assault claim in Texas

2023Co. v. Dorsey, 651 S.W.3d 692 , 701-02 (Tex. App.—Houston [14th Dist.] 2022, no pet.); see also Cavin v. Abbott, 545 S.W.3d 47, 57 (Tex. App.—Austin 2017, no pet.) (holding the TCPA did not apply to an assault claim, which sought recovery for “bodily injury,” even though some of the sought-after damages “would arguably fall outside ‘bodily injury’”).

2022The plain language of the statute indicates that if the claim seeks recovery for bodily injury, wrongful death, or survival, then the TCPA does not apply—it does not matter that the claim could also result in recovery of damages that arguably fall outside the meaning of “bodily injury.” See Cavin v. Abbott, 545 S.W.3d 47, 57 (Tex. App.—Austin 2017, no pet.) (TCPA did not apply to an assault claim, which sought recovery for “bodily injury” because the claimant sought recovery of medical expenses and compensation for physical pain even though some of the sought-after damages “would arguably fall

2020Enters., Inc., 523 S.W.3d at 253 (holding that the bodily injury exemption applied to the plaintiff’s suit against a documentary producer because the plaintiff sought to recover for four gunshot wounds that he claimed he sustained as a result of the producer’s negligence in editing and producing its program); see also Superior HealthPlan, Inc. v. Badawo, No. 03-18-00691-CV, 2019 WL 3721327 , at *4 (Tex. App.—Austin Aug. 8, 2019, no pet.) (mem. op.) (holding that the bodily injury exemption applied to a healthcare liability claim).

2017Enters. v. Jones, ___ S.W.3d ___, No. 05-16-00859-CV, 2017 Tex. App. LEXIS 3883 , at *5–6 (Tex. App.—Dallas Apr. 27, 2017, no pet. h.) (negligence claims against media defendant for allegedly inducing third parties to shoot him came within “bodily injury” exemption, as it “seeks to recover for the bodily injuries—four gunshot wounds—that he claims he sustained as a result of Kirkstall’s negligence in editing and producing the program”). 15 In contending otherwise, appellants attempt to characterize the Abbotts’ assault claim as seeking recovery only for “non-physical injuries,” further suggest

2012See Pool , 715 S.W.2d at 635 .

2012See Pool, 715 S.W.2d at 635 .

2004McKinney v. State, 491 S.W.2d 404, 406-07 (Tex.Crim.App.1973).

2004McKinney v. State, 491 S.W.2d 404, 406-07 (Tex.Crim.App.1973).

2024The evidence was therefore insufficient for the conviction to stand.” “To avoid forfeiting a legal argument for inadequate briefing, an appellant’s brief must contain ‘a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.’” Taylor v. State, 558 S.W.3d 215, 218 (Tex. App.—Texarkana 2018, no pet.) (citing TEX.

2023See Zenner, 371 S.W.3d at 314 .

2020Corp., 582 S.W.3d 566 , 575 (Tex. App.—Fort Worth 2019, pet. denied); see also Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 892 (Tex. 2018) (“The TCPA provides its own definition of ‘exercise of the right of free speech.’ The statutory definition is not fully coextensive with the constitutional free-speech right protected by the First Amendment to the U.S. Constitution.”).

2017Co. v. Cowan, 945 S.W.2d 819 , 820–24 (Tex. 1997) (construing standard homeowners’ insurance policy—which defined “‘bodily injury’ as ‘bodily harm, sickness or disease’”—as “not includ[ing] purely emotional injuries” and as “unambiguously requir[ing] an injury to the physical structure of the human body”); id. at 823–24 (“Our decision comports with the commonly understood meaning of ‘bodily,’ which implies a physical, and not purely mental, emotional, or spiritual harm.” (citations omitted)); Forbes v. Lanzl, 9 S.W.3d 895, 900 (Tex. App.— Austin 2000, pet. denied) (““Bodily injury’ means ‘phys

2016See 144 S.W.3d at 447 -448 (citing Rice v. Janovich, 109 Wash.2d 48 , 742 P.2d 1230, 1238 (Wash.1987) (holding that the trial court erred to instruct the jury on IIED in addition to assault because a plaintiff can recover emotional distress damages for an assault claim)).

2016See 144 S.W.3d at 447 -448 (citing Rice v. Janovich, 109 Wash.2d 48 , 742 P.2d 1230, 1238 (Wash.1987) (holding that the trial court erred to instruct the jury on IIED in addition to assault because a plaintiff can recover emotional distress damages for an assault claim)).

2016See 144 S.W.3d at 447 -448 (citing Rice v. Janovich, 109 Wash.2d 48 , 742 P.2d 1230, 1238 (Wash.1987) (holding that the trial court erred to instruct the jury on IIED in addition to assault because a plaintiff can recover emotional distress damages for an assault claim)).

2015See Weeks, 391 S.W.3d at 122 ; see also De Jarnette v. State, 706 S.W.2d 680, 682 (Tex. App.—Houston [14th Dist.] 1986) (concluding that “a charge on the misdemeanor assault was not raised by the evidence because the complainant sustained serious bodily injury as a result of the assault”), aff’d on other grounds, 732 S.W.2d 346 (Tex. Crim.

2015See Weeks, 391 S.W.3d at 122 ; see also De Jarnette v. State, 706 S.W.2d 680, 682 (Tex. App.—Houston [14th Dist.] 1986) (concluding that “a charge on the misdemeanor assault was not raised by the evidence because the complainant sustained serious bodily injury as a result of the assault”), aff’d on other grounds, 732 S.W.2d 346 (Tex. Crim.

2015See Weeks, 391 S.W.3d at 122 ; see also De Jarnette v. State, 706 S.W.2d 680, 682 (Tex. App.—Houston [14th Dist.] 1986) (concluding that “a charge on the misdemeanor assault was not raised by the evidence because the complainant sustained serious bodily injury as a result of the assault”), aff’d on other grounds, 732 S.W.2d 346 (Tex. Crim.

2014Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). 9 The phrase “could have been brought” in § 101.106(f) applies to claims raised under the TTCA “regardless of whether the [TTCA] waives immunity from suit.” Franka v. Velasquez, 332 S.W.3d 367 , 10 The applicability of subsection (e) to the underlying suit turns on whether the assault claim was brought against Norville in his individual or official capacity.

2014See Kelly, 301 S.W.3d at 659 .

2014Citing Reardon v. LightPath Technologies, Inc., Brett asserts that the trial court could award no damages for physical pain because Chris did not seek medical care or take pain medication, and “[t]here can be no recovery for damages that are speculative or conjectural.” Reardon, 183 S.W.3d 429, 442 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (citing A.B.F.

2014Fisher, 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 .

2014Alexander v. Walker, No. 11-606, 2014 Tex. LEXIS 451, at *7 (Tex. June 6, 2014).

2010See id. at 408-9 .