Joseph O. Lopez v. The City of El Paso, 08-19-00123-CV (Tex. App.—El Paso Dec. 9, 2020)
This is an interlocutory appeal from the trial court’s order granting the City’s plea to the jurisdiction in which the El Paso Court of Appeals affirmed.
Plaintiff, Joseph O. Lopez sued the City of El Paso, for alleged injuries he sustained as the result of an arrest by two City police officers. Lopez alleged that during the arrest, the officers forcefully pulled him from his vehicle; flung him to the ground, pinned him and applied pressure on his torso, head, and neck. He also asserts one of the officers struck him in the head multiple times. Lopez further alleged that the officers negligently employed a baton while using excessive force. The City filed a plea to the jurisdiction, which was granted.
On appeal, the Eighth Court of Appeals addressed the sole issue of whether the trial court abused its discretion by deciding that Appellant had failed to allege sufficient facts to support a waiver of immunity under the Texas Tort Claims Act (“TTCA”). First, the court noted that § 101.106(a) bars a plaintiff from suing city employees once the plaintiff has elected to sue the city first, even in cases where city employees might otherwise be solely and personally liable in their individual capacities. The court then acknowledged Lopez had creative pleading in an attempt to avoid characterizing the officers’ conduct as an intentional tort. It noted that when courts analyze a plaintiff’s pleadings to determine the existence of waivers of immunity, courts look at the substance of the pleadings, not to their characterization or form. The TTCA does not apply to intentional acts including assault, battery, false imprisonment, or any other intentional tort. In this case, the police conduct alleged by Lopez, the substance of his claims, fell under the category of intentional torts, specifically assault and battery, not negligence. As a result, the alleged tortious conduct did not sustain a waiver of immunity under the TTCA. The plea was properly granted.
If you would like to read this opinion click here. Panel consisted of Chief Justice Jeff Alley and Justices Yvonne Rodriguez and Gina Palafox. Opinion by Justice Rodriguez. Docket page with attorney information can be found here.