City of Houston v. Jesus Roman, Individually and as Next Friend of G.R., a Minor ( 2016 )

Opinion issued July 12, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-01042-CV
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CITY OF HOUSTON, Appellant
V.
JESUS ROMAN, INDIVIDUALLY AND AS NEXT FRIEND
OF G. R., A MINOR, Appellee
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Case No. 2014-63729
MEMORANDUM OPINION
A police dog attacked and injured Jesus Roman’s son. On his son’s behalf,
Roman sued the City of Houston, alleging that the Houston Police Department
officers charged with handling the dog were negligent. The City filed a plea to the
jurisdiction asserting governmental immunity, which the trial court denied. The
City appeals. We conclude that Roman has alleged a claim that falls within the
Texas Tort Claims Act, which provides that governmental immunity is waived for
claims that fall within it. We therefore affirm the order of the trial court.
BACKGROUND
Roman alleges that his son, G.R., and a friend were walking to a nearby park
to play soccer. As they walked down a back street, a police car approached them.
An officer got out of the car’s passenger side door and started running toward the
boys. The driver also exited the car, walked to the back of the car, and opened a
door, letting a dog out. When the youths saw the dog running toward them, they
fled, jumping a fence into an adjacent backyard. G.R. hid behind a trash can and
waited. G.R. heard a gate open, and then a police dog attacked him, biting his right
arm and lacerating an artery that required surgery. When G.R. tried to push the
dog away, he alleges that the police officers threatened to shoot him. After “a
minute,” the officers told the dog to release G.R.
According to the City’s evidence in support of its plea, two HPD officers
were patrolling their beat in a residential neighborhood in southeast Houston on the
day of the incident. The officers observed two youths trying to enter a back yard.
The officers called out and commanded them to stop. Disregarding the officers’
orders, the youths began to run. The officers radioed for assistance and chased the
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youths on foot through a series of back yards. When the responding officers
arrived, the police established a perimeter and requested a K-9 unit.
A short time later, Officer B. Schmidt and his dog, Jake, arrived at the scene.
After conferring with the other officers, Schmidt let Jake out of the car. Schmidt
and Jake tracked the youths over a fence and down the street until Jake stopped at a
gate a few houses down. When Schmidt opened the gate, Jake ran to a trash can
and jumped against it, knocking it over. G.R. fell out of the trash can. Jake bit
G.R.’s forearm, tearing the skin. Seeing that G.R. was bleeding, Schmidt
commanded Jake to stop, and Jake released G.R. An ambulance transported G.R.
to the hospital, where his bite was treated.
DISCUSSION
In its jurisdictional plea, the City argues that Roman has alleged an
intentional tort, for which the Tort Claims Act does not waive governmental
immunity. In the alternative, the City argues that the conduct alleged does not fall
within the Tort Claims Act’s waiver because it is not a “condition or use” of
property. Roman responds that his claims sound in negligence and therefore
immunity is waived.
I. Standard of Review and Applicable Law
If a governmental unit has immunity from a claim pending against it, a trial
court lacks subject-matter jurisdiction as to that claim. Rusk State Hosp. v. Black,
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392 S.W.3d 88, 95 (Tex. 2012). The governmental unit may challenge the trial
court’s subject-matter jurisdiction by asserting a plea to the jurisdiction. Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). In a
plea to the jurisdiction, a party may challenge the pleadings, the existence of
jurisdictional facts, or both. Id. at 226–27. We review a trial court’s ruling on a
plea to the jurisdiction de novo. Id. at 228.
When a plea to the jurisdiction challenges the pleadings, we determine if the
plaintiff has alleged facts affirmatively demonstrating the court’s jurisdiction. Id.
at 226 (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446
(Tex. 1993)). We construe the pleadings liberally in the plaintiff’s favor and look
to the pleader’s intent. Id.
When the governmental unit challenges the existence of jurisdictional facts,
and the parties submit evidence relevant to the jurisdictional challenge, we
consider that evidence when necessary to resolve the jurisdictional issues raised.
