CITY OF WACO, Aрpellant, v. Robert Earl WILLIAMS, Jr. and Maggie Williams Walton, Individually and on behalf of the Estate of Robert Earl Williams, Sr., Deceased, Appellees.
No. 10-06-00072-CV.
Court of Appeals of Texas, Waco.
Oct. 18, 2006.
Oct. 30, 2006.
Opinion by Chief Justice Gray
Here, interpreting the totality of the circumstances reflected in the affidavit in a common sense manner, we conclude that the affidavit did not rely on conclusory statements to such an extent that it was insufficient to show probable cause. As noted, the affidavit, taken as a whole, demonstrates that Detective Sunley had reason to believe that appellant was taking “photograph[s][of] another without that person‘s consent with the intent to gratify his sexual desire.” Detective Sunley‘s affidavit explains the basis for his belief, namely, the fact that: (1) the pictures on appellant‘s camera “were mostly those of young female children showing them only from the waist down“; (2) “it was obvious the photos were taken without the knowledge or consent of the people“; (3) appellant admitted taking pictures of girls on previous occasions; and (4) appellant stated that he downloaded pictures of girls onto his computer. It is true, as appellant notes, that the affidavit does not describe the nature of the pictures appellant admits to downloading, but based on the totality of the circumstances, one could reasonably infer that the pictures were probably similar to those described in the affidavit. Similarly, while the affidavit is somewhat threadbare in terms of delineating how appellant‘s photographs were intended to arouse or sexually gratify the desire of another person, one could reasonably infer that pictures depicting the “[clothed] buttocks of several female beach goers” are probably intended to elicit some form of sexual arousal or gratification. We thus conclude that the affidavit is not insufficient to show probable cause due to excessive reliance on conclusory statements.
Having found, contrary to appellant‘s claims, that Detective Sunley‘s affidavit was not fatally flawed due to (1) material omissions, (2) staleness, or (3) conclusory statements, we overrule appellant‘s sole point of error.
CONCLUSION
We affirm the judgment of the trial court.
Vic Feazell, Feazell Tighe LLP, Austin, Douglas D. Fletcher, Fletcher & Springer LLP, Dallas, for appellees.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
BILL VANCE, Justice.
In this interlocutory appeal of the trial court‘s denial of the city‘s plea to the
Background
The plaintiffs, the children of Robert Earl Williams, Sr., the decedent, sued the City of Waco under the
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 а 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 dеsigned 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 оfficers, 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 officеrs 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
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.
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.”
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 soverеign 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 Laredо 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 exceptiоn 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 City of San Augustine v. Parrish, 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
Finally, and perhaps most instructive, is Durbin v. City of Winnsboro, 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 аn 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 thаt 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
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. 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. Pitonyаk, 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
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 implemеntation 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.
Chief Justice GRAY concurs in the judgment only, without a separate opinion.
Justice REYNA dissenting.
FELIPE REYNA, Justice, dissenting.
According to the lead opinion, the City of Waco‘s immunity from suit is not waived because the Williamses’ petition alleges only an intentional tort. Because I believe Texas law requires that a person intend to cause injury to be liable for an intentional tort and because the Williamses allege the commission of a reckless assault (which is not an intentional tort), I respectfully dissent.
When we review an order granting or denying a plea to the jurisdiction, “[w]e construe the pleadings liberally in favor of the plaintiffs and look to the pleaders’ intent.” Texas Dep‘t Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). “We indulge every reasonable inference and resolve any doubts in the [plaintiffs‘] favor.” Id. at 228.
Under the
There are two lines of authority regarding the intent required to invoke the intentional tort exclusion of section 101.057(2). The first of these relies primarily on a workers’ compensation decision by the Supreme Court, Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex.1985). In Reed Tool, the Supreme Court addressed what is required to establish an “intentional injury” for which the
Citing section 8A of the
The fundamental difference between negligent injury, or even grossly negligent injury, and intentional injury is the specific intent to inflict injury. The Restatement Second of Torts defines intent to mean that “the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.”
Reed Tool, 689 S.W.2d at 406 (quoting
All consequences which the actor desires to bring about are intended, as the word is used in this Restatement. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor‘s conduct loses the character of intent, and becomes mere recklessness, as defined in § 500. As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence, as defined in § 282. All three have their important place in the law of torts, but the liability attached to them will differ.
The
On a curve in a narrow highway A, without any desire to injure B, or belief that he is substantially certain to do so, recklessly drives his automobile in аn attempt to pass B‘s car. As a result of this recklessness, A crashes into B‘s car, injuring B. A is subject to liability to B for his reckless conduct, but is not liable to B for any intentional tort.
Applying the reasoning of the
At least two courts of appeals have applied this reasoning to determine whether the plaintiffs in the cases before them had alleged intentional torts for which immunity was not waived under section 101.057(2). See Durbin, 135 S.W.3d at 324-25; Bridges v. Robinson, 20 S.W.3d 104, 114 (Tex.App.-Houston [14th Dist.] 2000, no pet.), overruled on other grounds by Telthorster v. Tennell, 92 S.W.3d 457, 464 (Tex.2002). Thus in Durbin, the appellate court held that the plaintiff‘s allegation that the defendant police officer failed to use reasonable care in operating his patrol car, which struck the decedent‘s motorcycle, was not an allegation of an intentional tort because there was no allegation that the officer intended to injure or kill the decedent. See Durbin, 135 S.W.3d at 324-25 (citing Reed Tool, 689 S.W.2d at 406).
