Travis v. City of Mesquite

• Decision Date: 20 May 1992
• Docket Number: No. C-8576,C-8576
• Citation: 830 S.W.2d 94
• Parties: Brenda Ann TRAVIS, Individually and as Next Friend of Jason Wayne Travis, et al, Petitioners, v. The CITY OF MESQUITE, Texas, et al, Respondents.
• Court: Texas Supreme Court

Page 94

830 S.W.2d 94

Brenda Ann TRAVIS, Individually and as Next Friend of Jason Wayne Travis, et al, Petitioners, v. The CITY OF MESQUITE, Texas, et al, Respondents.

No. C-8576.

Supreme Court of Texas.

May 20, 1992.

Edward H. Moore, Jr., Rita M. Zimmer, Dallas, Richard N. Countiss, Houston, for petitioners.

Edwin E. Wright, III, Ronald D. Wren, Dallas, for respondents.

ON MOTION FOR REHEARING

GAMMAGE, Justice.

Respondents' motion for rehearing is overruled. This court's opinions of December 31, 1990, are withdrawn and the opinions following are substituted in their place.

The issue in this case is whether police officers are insulated from liability for their decision to engage in a high-speed chase when the pursued vehicle collides with a third party, no matter how much danger the chase poses to others using the highway. The trial court rendered summary judgment for the city and the four police officers involved in the chase. With one justice dissenting, the court of appeals affirmed, holding that as a matter of law the police officers' actions could not constitute a proximate cause of the accident. 764 S.W.2d 576. We reverse and remand as to the two officers instituting the pursuit and the city, because the summary judgment evidence raised a fact issue whether the decision to pursue, under the facts and circumstances, was a proximate cause of the accident. We affirm the summary judgment for the two officers who merely responded to the radio call for assistance.

While working off-duty as late-night security guards at a truckstop, Mesquite police officers Vestal Ashby and Johnny McClure saw Stephen Adkins driving a vehicle (a "Z-28") in the back lot of the truckstop. Eric Lovell Wilson and Evelyn Anne Vestal were also in the car. Activity around the car made Ashby and McClure suspicious that the occupants were involved in prostitution. They approached Adkins' car and asked for his identification. After Adkins produced it, Ashby and McClure instructed Adkins to drive to the front lot of the truckstop and to wait there until the officers had checked his identification.

Adkins drove to the front lot but instead of stopping accelerated into the street. Ashby and McClure immediately pursued Adkins and also radioed the Mesquite Police Department. Officers Jim Duckworth and Sam McDonald heard the radio call and proceeded toward the scene.

Fleeing at a high rate of speed, Adkins went the wrong way onto a one-way highway access road. Ashby and McClure chased Adkins, also going the wrong way down the access road. Duckworth and McDonald entered the access road a mile or so further up the street going the correct direction. Their stated intention was to cut off Adkins from going the wrong way. The two sets of police cars were converging on Adkins from different directions.

Cresting a hill, Adkins crashed head-on into Brenda Travis' car, killing Leonel Lozano and injuring Travis and other passengers. Summary judgment evidence indicated that the whole chase and collision occurred in less than two minutes. While it is unclear whether both police vehicles had their sirens on, this evidence shows that at least the Duckworth and McDonald police car siren was sounding.

Travis, Lozano's survivors and the passengers sued the four police officers and the city of Mesquite, alleging negligence gross negligence, and violations of their civil rights under 42 U.S.C. § 1983 (1982) ["Section 1983"]. Plaintiffs also sued Adkins and his two passengers for negligence and gross negligence (and other grounds). The trial court granted a partial summary judgment requested by the police officers and the city disposing of the Section 1983 causes of action, but denied summary judgment as to the other claims. Those defendants then filed a Motion to Reconsider and Supplement Defendants' First Amended Motion, asserting as new grounds for summary judgment on the remaining claims (1) the lack of proximate cause as a matter of law, based on Dent v. City of Dallas, 729 S.W.2d 114 (Tex.App.--Dallas 1986, writ ref'd n.r.e.), and (2) the impossibility of respondeat superior liability of the City of Mesquite absent individual liability on the part of the police officers. After reconsideration, the trial court granted final summary judgment in favor of the City of Mesquite and the police officers, and severed plaintiffs' causes of action against them from plaintiffs' causes of action against Adkins and his two passengers.