Id. The standard of review for a jurisdictional plea based on evidence “generally
mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).”
Id. at 228. Under this standard, when reviewing a plea in which the pleading
requirement has been met, we credit as true all evidence favoring the nonmovant
and draw all reasonable inferences and resolve any doubts in the nonmovant’s
favor. Id.
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Generally, governmental immunity protects governmental entities from suit
or liability unless the entity consents to suit. Miranda, 133 S.W.3d at 224. The
Texas Tort Claims Act waives this immunity for injuries “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 ANN. § 101.021(2) (West 2011). Thus, “[f]or the Act’s property
waiver to apply, a condition or use of tangible personal or real property must be
involved.” City of Houston v. Davis, 294 S.W.3d at 612 (citing TEX. CIV. PRAC. &
REM CODE ANN. § 101.021(2)). “The plaintiff must allege, among other things,
that the property’s use proximately caused the personal injury.” Id. As used in
Section 101.021(2), the term “use” means “to put or [to] bring into action or
service; to employ for or [to] apply to a given purpose.” Id. (quoting Tex. Dep’t of
Crim. Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001)).
The Tort Claims Act also establishes exceptions to its waiver of immunity
for tort liability. Id. § 101.051 et seq. Intentional torts are not waived by the Act.
See id. § 101.057(2); Harris Cty. v. Cabazos, 177 S.W.3d 105, 109 (Tex.
App.―Houston [1st Dist.] 2005, no pet.).
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II. Analysis
A. A claim for failing to control a dog sounds in negligence, for
which the Tort Claims Act waives immunity.
The City contends that Officer Schmidt acted intentionally when he
deployed Jake and used him to track G.R. through the back yards; thus, it contends,
G.R.’s injuries are the result of an intentional tort. See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.057(2) (West 2011). The City also observes that Jake released
G.R. from his bite on Schmidt’s command. The City argues that because Jake was
under Officer Schmidt’s control, Schmidt’s conduct was intentional and cannot
have been negligent.
The evidence adduced in connection with the jurisdictional plea is
conflicting as to whether Schmidt guided Jake in connection with Jake’s
apprehension of G.R. or whether Jake attacked G.R. unguided by the officer. Even
if Jake was under Schmidt’s control generally, a defendant may be liable for
negligence in handling an animal if he fails to exercise reasonable care to prevent
the animal from injuring others. See City of Houston v. Jenkins, 363 S.W.3d 808,
816 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (citing Williams v. Sable,
No. 14-09-00806-CV, 2011 WL 238288, at *3 (Tex. App.—Houston [14th Dist.]
Jan. 25, 2011, no pet.) (mem. op.)). Roman alleges and has adduced some
evidence of his claim that Schmidt failed to exercise reasonable care in controlling
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Jake upon Jake’s entry into the back yard, his approach toward G.R., and the
resulting attack. See id.
Intentional conduct may give rise to liability for negligence when the actor
does not exercise reasonable care; thus, while Schmidt may have intended to use
Jake to locate G.R., a claim may sound in negligence if G.R. was injured by the
failure to use reasonable care in controlling Jake during the search. See, e.g.,
Castro v. Cammerino, 186 S.W.3d 671, 673–74 (Tex. App.—Dallas 2006, pet.
denied) (affirming judgment of liability in negligence case against bus driver for
running over pedestrian at intersection). The record does not establish that
Schmidt intended to use Jake to injure G.R. Because Roman has adduced some
evidence that Officer Schmidt negligently failed to control Jake, we hold that the
intentional tort exception to the Tort Claims Act’s waiver of immunity does not
defeat Roman’s claim at this stage of the proceedings. See TEX. CIV. PRAC. &
REM. CODE ANN. § 101.057(2); Miranda, 133 S.W.3d at 226–28; Jenkins, 363
S.W.3d at 816; Cabazos, 177 S.W.3d at 109; Poyner, 64 S.W.3d at 199.