Similarly in Bridges, the appellate court held that the allegation that the defendant officers “negligently employed hogtie restraints” was not an allegation of an intentional tort because there was no allegation or evidence that the officers intended to injure or kill the decedent. See Bridges, 20 S.W.3d at 114 (citing Reed Tool).
Conversely, in Texas Department of Public Safety v. Petta and similar cases, appellate courts have held that the plaintiffs in those cases alleged intentional torts, even if their claims were nominally framed as negligence claims. 44 S.W.3d 575, 580-81 (Tex.2001).
Petta involved a confrontation between a motorist, Petta, who disputed the basis for a traffic stop and the officer, Rivera. Id. at 577.
Rivera tried to open the door and started yelling obscenities at her. The incident escalated as he began beating the window with his nightstick and threatеning to break the glass. At this point, Rivera stopped and called a tow truck and moved his cruiser in front of her car, but she pulled around him, apparently then stopping. Rivera again approached her window and ordered her to get out. When she again refused, Rivera allegedly aimed his handgun at her and threatened to kill her. Petta then fled in her car, and Rivera pursued. During the course of the pursuit, Rivera shot at her tires more than once. He also aimed his shotgun at her while he was driving, but a civilian observer in Rivera‘s cruiser, James Cleland, took the shotgun away. Id. at 577-78.
The Supreme Court held, “The specific conduct—hitting the window, calling a tow truck, aiming the gun, blocking Petta in with the cruiser, and firing at Petta‘s tires—is clearly intentional.” Id. at 580. The Court did not address whether the officer intended to injure Petta. However, as the court observed in Durbin, intent to injure could be readily inferred from the officer‘s conduct. See Durbin, 135 S.W.3d at 324-25.
In other cases following Petta, including one relied on by the City of Waco, the appellate courts considered not only whether the officers in those cases had engaged in intentional conduct but also whether they intended to injure the plaintiffs. See Cabazos, 177 S.W.3d at 111-13; Pineda v. City of Houston, 175 S.W.3d 276, 282-83 (Tex.App.-Houston [1st Dist.] 2004, no pet.); Eastland County Cooр. Dispatch v. Poyner, 64 S.W.3d 182, 199 (Tex.App.-Eastland 2001, pet. denied). Each of these cases (and Petta) involved an officer‘s use of a firearm. See Petta, 44 S.W.3d at 578; Cabazos, 177 S.W.3d at 111; Pineda, 175 S.W.3d at 278; Poyner, 64 S.W.3d at 189. The only reasonable inference to be drawn from the use of a firearm is that the shooter intends to injure or kill. See Durbin, 135 S.W.3d at 324-25; see also Miranda, 133 S.W.3d at 228 (in reviewing a ruling on a plea to the jurisdiction, “[w]e indulge every reasonable inference” in favor of the plaintiff).
Further support exists for the Durbin approach in the criminal law, which Texas courts have long recognized establishes the same elements for assault as the civil law. See Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 649 (Tex.App.-Houston [1st Dist.] 2005, pet. denied); Baribeau v. Gustafson, 107 S.W.3d 52, 60 (Tex.App.-San Antonio 2003, pet. denied); Hogenson v. Williams, 542 S.W.2d 456, 458 (Tex.Civ.App.-Texarkana 1976, no writ); Tex. Bus Lines v. Anderson, 233 S.W.2d 961, 964 (Tex.Civ.App.-Galveston 1950, writ ref‘d n.r.e.).
Under the criminal law, assault is a result-oriented crime. Ford v. State, 38 S.W.3d 836, 844 (Tex.App.-Houston [14th Dist.] 2001, pet. ref‘d); Juneau v. State, 49 S.W.3d 387, 392 (Tex.App.-Fort Worth 2000, pet. ref‘d). Thus, “it is not enough for the State to prove that the defendant engaged in conduct with the requisite criminal intent, the State must also prove that the appellant caused the result with the requisite criminal intent.” Ford, 38 S.W.3d at 844 (citing Cook v. State, 884 S.W.2d 485, 490 (Tex.Crim.App.1994)).
For these reasons, I believe that Durbin and similar cases correctly hold that an intentional tort is committed only when the actor intends to cause injury. Construing the pleadings liberally and indulging all reasonable inferences in the Williamses’ favor, I would hold that the Williamses do not allege that the officers committed an intentional tort because they do not allege that the officers intended to injure the decedent.
Finally, even assuming that “[t]here is, properly speaking, no such thing as negligent assault,” the Williamses allege that the officers acted recklessly. An assault can be committed recklessly. See Hall, 177 S.W.3d at 649-50; Baribeau, 107 S.W.3d at 60-61. The section 101.057(2) exclusion applies only to intentional torts. See
Thus, even assuming the Williamses allege the commission of an intеntional tort, because they also allege the commission of a reckless assault,2 their lawsuit should be permitted to proceed. See Delaney, 835 S.W.2d at 60; Henry, 52 S.W.3d at 441.
Today, a majority of the Court reverses the trial court‘s denial of the City of Waco‘s plea to the jurisdiction and in effect renders judgment that the City is immune from suit. For the reasons stated, I respectfully dissent.
TOM GRAY, Chief Justice.