Opinion
NO. 14-21-00107-CV
09-08-2022
CITY OF HOUSTON, Appellant v. Ruben RODRIGUEZ and Frederick Okon, Appellees
Christy L. Martin, for Appellant. Robert A. McAllister, Houston, for Appellee.
Christy L. Martin, for Appellant.
Robert A. McAllister, Houston, for Appellee.
Panel consists of Justices Jewell, Bourliot, and Hassan
MAJORITY OPINION
Meagan Hassan, Justice
Ruben Rodriguez and Frederick Okon (together, "Appellees") were traveling together in a truck when their vehicle was struck by a police officer engaged in a high-speed pursuit. Appellees sued the City of Houston and the City filed a motion for summary judgment, asserting that immunity barred Appellees’ claims. The trial court denied the City's summary judgment motion and the City appealed. For the reasons below, we affirm.
BACKGROUND
In January 2019, Houston Police Department ("HPD") Officers Richard Corral and C. Goodman were assisting HPD Vice officers on a prostitution "sting." As part of this operation, an undercover detective posing as a prostitute agreed to engage in sexual intercourse for money with a male suspect driving a red car. The two planned to meet in a nearby parking lot to complete the transaction. Officers Corral and Goodman were waiting nearby in a marked HPD patrol vehicle when another detective participating in the sting told them an arrest was needed and gave them the suspect's travel direction. Officer Corral drove to the parking lot.
As the officers approached the suspect's vehicle, the suspect drove away. Officer Corral activated his vehicle's emergency lights and siren and pursued the suspect, who did not stop but continued southbound on a Highway 59 service road at a high rate of speed. Officer Goodman informed dispatch of the pursuit and relayed the license plate number of the fleeing vehicle. About three minutes into the chase, dispatch informed the officers that the suspect's vehicle had been reported stolen.
Evading the officers, the suspect drove at high speeds, at one point going the wrong direction on a Beltway 8 service road. After entering and then exiting a car dealership parking lot, the suspect abruptly turned right off the access road and onto a side street. Officer Corral, pursuing closely, attempted to follow. Appellees’ truck was stopped at a stop sign on the side street waiting to turn onto the access road. Seeing the truck, Officer Corral attempted to turn wide around the truck by driving past it, over the curb, and then back onto the side street. As he came off the curb to the side street, Officer Corral's patrol car struck Appellees’ truck.
Appellees sued the City and sought damages for injuries sustained in the collision. Appellees alleged that the collision was a direct and proximate result of Officer Corral's negligence in several respects pertaining to the use, operation, and control of a motor vehicle, for which the City was vicariously liable.
The City filed a traditional motion for summary judgment challenging the trial court's subject matter jurisdiction. Appellees filed a response and an amended response. The trial court denied the City's summary judgment motion and the City filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8).
ANALYSIS
In its summary judgment motion, the City asserted two bases to support its contention that Appellees’ claims are barred by immunity: (1) Officer Corral's official immunity ; and (2) the Texas Tort Claim Act's ("TTCA") emergency response exception. We analyze each ground separately, beginning with an overview of the applicable standard of review.
See Univ. of Houston v. Clark , 38 S.W.3d 578, 580 (Tex. 2000).
I. Standard of Review
We review a summary judgment de novo. Ferguson v. Bldg. Materials Corp. of Am. , 295 S.W.3d 642, 644 (Tex. 2009) (per curiam). We consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if a reasonable fact finder could do so, and disregarding contrary evidence unless a reasonable fact finder could not. See Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006). We must affirm the summary judgment if any of the movant's theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 216 (Tex. 2003).
The party seeking a traditional summary judgment 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. Tex. R. Civ. P. 166a(c) ; Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). A defendant who moves for traditional summary judgment must conclusively negate at least one essential element of each of the plaintiff's causes of action or conclusively establish each element of an affirmative defense. Frost Nat'l Bank v. Fernandez , 315 S.W.3d 494, 508 (Tex. 2010). "On appeal, the summary-judgment movant still bears the burden of showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." City of Houston v. Jenkins , 363 S.W.3d 808, 814 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).