The City cites Garland v. Rivera for the proposition that the use of a police
dog to locate and arrest a suspect is an intentional tort, which the Tort Claims Act
excepts from its waiver of liability under Section 101.057. See TEX. CIV. PRAC. &
REM. CODE ANN. § 101.057; City of Garland v. Rivera, 146 S.W.3d 334, 337–38
(Tex. App.—Dallas 2004, no pet.). Rivera, however, is distinguishable. In Rivera,
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when a suspect resisted arrest, the police used the dog, along with pepper spray,
handcuffs, and “other departmentally issued property” to subdue him. Rivera, 146
S.W.3d at 337. The suspect died of blunt-force trauma. Id. The Dallas Court of
Appeals held, in those circumstances, that the police officer’s use of the police dog
to subdue the suspect by force was an intentional battery, for which immunity was
not waived. See id. at 337–38. In contrast, in this case, Roman denies that Officer
Schmidt deliberately used Jake to subdue G.R. or to injure him before the attack;
instead, he testified that the dog attacked him without any command from Schmidt.
Thus, Rivera is inapposite. Id. at 337; see also Tex. Dep’t of Pub. Safety v. Petta,
44 S.W.3d 575, 577–78, 580 (Tex. 2001) (holding that conduct of police officer in
blocking motorist’s car in with cruiser, hitting her car window, threatening her
with gun, and shooting at her tires was assaultive in nature and Act did not waive
immunity); City of Waco v. Williams, 209 S.W.3d 216, 223 (Tex. App.—Waco
2006, pet. denied) (holding police use of taser in plaintiff’s death was battery for
which immunity was not waived).
B. The failure to use a leash does not negate a waiver of immunity
under the Tort Claims Act.
The City further contends that Roman judicially admitted that the failure to
leash Jake caused G.R.’s injury, and thus that Roman alleges a non-use of property,
for which the Tort Claims Act does not waive immunity. Section 101.021 of the
Tort Claims Act waives governmental immunity for injuries caused by a
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“condition or use” of tangible personal property. TEX. CIV. PRAC. & REM. CODE
ANN. § 101.021. The Texas Supreme Court defines “use” as “to put or bring into
action or service [or] to employ for or apply to a given purpose.” San Antonio
State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004). Allegations of non-use
of personal property do not waive governmental immunity. City of Sugarland v.
Ballard, 174 S.W.3d 259, 268 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
In another case involving a police dog bite, we rejected the City’s contention
and held that the use of the police dog sufficed to demonstrate “use” of property
under the Act. See City of Houston v. Davis, 294 S.W.3d 609 (Tex.
App.―Houston [1st Dist.] 2009, no pet.). In that case, a motorist stepped out of
his car and approached a nearby police cruiser. Id. at 611. A police dog leapt from
the cruiser’s open door and bit the motorist. Id. We observed that “the police
dog’s purpose was to assist in the officer’s performance of his police duties, which
the officer was carrying out [at the time of the attack.].” Id. at 612–13 (citing
Miller, 51 S.W.3d at 588). We accordingly held that the officer was using the dog
within the meaning of the Act and held that governmental immunity was waived.
Id. at 613.
Similarly, in this case, Jake was assisting Officer Schmidt in his duties by
helping to track and locate G.R. Accepting Roman’s pleadings as true and
construing them in his favor, we hold that his petition alleges a claim for the
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negligent use of a police dog, for which the Tort Claims Act waives immunity.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021; Davis, 294 S.W.3d at 613;
Miranda, 133 S.W.3d at 226; see also City of Dallas v. Heard, 252 S.W.3d 98,
102, 110 (Tex. App.—Dallas 2008, pet. denied) (holding that zoo “used” gorilla
within Act’s definition by exhibiting it).
CONCLUSION
We affirm the order of the trial court.
Jane Bland
Justice
Panel consists of Justices Higley, Bland, and Massengale.
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