City of Houston v. Newsom, C14-92-01215-CV

• Decision Date: 24 June 1993
• Docket Number: No. C14-92-01215-CV,C14-92-01215-CV
• Citation: 858 S.W.2d 14
• Parties: CITY OF HOUSTON, R.M. Zumwalt, and C.W. Stivers, Appellants, v. Charles NEWSOM, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 14

858 S.W.2d 14

CITY OF HOUSTON, R.M. Zumwalt, and C.W. Stivers, Appellants, v. Charles NEWSOM, Appellee.

No. C14-92-01215-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

June 24, 1993.

Andrea Chan, Houston, for appellants.

Randy L. Wooten, Houston, for appellee.

Before ROBERTSON and CANNON, JJ., and ROBERT E. MORSE, Jr., J., sitting by designation.

OPINION

ROBERTSON, Justice.

Appellants, City of Houston, R.M. Zumwalt, and C.W. Stivers appeal an interlocutory order denying their motion for summary judgment based on official immunity of the officers. We have jurisdiction over this interlocutory appeal pursuant to § 51.014(5) of the Texas Civil Practices an Remedies Code. TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(5) (Vernon Supp.1993); see City of Houston v. Kilburn, 849 S.W.2d 810 (Tex.1993) (per curiam). In one point of error, appellants' contend the trial court erred as a matter of law in denying their motion for summary judgment based on official immunity. We reverse and render.

The following facts are undisputed. On January 22, 1992, Officer Stivers received information that a wanted felon, Minh Dang Nguyen, would be at a Houston fitness club at approximately 4:30 p.m. The officer was told that Nguyen would be driving a stolen white Toyota Celica, and that he would be in possession of a .38 revolver. Officer Stivers, Sergeant Zumwalt and other members of the Westside Tactical Unit set up surveillance at the fitness center.

During the surveillance, the officers spotted Nguyen, along with a passenger, entering the parking lot in a white Toyota. The officers identified themselves as police and attempted to apprehend both Nguyen and his passenger. The police quickly subdued the passenger as he exited the car, however, Nguyen ran across the parking lot. The officers saw that Nguyen had a gun and again ordered him to stop. Nguyen looked over his shoulder and pointed his gun toward the officers as he ran. Sergeant Zumwalt, in fear for his life, discharged his gun three times. Officer Stivers also discharged his gun once. At some point Nguyen dropped his gun but continued to run away.

Officer Stivers caught Nguyen in a stairwell inside the fitness club. Nguyen tried to escape and in doing so caused Officer Stiver's gun to discharge accidently. Sergeant Zumwalt noticed Nguyen had been injured and requested an ambulance.

Sergeant Zumwalt then learned that a bystander, Charles Newsom, appellee, had been injured by a stray bullet. An additional ambulance was requested. Newsom sustained an injury to his elbow. Newsom brought suit against appellants to recover damages sustained by him when he was struck by the stray bullet. Newsom alleges that the officers acted in a negligent manner, and by their failure to exercise ordinary care under the circumstances, proximately caused his injuries. He alleges the city was negligent through its employees and that this negligence was also a proximate cause of the incident and the injuries he sustained.

The city and the two officers moved for summary judgment based on the qualified immunity of the officers, the city's governmental immunity based on the officer's qualified immunity, and the non-existence of a cause of action under the Texas Tort Claim Act. See TEX.CIV.PRAC. & REM.CODE ANN. §§ 101.021, 101.055, 101.056 (Vernon 1986 and Supp.1992). The trial court denied appellants' motion.

In a review of a summary judgment, the issue on appeal is whether the movant met his burden for summary judgment by establishing that there exists no genuine issue of material fact and he is entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979); TEX.R.CIV.P. 166a. The nonmovant is entitled to have all reasonable inferences made and all doubts resolved in his favor. University of Texas Health Science Center at Houston v. Big Train Carpet of El Campo, Inc., 739 S.W.2d 792 (Tex.1987). A motion for summary judgment based on an affirmative defense requires the movant prove conclusively all elements of the affirmative defense as a matter of law such that there is no genuine issue of material fact. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).

Officer Stivers and Sergeant Zumwalt based their motion for summary judgment on the doctrine of qualified or official immunity. The city based its immunity on that of the officers. Employees of governmental entities are not subject to the waiver of immunity provided by the Texas Tort Claim Act to the extent that individual immunity from a tort claim exists. TEX.CIV.PRAC. & REM.CODE ANN. § 101.026 (Vernon 1986). Government officials have a common-law immunity from personal liability while performing discretionary duties in good faith within the scope of their authority. Travis v. City of Mesquite, 830 S.W.2d 94, 102-05 (Tex.1992) (Cornyn, J., concurring); Campbell v. Jones, 153 Tex. 101, 264 S.W.2d 425, 427 (1954); Esparza v. Diaz, 802 S.W.2d 772, 778 (Tex.App.--Houston [14th Dist.] 1990, no writ); Carpenter v. Barner, 797 S.W.2d 99, 101 (Tex.App.--Waco 1990, writ denied). The granting of official immunity evolved out of a public policy that encourages public officers to carry out their duties without fear of personal liability. Carpenter, 797 S.W.2d at 101. Peace officers are protected by official immunity. Id. Justice Cornyn, in Travis, stated:

[n]owhere else in public service is official immunity more appropriate or necessary than in police work. In their routine work, police officers must be free to make split-second judgments in good faith based on their experience and training, without fear of personal liability. To hold otherwise "would likely cause other peace officers under similar circumstances to flinch from acting because of fear of liability." "Creating that potential does not serve the public interest." Were there no immunity from personal liability under such circumstances, "the prudent would be reluctant to enter governmental service and even competent persons who entered public life would not be zealous in discharging their duties."

Travis, 830 S.W.2d at 103 (citations omitted).

Neither side disputes that the officers were performing discretionary duties within the scope of their authority. Both appellants and appellee focus on whether the officers performed these duties in good faith. Justice Cornyn, in his concurring opinion in Travis, gave a detailed analysis of what a party claiming immunity must prove to support a finding of good faith. Travis, 830 S.W.2d at 103-04. Justice Cornyn stated:

a proper resolution of the good faith element in the affirmative defense of official immunity requires an inquiry into the permissible intentions of the police officer and the reasonableness of the officer's actions in light of the risk of harm to the public.

* * * * * *

... an officer fails to act in "good faith" if:

(1) the officer knows that a clear risk of harm to the public in continuing the pursuit substantially outweighs the need to immediately apprehend the suspect (the subjective element); or

(2) a reasonably prudent police officer, under the same or similar circumstances, would know that the clear risk of harm to the public in continuing the pursuit substantially outweighs the need to immediately apprehend the suspect (the objective element).

Id. at 104. A plaintiff must defeat one or more of the elements of the affirmative defense of official immunity once the defendant establishes a prima facie case for...