Officer’s alleged failure to control police dog resulting in a bite and injury is a properly plead waiver of immunity says First District Court of Appeals.

City of Houston v. Jesus Roman, Individually and as Next Friend of G.R., A Minor  01-15-01042-CV ( Tex. Civ. App. Houston [1st Dist.] July 12, 2016)

This is a Texas Tort Claims Act (“TTCA”) case involving a police dog bite. The First Court of Appeals held the pleadings accurately invoked a waiver of immunity and affirmed the denial of the City’s plea to the jurisdiction.

Roman’s son (G.R.) was walking with a friend to play soccer in a nearby park. Roman’s petition alleged 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. When the dog caught up to G.R. it attacked biting his right arm and lacerating an artery that required surgery. In the plea the City asserted the officers observed two youths trying to enter a back yard. They chased the boys through several yards before calling for K-9 backup.  When the boys did not respond to commands to stop, the officers released Jake, the officer dog.  The City contends that the K-9 Officer 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. After a hearing the trial court denied the plea to the jurisdiction and the City appealed.

The court first held the actions of the K-9 officer sound in negligence. 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. “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.”  Roman alleges and has adduced some evidence that the K-9 officer failed to exercise reasonable care in controlling Jake. The record does not establish that Schmidt intended to use Jake to injure G.R., only to locate him.  As a result, Roman properly plead a negligence claim. Next, the City asserts Roman admitted his claim was a failure to leash Jake so is a non-use of property claim for which immunity remains. However, the panel asserted it previously 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.]” Jake was assisting Officer Schmidt in his duties by helping to track and locate G.R. As a result, this is not a non-use case but a case alleging the negligent use of property, i.e. Jake the dog. The trial court properly denied the plea.

If you would like to read this opinion click here.  Panel: Justice Higley, Justice Bland, and Justice Massengale. Memorandum Opinion by Justice Bland. The attorney listed for the City is Collyn A Peddie.  The attorneys listed for Roman are Morgan McPhetters and Dominique Boussac Bartholet.