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Click here for the full text of this decision FACTS:Brenda and David Durbin filed a wrongful death suit against the City of Winnsboro after their son Jimmy was killed in a motorcycle accident while being pursued by a Winnsboro police officer. They also brought claims for negligent entrustment and exemplary damages. In their original petition, the Durbins alleged that the officer, Tony Browning, purposefully bumped Jimmy’s motorcycle. Jimmy lost control and wrecked. Browning ran over Jimmy, dismembering and killing him. The city filed a plea to the jurisdiction, arguing that the Durbins had alleged an intentional tort, which was therefore barred by the Texas Tort Claims Act. The trial court granted the motion. HOLDING:Affirmed in part; reversed and remanded in part. In order for respondeat superior liability to attach to the city, the city must have waived its sovereign immunity. The TTCA allows for limited waiver of immunity in three specific areas. Where the employee’s conduct falls within one of the specific areas, immunity is not waived where the conduct was intentional. The court verifies that this case generally falls within the TTCA’s ambit because it involves the operation and use of a motor vehicle by a police officer acting within the scope of his employment that led to Jimmy’s death. The Durbins’ pleading made this allegation: “Tony Browning decided that he would ‘bump’ the motorcycle driven by Jimmy Durbin. Tony Browning struck Durbin’s motorcycle with his patrol car causing the motorcycle to wreck and subsequently was run over by Browning’s patrol car. Jimmy Durbin was killed and his body dismembered.” The city contends that the Durbins have pleaded an intentional tort, which would mean that the city’s immunity would not be waived by the TTCA, because they have described an intentional act. On the other hand, the Durbins argue that they did not allege an intentional tort because they did not allege that Browning intentionally injured Jimmy. The court refers to Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex. 1985), which held that the fundamental difference between a negligence cause of action and an intentional tort is not whether the defendant intended the acts, but whether the defendant intended the resulting injury. The court notes that many appellate decisions have held that when a plaintiff pleads facts that amount to an intentional tort, no matter if the claim is framed as negligence, it is a claim for an intentional tort and barred by the Tort Claims Act. But, the court adds, in a majority of these cases, the intent to injury could be inferred. For instance, in one case, a police officer hit the plaintiff’s window with a night stick, aimed a gun at her, fired at her tires and blocked her car with his cruiser. In another case, a hospital employee raped a patient, and in a third case, a police officer hit the plaintiff in the head with handcuffs, threw her and kicked her. The court finds the same pattern in federal court cases analyzing similar issues. The court rules that it will adopt the Reed Tool line of cases of what constitutes an intentional tort under the TTCA. Consequently, the court finds that the Durbins’ claim is not barred by the TTCA. The court affirms the trial court’s ruling on negligent entrustment because the TTCA does not recognize that cause of action. The court also affirms the ruling on exemplary damages, because under Civil Practice & Remedies Code �101.0215, a plaintiff cannot recover exemplary damages from a municipality for its governmental function in providing police protection. OPINION:Ross, J.; Morriss, C.J., Ross and Carter, JJ.

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