II. Official Immunity
A. Governing Law
Political subdivisions of the state — including cities — are entitled to immunity from suit under the doctrine of governmental immunity. Reata Constr. Corp. v. City of Dallas , 197 S.W.3d 371, 374 (Tex. 2006). Under this doctrine, the City is not liable for the torts of its agents or officers unless there is a constitutional or statutory waiver of immunity. City of Houston v. Collins , 515 S.W.3d 467, 472 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
Section 101.021 of the TTCA grants a limited waiver of immunity against a "governmental unit" for "property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if ... the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and ... the employee would be personally liable to the claimant according to Texas law[.]" Tex. Civ. Prac. & Rem. Code Ann. § 101.021. The City is a governmental unit under this statute. Id. § 101.001(3)(B).
Official immunity is an affirmative defense that protects governmental employees from personal liability. Univ. of Houston v. Clark , 38 S.W.3d 578, 580 (Tex. 2000) ; Collins , 515 S.W.3d at 472. If a governmental employee is entitled to official immunity, then the employee is not "personally liable to the claimant according to Texas law" and section 101.021 ’s limited waiver does not apply to the governmental unit. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 ; Collins , 515 S.W.3d at 472.
A governmental employee is entitled to official immunity for (1) the performance of discretionary duties, (2) within the scope of the employee's authority, (3) provided the employee acted in good faith. Tex. Dep't of Pub. Safety v. Bonilla , 481 S.W.3d 640, 642-43 (Tex. 2015) (per curiam) ; Collins , 515 S.W.3d at 472. Official immunity is an affirmative defense and the burden is on the movant to conclusively prove each element of the defense. Univ. of Houston , 38 S.W.3d at 580 ; Collins , 515 S.W.3d at 472. Because we conclude that showing was not made with respect to whether Officer Corral acted in good faith, we need not address the defense's other elements.
Our dissenting colleague reasons that, because Appellees’ summary judgment response "addressed only the Tort Claims Act's emergency exception and did not respond to the City's official immunity argument, the City was entitled to summary judgment." Dissenting Op. at p. 647. We disagree. "Summary judgments must stand on their own merits." M.D. Anderson Hosp. & Tumor Inst. v. Willrich , 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). Therefore, "[t]he nonmovant has no burden to respond to a summary judgment motion unless the movant conclusively establishes its cause of action or defense." Id. Because we conclude that showing was not made here, Appellees were not required to respond to the City's official-immunity argument. See id.
However, we note that these other two elements likely are satisfied under the facts of this case. The undisputed evidence establishes that Officer Corral was an HPD officer acting within the scope of his employment. See, e.g., City of Lancaster v. Chambers , 883 S.W.2d 650, 658 (Tex. 1994) (officers were acting within the scope of their authority when "each officer was on duty, in a squad car, pursuing a suspect"). The evidence also shows that Officer Corral was performing a discretionary duty. See, e.g., id. at 655 ("[t]he decision to pursue a particular suspect will fundamentally involve the officer's discretion").
In a police pursuit or emergency response case, an officer acts in good faith if a reasonably prudent officer under the same or similar circumstances could have believed that the need for the officer's actions outweighed a clear risk of harm to the public from those actions. Telthorster v. Tennell , 92 S.W.3d 457, 465 (Tex. 2002) ; Gillespie v. Galveston Cnty. Health Dist. , 639 S.W.3d 815, 823 (Tex. App.—Houston [14th Dist.] 2021, no pet.). To satisfy this showing, the City need not prove that all reasonably prudent officers would have taken the same actions. Gomez v. City of Houston , 587 S.W.3d 891, 897 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (en banc). Rather, "the City must prove conclusively that a reasonably prudent officer, under the same or similar conditions, might have reached the same decision." Id. (emphasis in original). That an officer may have been negligent will not defeat good faith; the test of good faith does not inquire into "what a reasonable person would have done", but into "what a reasonable officer could have believed." Telthorster , 92 S.W.3d at 465 ; Gomez , 587 S.W.3d at 897.
