intentional tort exception in Texas

2023The Texas Supreme Court has held that the TTCA’s intentional tort exception applies only when it is the intentional tort of a governmental employee whose conduct is the subject of the complaint. 16 Delaney v. University of Houston, 835 S.W.2d 56, 59 (Tex. 1992).

2017The Texas Supreme Court reasoned that to read the intentional tort exception in section 101.057(2)"so broadly as to except *393 from the waiver of immunity any claim, irrespective of its nature, for injuries resulting from an intentional tort, is to ignore a distinction that the law recognizes when negligent and intentional acts both contribute to the occasion of injury." Id. at 60 . "[I]ntentional conduct intervening between a negligent act and the result does not always vitiate liability for the negligence." Id.

2010To the contrary, in Newman v. Obersteller , 960 S.W.2d 621, 622-23 (Tex. 1997), we held that former section 101.106's limiting phrase "under this chapter" operated to bar an intentional tort claim against an employee after a final judgment on a claim involving the same subject matter had been rendered against the governmental unit, even though the Act by its terms expressly excluded intentional torts from the scope of the Act's immunity waiver.

2010To the contrary, in Newman v. Obersteller, 960 S.W.2d 621, 622-23 (Tex.1997), we held that former section 101.106’s limiting phrase “under this chapter” operated to bar an intentional tort claim against an employee after a final judgment on a claim involving the same subject matter had been rendered against the governmental unit, even though the Act by its terms expressly excluded intentional torts from the scope of the Act’s immunity waiver.

2020In Mo-Vac, we upheld the trial court’s summary judgment in favor of the employer because the evidence failed to raise a fact issue as to intent. 22 To satisfy the intentional-tort exception, “the employer must believe that its actions are substantially certain to result in a particular injury to a particular employee, not merely highly likely to increase overall risks to employees in the workplace.” 23 19 Medina v. Herrera, 927 S.W.2d 597, 600 (Tex. 1996). 20 City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). 21 St.

2017SNS urges we should apply the discussion in Medina of Professor Larson’s view that “the intentional tort exception, which is generally recognized in other jurisdictions, should apply to corporate employers only where the ‘assailant is, by virtue of control or ownership, in effect the alter ego of the corporation, or where the corporate employer specifically authorizes the assault.” Medina, 927 S.W.2d at 601 (citing 2A Larson, Tee Law of Workmen’s Compensation, § 68.00, 68.21 (1990)).

2017See Tex. Dep’t of Public Safety v. Petta, 44 S.W.3d 575, 580 , 44 Tex. Sup. J. 597 (Tex. 2001) (Claim that an officer was negligent by ignoring police procedure and aiming a gun, blocking the vehicle and firing at a suspect’s tires was an intentional tort); See also Harris County v. Cabazos, 177 S.W.3d 105 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (Claim that a sheriff deputy wrongfully shot suspect was an intentional tort claim, although couched as negligence.); City of Laredo v. Nuno, 94 S.W.3d 786 (Tex. App.—San Antonio 2002, no pet.) (Claim of negligence in improperly applying handcuff

2015See, e.g., Medrano v. City Pearsall, 989 S.W.2d 141, 144 (Tex.App.-San Antonio, 1999); Harris County v. Cabazos, 177 S.W.3d 105, 111 (Tex. App.--Houston [1st Dist.] 2005, no pet.) (“A plaintiff cannot -14- circumvent the intentional tort exception by couching his claims in terms of negligence.”).

2015See, e.g., Medrano v. City Pearsall, 989 S.W.2d 141, 144 (Tex.App.-San Antonio, 1999); Harris County v. Cabazos, 177 S.W.3d 105, 111 (Tex. App.--Houston [1st Dist.] 2005, no pet.) (“A plaintiff cannot -14- circumvent the intentional tort exception by couching his claims in terms of negligence.”).

2005See 835 S.W.2d at 60 (“[T]he intentional tort exception could not be circumvented merely by alleging that the government was negligent in supervising the employee-tortfea-sor_”); Medrano v. City of Pearsall, 989 S.W.2d 141, 144 (Tex.App.-San Antonio 1999, no pet.) (although plaintiffs’ alleging negligent hiring, negligent training, and negligent failure to train claims against officer who used flashlight to beat a handcuffed suspect, court found officer acted intentionally and held plaintiffs’ could not circumvent the intentional tort exception by mere allegations of negligence against the Cit

