Harris County v. Ochoa

• Decision Date: 28 July 1994
• Docket Number: No. C14-93-00714-CV,C14-93-00714-CV
• Citation: 881 S.W.2d 884
• Parties: HARRIS COUNTY, Deputy Natho and Deputy Glazier, Appellants, v. Lilia OCHOA, Individually and as Representative of the Estate of Jose Ochoa Gonzales, Deceased, Richardo Ochoa Rodriguez, Martha de la Garza and Carlos de la Garza, Individually, and as Next Friends of Cesar Gabriel de la Garza, a Minor, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 884

881 S.W.2d 884

HARRIS COUNTY, Deputy Natho and Deputy Glazier, Appellants, v. Lilia OCHOA, Individually and as Representative of the

Estate of Jose Ochoa Gonzales, Deceased, Richardo Ochoa

Rodriguez, Martha de la Garza and Carlos de la Garza,

Individually, and as Next Friends of Cesar Gabriel de la

Garza, a Minor, Appellees.

No. C14-93-00714-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

July 28, 1994.

Rehearing Denied Aug. 25, 1994.

Barbara Baruch, Houston, for appellants.

Robert G. McConn, Pat Tulinski, Houston, for appellees.

Before ROBERTSON, CANNON and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

This is an interlocutory appeal of the denial of a motion for summary judgment in a personal injury, wrongful death, and survival action. Appellees, Lilia Ochoa, Individually and as Representative of the Estate of Jose Ochoa Gonzales, Deceased, Richardo Ochoa Rodriguez, Martha De La Garza and Carlos De La Garza, Individually, and as Next Friends of Cesar Gabriel De La Garza, a Minor, filed suit against Juan Carlos Guiterrez and appellants, Deputy Dewain Myles Natho, Deputy William Arthur Glazier, and Harris County. Appellees alleged that the deputies were negligent in initiating and maintaining pursuit of a vehicle driven by Guiterrez and that Harris County was vicariously liable for such negligence. Appellants answered by general denial and raised the affirmative defenses of governmental, official and qualified, good faith immunity. Appellants then moved for summary judgment claiming that they were immune from civil liability for their negligence as a matter of law. The trial court denied the motion. In two points of error, appellants contend that the trial court erred in denying their motion for summary judgment based on official and governmental immunity. We reverse and render.

We will view the facts in the light most favorable to the non-movants, appellees. Around 1:49 a.m. on October 27, 1991, Deputies Dewain Myles Natho, William Arthur Glazier, and Curtis Stevenson of the Harris County Constable's Office were on routine patrol. The deputies were in front of a Stop-N-Go convenience store at the intersection of Wilcrest and Briar Forest. Deputy Stevenson was sitting in his patrol car talking to Deputies Natho and Glazier, who were standing at his driver's side door. Deputy Stevenson heard a vehicle's tire hit the curb on Wilcrest.

Deputies Natho and Glazier ran and jumped into their patrol car and followed the vehicle driven by Juan Carlos Guiterrez down Wilcrest. Deputy Stevenson started his car and pulled out onto Wilcrest. He accelerated to catch up with the other deputies. Deputy Stevenson saw the other deputies turn left onto Westheimer and heard Deputy Natho call dispatch with a license plate number. Deputy Natho then called the station again with the license plate number and advised them that they were westbound on Westheimer. Deputy Stevenson heard Deputy Natho call again and state "it looks like they're going to run," and then "they're running." The vehicles were speeding at a high rate of speed.

Dispatch then called Deputy Stevenson's unit, and he advised them that he was already in the pursuit. Following behind the other deputies on Westheimer, Deputy Stevenson could see the deputies ahead with their emergency lights on. Deputy Stevenson activated his emergency equipment and proceeded westbound on Westheimer. He later heard Deputy Natho call dispatch and tell them "to notify the city so we can get some help with this." Deputy Stevenson noted that it was difficult to hear Deputy Natho over the radio because of both of their sirens. As Deputy Stevenson approached the intersection of Westheimer and Grey Falls, he could see the deputies approach the intersection of Westheimer and Dairy Ashford. Guiterrez drove through a red light at the intersection of Westheimer and Dairy Ashford and collided with Caesar Gabriel De La Garza's pick-up truck, injuring him and killing his grandfather, Jose Ochoa Gonzales, who was a passenger in the truck.

