The CITY OF WATAUGA, Petitioner, v. Russell GORDON, Respondent.
No. 13-0012.
Supreme Court of Texas.
Argued Dec. 4, 2013. Decided June 6, 2014.
To reverse a judgment for factual insufficiency, the court of appeals must detail all the relevant evidence and explain why it is insufficient to support the judgment. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998). Although this Court itself lacks jurisdiction to determine questions of factual sufficiency, we nevertheless have the “responsibility to ensure that the intermediate appellate courts follow applicable legal standards in making their review of the evidence.” Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 29 (Tex.1993). Thus, we are not powerless to correct a clearly erroneous review of the evidence. Our review, however, checks only that the intermediate court detailed all of the relevant evidence and clearly stated why that evidence was factually insufficient. Id. at 28. When an appellate court fails to apply this standard, we may reverse and remand for the court to reexamine the evidence under the appropriate standard.
A judgment terminating parental rights is factually sufficient when “the evidence is such that a reasonable jury could form a firm belief or conviction that grounds exist for termination.” In re C.H., 89 S.W.3d 17, 18-19 (Tex.2002). The court of appeals here applied the appropriate standard, reviewed all the evidence, and explained its insufficiency. Contrary to the Department‘s contention, the court did not apply an erroneous standard of review.
The court of appeals’ judgment is accordingly affirmed.
Joe C. Tooley, Law Office of Joe C. Tooley, Rockwall, TX, for Petitioner.
Kenneth Peter Trosclair, Wilson, Trosclair & Lovins, PLLC, Dallas, TX, for Respondent.
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.
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.
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.,
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.”
III. The Underlying Claim: Negligence or Battery
The City of Watauga, as a political subdivision of the State, is protected from tort claims by governmental immunity.1 Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.1998). Governmental immunity 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.
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 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.”
- intentionally, knowingly, or recklessly causes bodily injury to another ...;
- intentionally or knowingly threatens another with imminent bodily injury ...; or
- 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.
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).
A. Consent
The court of appeals concluded that Gordon‘s pleadings3 asserted a claim for negli-
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.,
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 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.
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, 689 S.W.2d 404, 406 (Tex.1985), Gordon further submits that the “fundamental difference” between a negligent injury and an intentional injury is the “specific intent to inflict injury.” 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 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.
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 1990, 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 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
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.
Justice DEVINE
SUPREME COURT OF TEXAS