2006Nov.9, 2005) (despite claim of alleged misuse of handcuffs and leg irons, "all of plaintiff's damages arise out of the claimed instance of excessive force"); Holland v. City of Houston, 41 F.Supp.2d 678, 713 (S.D.Tex. 1999) ("Where the essence of a claim under the TTCA arises from an intentional tort, allegations of negligence are insufficient to avoid the § 101.057 exception to liability."); Huong v. City of Port Arthur, 961 F.Supp. 1003, 1008-09 (E.D.Tex.1997) ("Plaintiffs cannot circumvent the intentional tort exception to waiver of municipal liability by simply pleading negligence when the

2006Nov.9, 2005) (despite claim of alleged misuse of handcuffs and leg irons, "all of plaintiff's damages arise out of the claimed instance of excessive force”); Holland v. City of Houston, 41 F.Supp.2d 678, 713 (S.D.Tex. 1999) ("Where the essence of a claim under the TTCA arises from an intentional tort, allegations of negligence are insufficient to avoid the § 101.057 exception to liability.”); Huong v. City of Port Arthur, 961 F.Supp. 1003, 1008-09 (E.D.Tex.1997) ("Plaintiffs cannot circumvent the intentional tort exception to waiver of municipal liability by simply pleading negligence when the

2023Petta, 44 S.W.3d at 580–82 (the intentional tort exception barred the plaintiff’s claim because the claim was based on the same conduct as the plaintiff’s assault); Tex. Tech Univ.

2017See Tex. Dep’t of Public Safety v. Petta, 44 S.W.3d 575, 580 , 44 Tex. Sup. J. 597 (Tex. 2001) (Claim that an officer was negligent by ignoring police procedure and aiming a gun, blocking the vehicle and firing at a suspect’s tires was an intentional tort); See also Harris County v. Cabazos, 177 S.W.3d 105 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (Claim that a sheriff deputy wrongfully shot suspect was an intentional tort claim, although couched as negligence.); City of Laredo v. Nuno, 94 S.W.3d 786 (Tex. App.—San Antonio 2002, no pet.) (Claim of negligence in improperly applying handcuff

2023Harris 16 Cnty., TX v. Cabazos, 177 S.W.3d 105, 111 (Tex. App.—Houston [1st Dist.] 2005, no pet.); City of Laredo v. Nuno, 94 S.W.3d 786, 789 (Tex. App.—San Antonio 2002, no pet.).

2017See Tex. Dep’t of Public Safety v. Petta, 44 S.W.3d 575, 580 , 44 Tex. Sup. J. 597 (Tex. 2001) (Claim that an officer was negligent by ignoring police procedure and aiming a gun, blocking the vehicle and firing at a suspect’s tires was an intentional tort); See also Harris County v. Cabazos, 177 S.W.3d 105 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (Claim that a sheriff deputy wrongfully shot suspect was an intentional tort claim, although couched as negligence.); City of Laredo v. Nuno, 94 S.W.3d 786 (Tex. App.—San Antonio 2002, no pet.) (Claim of negligence in improperly applying handcuff

2004Id. (citing Delaney v. Univ. of Houston, 835 S.W.2d 56, 59 (Tex.1992) (holding Tort Claims Act’s intentional tort exception to waiver of immunity from suit applies to complaints based on intentional acts of government employees); Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 719 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (holding government has not waived immunity from suit for government employees’ intentional acts); Petta v. Rivera, 985 S.W.2d 199, 205-06 (Tex.App.Corpus Christi 1998) (same), rev’d & rendered on other grounds sub nom., Tex. Dep’t of Pub.

2004Id. (citing Delaney v. Univ. of Houston , 835 S.W.2d 56, 59 (Tex. 1992) (holding Tort Claims Act's intentional tort exception to waiver of immunity from suit applies to complaints based on intentional acts of government employees); Scott v. Prairie View A & M Univ ., 7 S.W.3d 717, 719 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (holding government has not waived immunity from suit for government employees' intentional acts); Petta v. Rivera , 985 S.W.2d 199 , 205–06 (Tex. App.—Corpus Christi 1998) (same), rev'd & rendered on other grounds sub nom. , Tex. Dep't of Pub.

2025(Tex. 2013) Juarez City of Watauga v. 434 S.W.3d 586 , 94 Discussing immunity in the context of an intentional tort claim.

2015“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.”39 36 Gordon, 434 S.W.3d at 588 . 37 Id. at 590 (citing Tex. Penal Code Ann. § 22.01 (a) (West 2015)). 38 Gordon, 434 S.W.3d at 589–90. 39 Id. at 594 (citations omitted). - 13 - Further, the TTCA bars intentional-tort claims even if they are framed as negligence.40 As this Court has stated, “A plaintiff cannot circumvent the intentional tort exception by couching his claims in terms of negligence.”41 Although Baker’s amended petiti

2006Relying 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.