Generally, the denial of a summary judgment is interlocutory and unappealable. Schlipf v. Exxon Corp., 644 S.W.2d 453, 454 (Tex.1982). However, appellants brought this appeal pursuant to section 51.014(5) of the Texas Civil Practice and Remedies Code, which allows officers or employees of the state or its political subdivision to appeal a denial of a motion for summary judgment based on an assertion of immunity. TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(5) (Vernon Supp.1994). Because of the limited appellate jurisdiction of this appeal, we will only address the immunity defense and not the merits of the case.

In their first and second points of error, appellants assert that the trial court erred in denying their motion for summary judgment based on official and governmental immunity. Specifically, appellants argue that they conclusively proved all the essential elements of their immunity defense, and there were no genuine issues of material fact.

We must apply the same standard of review for the denial of a summary judgment as for the granting of a summary judgment. The movant for summary judgment has the burden to show that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985). In deciding whether a disputed material fact issue exists, the evidence must be viewed in favor of the non-movant, resolving all doubts and indulging all reasonable inferences in her favor, and it is taken as true. Id. at 548. A defendant as movant must either: (1) disprove at least one element of each of plaintiff's theories of recovery; or (2) plead and conclusively establish each essential element of an affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979). If the movant establishes his right to judgment as a matter of law, the burden shifts to the non-movant to raise fact issues precluding summary judgment. Id. at 678.

A summary judgment may be upheld on appeal on only those grounds expressly set out in the motion for summary judgment. TEX.R.CIV.P. 166a(c); Brooks Fashion Stores, Inc. v. Northpark Nat'l Bank, 689 S.W.2d 937, 941 (Tex.App.--Dallas 1985, no writ).

In their motion for summary judgment, appellants asserted that no genuine issues of material fact existed, and they were entitled to summary judgment as a matter of law. Specifically, appellants argue that Deputies Glazier and Natho were entitled to qualified or official immunity from suit. Further, they argued that Harris County was not vicariously liable absent the liability of the deputies and that it was immune from liability for the claims pled against it for its own acts.

Appellants rely solely on the affidavits of Deputy Glazier and Deputy Natho as summary judgment proof to support their motion. Deputy Glazier's affidavit stated in part:

When I made the decision to stop Juan Carlos Guiterrez' vehicle, I knew that he had driven in a way that was dangerous to the public, because he barely missed the pedestrian on the sidewalk on Wilcrest, and because he fled from my vehicle. When I decided to pursue Juan Carlos Guiterrez, I believed that the time of night, the minimal traffic, the commercial nature of the area in which nearly every store was closed to business, and the large road with numerous lanes on which we were traveling all diminished any risk from the chase itself, while Guiterrez posed a significant risk to the public. I believed, and in my opinion any reasonably prudent police officer in my position would also believe that during the pursuit the need to stop Juan Carlos Guiterrez's vehicle outweighed the risk to the public by way of pursuit.

During the pursuit, I had my emergency lights and siren on, as well as my headlights. I never went through a red light or through a stop sign during the entire chase. The chase lasted less than two (2) minutes before I dropped back because of increase risk to the public, and slightly longer than two minutes until the accident occurred.

Deputy Natho's affidavit read in part:

In my opinion, considering the road (8 lanes), weather (clear and dry), the lighting (well lit), the traffic (light) and lack of pedestrian traffic, the danger posed to us, the suspects and the public from a pursuit on Westheimer was far less than the danger posed by the suspect considering the manner in which the suspect drove and the circumstances. This opinion is based on my observation, my training and three (3) years patrol experience. I believed that it was reasonable to pursue the Oldsmobile during the time we actually pursued it. As soon as there appeared to be an increasing risk to the public we stopped the pursuit. However, the suspects continued to flee and disobey traffic control lights, accelerated as we slowed down and collided with the Plaintiff's vehicle.

In my opinion, any reasonably prudent peace officer in my position would believe that during the pursuit, the need to stop Juan Carlos Guiterrez's Oldsmobile vehicle outweighed the risk to the public by way of our pursuit considering all of the circumstances.

A summary judgment may be based on uncontroverted testimonial evidence of an interested witness "if the evidence is clear, positive and direct, otherwise credible and free from contradiction and inconsistencies, and could have been readily controverted." TEX.R.CIV.P. 166a(c). We find that Glazier and Natho's summary judgment proof meets these criteria.

To be entitled to a summary judgment on the affirmative defense of official immunity, appellants had the burden to establish all the essential elements as a matter of law. See Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). Government employees are entitled to official immunity from suit arising from: (1) the performance of their discretionary duties; (2) in good faith; and (3) within the scope of their authority. City of Lancaster v....