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Hernandez v. Blackburn

Court of Appeals of Texas, Ninth District, Beaumont

June 13, 2019

IRAM ALEJANDRO HERNANDEZ, Appellant
v.
KEVIN BLACKBURN, Appellee

          Submitted on December 10, 2018

          On Appeal from the 258th District Court Polk County, Texas Trial Cause No. CIV29742

          Before Kreger, Horton and Johnson, JJ.

          MEMORANDUM OPINION

          CHARLES KREGER JUSTICE

         Iram 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.[1] 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.

         Background

         On 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.

         According 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 fighting stopped.

         Hernandez 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 pepper sprayed.

         Hernandez's 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.

         Hernandez 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.

         Standard of Review

         We 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 ...


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