2006Relying 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.

2021See, e.g., City of Houston v. Petroleum Traders Corp., 261 S.W.3d 350, 361 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding that the TTCA does not waive immunity for a claim of conversion).

2013See Haase v. Pearl River Polymers, Inc., No. 14-11-00024-CV, 2012 Tex. App. LEXIS 6593 , at *12 (Tex. App.—Houston [14th Dist.] Aug. 9, 2012, pet. denied) (mem. op.); see also City of Houston v. Petroleum Traders Corp., 261 S.W.3d 350, 361 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

2016See Ethio Express Shuttle Serv. v. City of Houston, 164 S.W.3d 751, 757-58 (Tex.App.—Houston [14th Dist.] 2005, no pet.); City of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366, 372 (Tex.App.—Fort Worth 2001, no pet).

2016See City of Friendswood v. Horn, No. 01-15-00436-CV, __ S.W.3d __, __, 2016 WL 638471, at *9 (Tex. App.— Houston [1st Dist.] Feb. 11, 2016, no pet.); Ethio Express Shuttle Serv. v. City of Houston, 164 S.W.3d 751 , 757–58 (Tex. App.—Houston [14th Dist.] 2005, no pet.); City of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366, 372 (Tex. App.—Fort Worth 2001, no pet.). 16 The Uniform Declaratory Judgment Act (“UDJA”) is not a general waiver of sovereign immunity.

2011Del., Inc., 120 S.W.3d 400, 406 (Tex.App.-Houston [14th Dist.] 2003, pet. denied).

2011Urdiales, 120 S.W.3d at 406 .

2009Servs., Inc., 907 S.W.2d 4, 6 (Tex.App.-Tyler 1994, writ denied) (employee who claims or accepts workers’ compensation benefits has made an election of remedies and cannot pursue an intentional tort claim against his employer or a co-employee).

2009Servs., Inc., 907 S.W.2d 4, 6 (Tex. App.—Tyler 1994, writ denied) (employee who claims or accepts workers’ compensation benefits has made an election of remedies and cannot pursue an intentional tort claim against his employer or a co-employee).

2021Newman v. Obersteller, 960 S.W.2d 621, 622-23 (Tex. 1997); see Liu v. City of San Antonio, 88 S.W.3d 737, 744 (Tex. App.—San Antonio 2002, pet. denied); Enriquez v. Morsy, No. 01-18- 00877-CV, 2020 WL 4758428 , at *16 (Tex. App.—Houston [1st Dist.] Aug. 18, 2020, no pet.) (mem. op.); Enriquez v. Orihuela, No. 14-18-00147-CV, 2019 WL 6872946 , at *10 (Tex. App.—Houston [14th Dist.] Dec. 17, 2019, pet. denied) (mem. op.).

2006Id.

2006Nov.9, 2005) (despite claim of alleged misuse of handcuffs and leg irons, "all of plaintiff's damages arise out of the claimed instance of excessive force"); Holland v. City of Houston, 41 F.Supp.2d 678, 713 (S.D.Tex. 1999) ("Where the essence of a claim under the TTCA arises from an intentional tort, allegations of negligence are insufficient to avoid the § 101.057 exception to liability."); Huong v. City of Port Arthur, 961 F.Supp. 1003, 1008-09 (E.D.Tex.1997) ("Plaintiffs cannot circumvent the intentional tort exception to waiver of municipal liability by simply pleading negligence when the

2006Nov.9, 2005) (despite claim of alleged misuse of handcuffs and leg irons, "all of plaintiff's damages arise out of the claimed instance of excessive force”); Holland v. City of Houston, 41 F.Supp.2d 678, 713 (S.D.Tex. 1999) ("Where the essence of a claim under the TTCA arises from an intentional tort, allegations of negligence are insufficient to avoid the § 101.057 exception to liability.”); Huong v. City of Port Arthur, 961 F.Supp. 1003, 1008-09 (E.D.Tex.1997) ("Plaintiffs cannot circumvent the intentional tort exception to waiver of municipal liability by simply pleading negligence when the

2004Id. (citing Delaney v. Univ. of Houston, 835 S.W.2d 56, 59 (Tex.1992) (holding Tort Claims Act’s intentional tort exception to waiver of immunity from suit applies to complaints based on intentional acts of government employees); Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 719 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (holding government has not waived immunity from suit for government employees’ intentional acts); Petta v. Rivera, 985 S.W.2d 199, 205-06 (Tex.App.Corpus Christi 1998) (same), rev’d & rendered on other grounds sub nom., Tex. Dep’t of Pub.

