Court of Appeals of Texas, Ninth District, Beaumont
Submitted on December 10, 2018
Appeal from the 258th District Court Polk County, Texas Trial
Cause No. CIV29742
Kreger, Horton and Johnson, JJ.
CHARLES KREGER JUSTICE
Alejandro Hernandez sued Kevin Blackburn for injuries
sustained as a result of Blackburn administering pepper spray
during an altercation at a high school soccer game.
Blackburn, an officer employed by Livingston Police
Department, was assigned to Livingston High School as a
School Resource Officer and worked the soccer game. In his
petition, Hernandez asserted causes of action for assault and
battery and negligence. Blackburn filed a traditional motion
for summary judgment based on the affirmative defense of
official immunity, which the trial court granted. Hernandez
timely appealed, and in one issue, contends the trial court
erred in granting summary judgment in favor of Blackburn.
Hernandez presents several arguments in support of this
issue. We affirm the trial court's judgment.
January 31, 2014, Livingston High School's soccer team
was completing against Jasper High School's soccer team.
Following a foul, the teams began fighting. Hernandez,
recovering from a knee injury, had not played in the game but
was in his uniform on the sideline. When the fighting
erupted, Hernandez ran onto the field and threw a punch at
Miguel Fernandez (Miguel) but missed the intended target.
Blackburn also made his way onto the field when the fighting
began and broke up several groups of people engaged in
separate altercations before turning his attention to
Hernandez and Miguel.
to Blackburn, both Hernandez and Miguel were actively
throwing punches when he first observed them. Miguel managed
to get Hernandez on the ground in some version of a
chokehold. Miguel was on the ground underneath Hernandez with
his arm around Hernandez's neck, and Hernandez's back
was on top of Miguel's chest. Blackburn repeatedly told
Hernandez and Miguel to stop fighting, but they refused to
comply, and Miguel continued holding Hernandez around the
neck, and Hernandez continued kicking, hitting, and punching
toward Miguel. When verbal warnings proved ineffective,
Blackburn said he tried to physically remove Miguel's arm
from Hernandez's throat. Blackburn testified this was
also unsuccessful, because Hernandez continued to flail, and
Miguel would not release him. At that point, Blackburn said
he warned them that if they did not stop, he would administer
pepper spray. Ultimately, Blackburn administered the pepper
spray in a short burst to break up the fight between
Hernandez and Miguel. He said his reason for breaking up the
fight was so that they would not hurt one another and so he
could turn his attention to other matters on the field. He
testified that the pepper spray was effective, and the
admitted to running on the field and throwing a punch that
did not make contact. According to Hernandez, then someone
grabbed him from behind, put him in a chokehold, and got him
on the ground. In his testimony, Hernandez complained that he
could not breathe while Miguel had him around the neck, and
Hernandez feared he would pass out. According to Hernandez,
he asked Miguel to let go and told him he could not breathe.
Hernandez indicated he hit Miguel in an attempt to free
himself from the chokehold. Hernandez testified that he did
not see Blackburn approach or hear him speak prior to being
and Blackburn's versions of events were consistent in key
respects. The undisputed facts are that a fight erupted at a
soccer game. Blackburn was the only officer at the scene when
the fighting started. Hernandez ran onto the field and
engaged in the fighting. Miguel wrestled Hernandez onto the
ground and had him in a chokehold. Other fights were taking
place at the same time. Blackburn administered pepper spray
in the direction of Hernandez and Miguel while they were on
the ground. Pepper spray contacted Hernandez's face,
causing his eyes to burn and irritation of his throat.
sued Blackburn for assault and battery and negligence arising
out of Blackburn's administration of pepper spray.
Blackburn moved for summary judgment based on the affirmative
defense of official immunity, which the trial court granted.
Hernandez timely appealed the judgment.
review a trial court's ruling on a motion for summary
judgment de novo. See Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009) (citation omitted). We take as true all evidence
favorable to the nonmovant and resolve doubts the
nonmovant's favor. Id. (citations omitted);
Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546,
548-49 (Tex. 1985) (citations omitted). No issues of material
fact may exist. See Mann Frankfort Stein & Lipp
Advisors, Inc., 289 S.W.3d at 848 (citation omitted);
see also Tex. R. Civ. P. 166a(c). If the movant
meets his burden, the burden then shifts to the nonmovant to
raise a genuine issue of material fact. Centeq Realty,
Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)
(citations omitted). When a defendant moves for summary
judgment on the affirmative defense of official immunity, the
defendant must conclusively establish each element of the
defense as a matter of ...