Included in the summary judgment evidence were the depositions of Officers McDonald, Duckworth, Ashby and McClure. Plaintiffs pointed out portions of these depositions to raise fact issues precluding summary judgment. Ashby's deposition includes the following testimony:

Q. And you knew at the time that you and Officer McClure began this chase that injuries as a result of wrecks were a possible result of pursuit situations, right?

A. Yes, sir.

* * * * * *

Q. And you knew that once you all headed east on the service road, that either your car or the Z-28 could possibly become involved in a head-on collision, right?

A. That's correct.

The depositions of each of the other three officers include similar testimony, which we set forth in the margin. ¹ Notwithstanding this summary judgment evidence, a majority of the court of appeals panel concluded that as a matter of law the police officers' decisions both to initiate and continue chase, under the circumstances presented, could not have been a proximate cause of the collision. We hold the court of appeals misapplied the proximate cause doctrine.

The two elements of proximate cause are cause in fact and foreseeability. City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex.1987). "Cause in fact" means that the act or omission was a substantial factor in bringing about the injury, and without it harm would not have occurred. Id.; Kerby v. Abilene Christian College, 503 S.W.2d 526, 528 (Tex.1973). The summarized and quoted summary judgment evidence raises the inference that Adkins drove down the access road at an excessive speed because of the police decision to give chase. There was summary judgment evidence that the conduct of the police officers was a cause in fact of the accident in question, and of the injuries for which plaintiffs seek recovery.

"Foreseeability" means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549-50 (Tex.1985); Missouri Pac. RR. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977). Foreseeability does not require that a person anticipate the precise manner in which injury will occur once he has created a dangerous situation through his negligence. Brown v. Edwards Transfer Co., 764 S.W.2d 220, 222 (Tex.1988); El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex.1987). Although the criminal conduct of a third party may be a superseding cause which relieves the negligent actor from liability, the actor's negligence is not superseded and will not be excused when the criminal conduct is a foreseeable result of such negligence. Poole, 732 S.W.2d at 314; Nixon, 690 S.W.2d at 550; RESTATEMENT (SECOND) OF TORTS § 448 (1965). There can be concurrent proximate causes of an accident. All persons whose negligent conduct contributes to the injury, proximately causing the injury, are liable. Poole, 732 S.W.2d at 313; Strakos v. Gehring, 360 S.W.2d 787, 789 (Tex.1962); McAfee v. Travis Gas Corp., 137 Tex. 314, 323, 153 S.W.2d 442, 447 (1941). When the intervening illegal negligent act is foreseeable, it does not negate the continuing proximate causation and consequent liability of the initial actor. Nixon, 690 S.W.2d at 550.

We recognize that police officers must make their decisions about pursuing a fleeing suspect rapidly while under pressure, but we have concluded that there is no special statutory provision excepting police officers from the recited legal standards for proximate cause. Police officers must balance the risk to the public with their duty to enforce the law to choose an appropriate course of conduct. Public safety should not be thrown to the winds in the heat of the chase.

Our state legislature has enacted at least two statutes applying to police cars as emergency vehicles stating the driver is not relieved of "the duty to drive with due regard for the safety of all persons [using the highway]." ² The well-reasoned dissent in the court of appeals correctly concluded that the policy embodied in those statutes does not shield police officers from liability for automobile accidents caused by the pursuit. Under similar statutory schemes and facts involving high-speed police pursuits in which the pursued vehicle injures innocent third parties, the courts of other jurisdictions have rejected the "no duty" and "no proximate cause as a matter of law" rationales of older cases which insulated police from liability. ³ We regard these as the better reasoned cases.

The decision to initiate or continue pursuit may be negligent when the heightened risk of injury to third parties is unreasonable in relation to the interest in apprehending suspects. Smith v. City of West Point, 475 So.2d 816, 818 (Miss.1985); Oberkramer v. City of Ellisville, 650 S.W.2d 286, 292-93 (Mo.App.1983). We agree with the Supreme Court of Connecticut's statement, in a case involving police officers' conduct in maintaining a police pursuit at high speeds in the wrong direction on a busy one-way street, to apprehend suspects thought to be too young to have drivers' licenses:

The intervention of negligent or even reckless behavior by the driver of the car whom the police pursues does not, under the emergent majority view, require the conclusion that there is a lack of proximate cause between police negligence and an innocent victim's injuries.

Tetro v. Town of Stratford, 189 Conn. 601, 604, 458 A.2d 5, 8 (1983).

We hold that fact issues...