2004Id. (citing Delaney v. Univ. of Houston , 835 S.W.2d 56, 59 (Tex. 1992) (holding Tort Claims Act's intentional tort exception to waiver of immunity from suit applies to complaints based on intentional acts of government employees); Scott v. Prairie View A & M Univ ., 7 S.W.3d 717, 719 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (holding government has not waived immunity from suit for government employees' intentional acts); Petta v. Rivera , 985 S.W.2d 199 , 205–06 (Tex. App.—Corpus Christi 1998) (same), rev'd & rendered on other grounds sub nom. , Tex. Dep't of Pub.

2020Based on Reed Tool and consistent with Rodriguez, we hold that for the intentional-tort exception to the exclusive remedy to apply, the employer must believe that its actions are substantially certain to result in a particular injury to a particular employee, not merely highly likely to increase overall risks to employees in the workplace. 56 Id. at 413 . 57 Id. 18 E Finally, the Restatement definition of intent we adopted in Reed Tool requires not only that a substantial certainty of a particular injury to a particular employee exist but also that the employer “believe[]” that it does.

2020Based on Reed Tool and consistent with Rodriguez, we hold that for the intentional-tort exception to the exclusive remedy to apply, the employer must believe that its actions are substantially certain to result in a particular injury to a particular employee, not merely highly likely to increase overall risks to employees in the workplace. 56 Id. at 413 . 57 Id. 18 E Finally, the Restatement definition of intent we adopted in Reed Tool requires not only that a substantial certainty of a particular injury to a particular employee exist but also that the employer “believe[]” that it does.

2016See Ethio Express Shuttle Serv. v. City of Houston, 164 S.W.3d 751, 757-58 (Tex.App.—Houston [14th Dist.] 2005, no pet.); City of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366, 372 (Tex.App.—Fort Worth 2001, no pet).

2016See City of Friendswood v. Horn, No. 01-15-00436-CV, __ S.W.3d __, __, 2016 WL 638471, at *9 (Tex. App.— Houston [1st Dist.] Feb. 11, 2016, no pet.); Ethio Express Shuttle Serv. v. City of Houston, 164 S.W.3d 751 , 757–58 (Tex. App.—Houston [14th Dist.] 2005, no pet.); City of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366, 372 (Tex. App.—Fort Worth 2001, no pet.). 16 The Uniform Declaratory Judgment Act (“UDJA”) is not a general waiver of sovereign immunity.

2023However, “a plaintiff’s negligence claim against a governmental unit may arise out of the same facts that would also give rise to an intentional-tort claim absent the governmental unit’s sovereign immunity.” Kilburn, 411 S.W.3d at 39 (“the fact that the employees intentionally entered the property and undertook the excavation work does not, standing alone, transform the Kilburns’ negligence claim into a trespass claim”). “[T]he dispositive inquiry is whether the employees intended the specific damages they caused.” Id. - 10 - 04-22-00589-CV Wyatt Ranches’ negligence claim is based on the same

2023However, “a plaintiff’s negligence claim against a governmental unit may arise out of the same facts that would also give rise to an intentional-tort claim absent the governmental unit’s sovereign immunity.” Kilburn, 411 S.W.3d at 39 (“the fact that the employees intentionally entered the property and undertook the excavation work does not, standing alone, transform the Kilburns’ negligence claim into a trespass claim”). “[T]he dispositive inquiry is whether the employees intended the specific damages they caused.” Id. - 10 - 04-22-00589-CV Wyatt Ranches’ negligence claim is based on the same

2023See Roman, 2016 WL 3748851 , at *3; Sampson, 500 S.W.3d at 392 .

2023See Sampson, 500 S.W.3d at 392 . –13– D.

2022See Texas Dep’t of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 702 (Tex. App.—Austin 2011, no pet.) (“merely asserting legal conclusions or labeling a defendant’s actions as ‘ultra vires,’ ‘illegal,’ or ‘unconstitutional’ does not suffice to plead an ultra vires claim . . .”); Texas Southern Univ. v. Greenleaf, No. 14-97-01135-CV, 1998 Tex. App. LEXIS 4997 , at *5 5 (Tex. App.—Houston [14th Dist.] Aug. 13, 1998, pet. denied) (reviewing court must accept factual allegations in plaintiff’s pleadings as true but is not bound by legal conclusions or illogical factual conclusions that plaintif