the City of Watauga v. Russell Gordon

                IN THE SUPREME COURT OF TEXAS
                                           444444444444
                                             NO. 13-0012
                                           444444444444

                            THE CITY OF WATAUGA, PETITIONER,
                                                   v.


                               RUSSELL GORDON, RESPONDENT
            4444444444444444444444444444444444444444444444444444
                              ON PETITION FOR REVIEW FROM THE
                     COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
            4444444444444444444444444444444444444444444444444444


                                     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


                                                  2
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




                                                   3
         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).




                                                 6
                                                     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.

                                                            7
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


                                                  9
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).

                                                        11
       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.


                                                  12
       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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