Good faith is measured against a standard of objective legal reasonableness, without regard to the police officer's subjective state of mind. Wadewitz v. Montgomery , 951 S.W.2d 464, 466 (Tex. 1997). This determination hinges on how a reasonably prudent officer could have assessed the need to which he was responding versus the risks of his course of action, based on his perception of the facts at the time of the event. Gomez , 587 S.W.3d at 897-98.
In the context of an emergency response, "need" is determined by factors such as: (1) the seriousness of the crime or accident to which the officer is responding; (2) whether the officer's immediate presence is necessary to prevent injury or loss of life or to apprehend a suspect; and (3) what alternative courses of action, if any, are available to achieve a comparable result. Id. at 898. The "risk" aspect refers to the countervailing public safety concerns like: (1) the nature and severity of the harm the officer's actions could cause (including injuries to bystanders); (2) the likelihood that any harm would occur; and (3) whether any risk of harm would be clear to a reasonably prudent officer. Id.
To warrant summary judgment on official immunity, the defendant's proof must sufficiently address these factors. Id. Once the defendant produces competent evidence of good faith, the defense is established unless the plaintiff shows that no reasonable person in the officer's position could have thought the facts justified the officer's actions. Collins , 515 S.W.3d at 473 ; see also Gomez , 587 S.W.3d at 898 ("Only when it has been determined that the governmental unit met this burden [to establish good faith] does the court address whether the nonmovant's evidence raises a genuine issue of material fact on the issue of good faith.").
B. Evidence
In his affidavit included with the City's summary judgment motion, Officer Corral described the events that transpired during the pursuit:
4. ... Officers were informed by vice undercover officers that the suspect attempted to pick up a female vice undercover officer for sex for money. My partner and I were attempting to conduct a traffic stop for prostitution arrest. As we approached the suspect, he began to leave the parking lot, which required immediate response on our part. In a split-second decision, Officer Goodman and I decided to pursue the suspect, and activated emergency lights and siren. The suspect did not stop and instead fled out of the parking lot onto Ponderosa Ln. then heading southbound on the HWY 59 south service road at a high rate of speed. Officer Goodman relayed the information over the air and informed dispatch of our vehicle pursuit and gave the license plate for the red Mercedes.
5. Officer Goodman called the chase over the radio so that I could focus on driving as safely as possible during the pursuit. Calling the chase over the radio is important for our safety as well as that of other motorists. I was trying to stay close enough to the suspect that he could not get away, but keep enough distance to avoid a collision with the suspect, who was driving very erratically. Because it was January, it was already dark outside. The weather was clear and roads were dry. Because it was a Saturday, there were not rush-hour conditions on the freeway, and the traffic was light to medium. The suspect was traveling at a high rate of speed, weaving in-and-out of traffic. At one point, the suspect attempted a u-turn in a u-turn lane underneath hwy. 59. Rather than completing that u-turn, he then made a right turn down the one-way feeder, briefly traveling opposite the flow of traffic. After ensuring there was no oncoming traffic, I followed the suspect as he then turned northbound on the service road to Beltway 8. He then u-turned again, speeding southbound on the northbound service road to Beltway 8 for approximately 10-15 seconds before pulling into the parking lot of a Subaru dealership and looped around the lot.
6. Approximately 3 minutes into the pursuit, dispatch relayed that the vehicle had been reported stolen. At that point, we knew that the suspect had committed two felonies and a misdemeanor: theft of a motor vehicle, and evading officers with a motor vehicle, and solicitation of prostitution. He had also been driving in an exceedingly dangerous manner, risking a head-on collision by driving the wrong direction down the northbound service road to Beltway 8. However, because the suspect had not been identified, we lacked sufficient information to discontinue the pursuit and arrest the suspect at another time. And because the vehicle was stolen, we would not be able
to track down the suspect through vehicle records.
7. The suspect attempted to leave the Subaru dealership to turn right back onto the northbound Beltway 8 service road. Another vehicle was trying to exit the Subaru dealership at the same time. The suspect was able to exit the driveway before the other vehicle, but I got stuck behind the vehicle. I paused before turning right onto the service road and blew my air horn repeatedly so that the other vehicle in the driveway and the other vehicles on the service road would yield to my emergency vehicle. Once I observed the vehicles on the service road stop, I proceeded to turn right onto the service road. All this time, my emergency lights and siren were still activated.
