicta and extraneous matter. Historically, when the justices on this Court have split in three different directions, we have designated one opinion as “lead opinion,” designated the other opinion that agreed with the judgment as a “concurring opinion,” and designated the other opinion that did not agree with the judgment as a “dissenting opinion.”  Justice Vance refused to denominate his opinion as anything other than an “opinion” and contends that it is the opinion of the Court.  It is not.  In such a situation as this, where no opinion receives a majority of the votes of the justices on the Court, it is only a plurality opinion.  The parties were notified on October 19, 2006, that, contrary to the opinion dated October 18, 2006, I would issue an opinion in this appeal.  This opinion is intended to be “no longer than necessary to advise the parties of the court’s decision and the basic reasons for it.”  See Tex. R. App. P. 47.4.

[2]   The Williamses allege the use of “Tasers” manufactured by co-defendant Taser International, Inc.  According to the TASER International web site, “TASER devices are generically known as electronic control devices,” and are “conductive energy device[s].”  TASER Int’l, TASER™ Technology Summary with Q&As, http://‌www‌.taser‌.com/‌facts/‌qa‌.htm (last visited Oct. 27, 2006). 

TASER devices utilize compressed nitrogen to project two small probes . . . at a speed of over 160 feet per second.  These probes are connected to the TASER device by insulated wire.  An electrical signal is transmitted through the wires to where the probes make contact with the body or clothing, resulting in an immediate loss of the person’s neuromuscular control and the ability to perform coordinated action for the duration of the impulse.

Id.

[3]   We will leave for another day what may be a subtle distinction in our review between (1) pleading a claim under the provisions for waiver of sovereign immunity which is not excepted by another provision of the Tort Claims Act and (2) pleading a waiver and simultaneously negating the application of an exception to that waiver.  In this appeal, no party has argued that the failure to negate the application of an exception is reviewed as anything other than a failure to plead a claim within the scope of the waiver.

[4]   As a practical method of how to conduct such a review, it is often helpful to simply ignore the use of the term “negligence” in the pleading.  The remaining allegations can then be reviewed and classified as either an allegation of failing to act as a reasonable person or an allegation of conduct that would fall within an exception.

[5]   The Williamses also argue that they: “are not claiming that [the City]’s policy was negligently formulated.  Instead, the negligence arises from the implementation of that policy.”  (Br. at 20 (emphasis in orig.) (citing City of San Augustine v. Parrish, 10 S.W.3d 734, 740 (Tex. App.—Tyler 1999, pet. dism’d w.o.j.)).)  Parrish is distinguishable.  Parrish concerns the “police-protection” and “discretionary” exceptions to the waiver of sovereign immunity.  Parrish, 10 S.W.3d at 740; see Tex. Civ. Prac. & Rem. Code Ann. §§ 101.055(3), 101.056 (Vernon 2005).  The City’s fifth issue does not concern those exceptions to the waiver, but whether the Williamses’ claims come within the waiver at all.