City of La Joya v. Herr

• Decision Date: 01 March 2001
• Docket Number: No. 13-00-535-CV,13-00-535-CV
• Citation: 41 S.W.3d 755
• Parties: (Tex.App.-Corpus Christi 2001) CITY OF LA JOYA AND RENE SOLIS, JR., Appellants, v. BERTON HERR, INDIVIDUALLY, TED HERR, INDIVIDUALLY, AND BERTON HERR AND TED HERR ON BEHALF OF THE ESTATE OF FLORINE B. HERR, DECEASED, Appellees.
• Court: Texas Court of Appeals

Page 755

41 S.W.3d 755 (Tex.App.-Corpus Christi 2001)

CITY OF LA JOYA AND RENE SOLIS, JR., Appellants, v. BERTON HERR, INDIVIDUALLY, TED HERR, INDIVIDUALLY, AND BERTON HERR AND TED HERR ON BEHALF OF THE ESTATE OF FLORINE B. HERR, DECEASED, Appellees.

No. 13-00-535-CV

Court of Appeals of Texas, Corpus Christi.

March 1, 2001

On appeal from the 370th District Court of Hidalgo County, Texas. [Copyrighted Material Omitted] Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

OPINION

Hinojosa, Justice.

This is an interlocutory appeal from the denial of a motion for summary judgment based on an assertion of official immunity.¹ By two issues, appellants, the City of La Joya and its employee, Rene Solis, Jr., complain the trial court erred: (1) in denying Solis's motion for summary judgment based on official immunity, and (2) in denying the City's motion for summary judgment based on sovereign immunity derived from Solis's official immunity. Because we hold appellants did not prove that Solis was entitled to official immunity and did not establish that the City was entitled to sovereign immunity, we affirm the trial court's order denying appellants' motion for summary judgment.

A. Traditional Summary Judgment

When we review a trial court's decision on a traditional motion for summary judgment filed pursuant to Texas Rule of Civil Procedure 166a(c), we follow these well-established rules:

(1) the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;

(2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and

(3) every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant.

See American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see also Tex. R. Civ. P. 166a(c). A defendant's motion for summary judgment should be granted if he disproves at least one essential element of each of the plaintiff's causes of action, or if he establishes all the elements of an affirmative defense as a matter of law. Grinnell, 951 S.W.2d at 425; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Evidence favoring the movant's position will not be considered unless it is uncontradicted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). We accept as true evidence in support of the motion if not controverted. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Once the movant establishes its right to summary judgment as a matter of law, the burden shifts to the nonmovant to offer any issue or evidence that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

B. Background and Procedural History

Taking the evidence favorable to appellants as true and resolving all reasonable inferences and doubts in their favor, the facts of this case are as follows. Solis is employed by the City of La Joya as a police officer. On the morning of May 27, 1996, he was on duty in his patrol vehicle, traveling westbound on Expressway 83 in La Joya, when he observed an eastbound vehicle exceeding the posted thirty-mile-per-hour speed limit. He made a U-turn at a crossover, intending to stop the speeding vehicle. He did not radio the La Joya police dispatcher concerning the traffic violation or his intention to conduct a traffic stop. Solis activated the overhead "wig-wag" lights of his patrol unit, but not its siren. He accelerated to catch up with the speeder. He was going faster than the thirty-mile-per-hour speed limit. As he approached the intersection of Expressway 83 and Farm to Market Road 2521 (also known as Leo Avenue) in La Joya, he noticed Florine Herr's vehicle in the westbound left-turn lane. Solis took his foot off the accelerator and observed Herr's vehicle, but still did not activate the siren. Solis had the green light, so he proceeded eastbound through the intersection. Herr turned her vehicle to the left, directly into the path of Solis's patrol car. In his affidavit in support of the motion for summary judgment, Solis stated:

Ms. Herr's vehicle never stopped or slowed down, it just turned in front of my patrol car and collided with me. It appeared to me that Ms. Herr never saw the traffic light or the patrol car with its emergency lights activated.²

Solis braked and swerved to the right, causing the patrol car to skid. The cars collided, and Herr died several weeks later from injuries sustained in the collision.

Herr's estate and survivors filed this negligence action against appellants. Appellants subsequently moved for summary judgment on official immunity and sovereign immunity grounds. The trial court denied the motion. This interlocutory appeal ensued.

C. Governmental Immunity

Governmental entities are immune from liability, except in situations where the legislature has waived that immunity. See Tex. Civ. Prac. & Rem. Code Ann. §§101.021, 101.025 (Vernon 1997). Unless the government has waived immunity, the trial court lacks subject matter jurisdiction. City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex. App.--Austin 1998, no pet.). The Texas Tort Claims Act creates governmental liability for the wrongful acts, omissions, or negligence of a governmental employee that results in property damage, personal injury or death if: (1) the injury or property damage results from the operation of a motor driven vehicle or equipment; (2) the employee would be personally liable to the claimant according to Texas law; and (3) the governmental unit would be liable to the claimant under Texas law if the governmental unit were a private person. Tex. Civ. Prac. & Rem. Code Ann. §101.021(1) (Vernon 1997); see Cameron Co. v. Carrillo, 7 S.W.3d 706, 710 (Tex. App.--Corpus Christi 1999, no pet.).

D. Solis's Motion for Summary Judgment

By their first issue, appellants contend the trial court erred in denying Solis's motion for summary judgment based on official immunity. Official immunity is an affirmative defense that protects government employees from personal liability. University of Houston v. Clark, 43 Tex. Sup. Ct. J. 874, 875 (June 15, 2000);³ City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Government employees are entitled to official immunity from a suit arising from the performance of their (1) discretionary duties (2) in good faith (3) as long as they are acting within the scope of their authority. Clark, 43 Tex. Sup. Ct. J. at 875; Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997); Chambers, 883 S.W.2d at 653. To obtain summary judgment on official immunity, the governmental employee must conclusively prove each element of the defense. Clark, 43 Tex. Sup. Ct. J. at 875; Kassen v. Hatley, 887 S.W.2d 4, 8-9 (Tex. 1994).

The purpose of official immunity is to insulate the functioning of government from the harassment of litigation, not to protect erring officials. Kassen, 887 S.W.2d at 8; Carrillo, 7 S.W.3d at 709. The public would suffer if government officers, who must exercise judgment and discretion in their jobs, were to be subject to civil lawsuits that second-guessed their decisions. Kassen, 887 S.W.2d at 8; Carrillo, 7 S.W.3d at 709. When official immunity shields a governmental employee from liability, sovereign immunity shields the governmental employer from vicarious liability. Clark, 43 Tex. Sup. Ct. J. at 875; DeWitt v. Harris Co., 904 S.W.2d 650, 653 (Tex. 1995).

In the instant case, it is undisputed that Solis was acting within the scope of his authority. At issue is whether Solis acted in good faith while performing a discretionary act.

1. Good Faith

A police officer acts in good faith in a pursuit case if a reasonably prudent officer, under the same or similar circumstances, could have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm to the public in continuing the pursuit. Chambers, 883 S.W.2d at 656. In Wadewitz, the supreme court stated:

The "need" aspect of the test refers to the urgency of the circumstances requiring police intervention. In the context of an emergency response, need is determined by factors such as the seriousness of the crime or accident to which the officer responds, whether the officer's immediate presence is necessary to prevent injury or loss of life or to apprehend a suspect, and what alternative courses of action, if any, are available to achieve a comparable result. The "risk" aspect of good faith, on the other hand, refers to the countervailing public safety concerns: the nature and severity of harm that the officer's actions could cause (including injuries to bystanders as well as the possibility that an accident would prevent the officer from reaching the scene of the emergency), the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent officer.

Wadewitz, 951 S.W.2d at 467 (a case involving a patrol car that crashed into another vehicle while responding to an emergency call).

The Wadewitz factors apply to good faith determinations in police pursuits as well as emergency responses. Clark, 43 Tex. Sup. Ct. J. at 877. In both situations, an assessment by a police officer of the need to immediately apprehend the suspect necessarily includes the general considerations Wadewitz provides: (1) the seriousness of the crime or accident to which the officer responds; (2) whether the officer's immediate presence is necessary to apprehend a suspect or to prevent injury or loss of life; and (3) what alternative courses of action, if any, are available to achieve a comparable result. Clark, 43 Tex. Sup. Ct. J. at 877. Similarly, in a...