8. The suspect made a sudden right turn onto the next street after the Subaru dealership, which was Forum West Dr. As I attempted to turn east on Forum West Dr., I observed a black truck traveling on Forum West Dr. I attempted to avoid striking the truck, I then hit the curb due to the brakes not working. Then my cruiser struck the bed of the truck.[ ] Officer Goodman informed dispatch of the accident. Officers also informed dispatch that the suspect fled east on Forum West Dr. Although the suspect was not caught, units assisting on the call recovered the stolen vehicle. The total pursuit lasted less than 10 minutes.
9. It is my opinion that my actions in pursuing the fleeing suspect in a stolen vehicle who attempted to solicit sex from an uncover [sic] officer were both reasonable and proper under the circumstances. I considered both the risk of harm to others from the suspect[’]s dangerous driving as well as risk of harm to other drivers from my driving in pursuit. I believe that a reasonably prudent law enforcement officer under the same or similar circumstances could have believed that my actions were justified based on my perception of the facts at the time and that the need to immediately apprehend the evading suspect driving a stolen vehicle after attempting to solicit sex from an undercover officer outweighed my minimal risk of harm to others from my own driving.
In their live pleading, Appellees alleged that Rodriguez's truck was stopped at a stop sign when Officer Corral attempted the right turn onto Forum West Road and struck Rodriguez's truck. These allegations are not disputed and, for purposes of this appeal, we accept them as true.
The City also submitted an affidavit from HPD Sergeant Kelly Li, Jr., who had been employed as an HPD officer for more than 13 years and had "been involved in dozens of high-speed chases." Sergeant Li's affidavit recounts a version of events similar to those detailed by Officer Corral.
Continuing on, Sergeant Li states that his opinions in the affidavit are based on his skill, knowledge, experience, training, and education as a police officer; his conversations with Officer Corral; his review of Officer Corral's body camera footage; and his evaluation of the events and circumstances of the collision. Sergeant Li states that Officer Corral "was reacting to an emergency situation" which "involved split-second decision-making." Sergeant Li opines that Officer Corral's actions were "justified and reasonable" in light of the need to pursue the suspect and the risk of harm to other drivers. Ultimately, Sergeant Li concludes that "another reasonably prudent law enforcement officer, including [him]self, under the same or similar circumstances could have believed that the need to pursue the fleeing suspect in a stolen vehicle who attempted to solicit sex from an undercover officer outweighed any minimal risk of harm to others."
Unlike Officer Corral's affidavit, Sergeant Li's affidavit does not mention that the brakes on Officer Corral's car were "not working" or how this factor affected his risks versus needs analysis.
C. Application
Considering the City's evidence in the light most favorable to Appellees, we conclude the City did not conclusively prove the element of good faith as necessary to warrant summary judgment on its official immunity affirmative defense. See Univ. of Houston , 38 S.W.3d at 580 ; Collins , 515 S.W.3d at 472.
Our decision relies primarily on the facts recounted in Officer Corral's affidavit. Describing the "need" for the high-speed pursuit, Officer Corral points to the following: the suspect was driving erratically at a high rate of speed; the suspect had committed several offenses, including theft of a motor vehicle, evading officers with a motor vehicle, and solicitation of prostitution; and the suspect had not been identified and the vehicle had been stolen, both of which would hinder attempts to arrest the suspect at another time.
With respect to the "risks" of his decision to engage in the high-speed pursuit, Officer Corral recounts that: it was dark outside; the weather was clear; the roads were dry; traffic was light to medium; his vehicle's emergency lights and siren were activated; and he blew his air horn "repeatedly" to alert other vehicles. However, describing the moments before he crashed into Appellees’ truck while attempting to turn onto Forum West Drive, Officer Corral stated that he "attempted to avoid striking the truck" and "then hit the curb due to the brakes not working ." (emphasis added).
Aside from his observation that his brakes were "not working" at the moment of his collision, Officer Corral's affidavit does not elaborate on the condition of his vehicle's brakes at any relevant time. Officer Corral did not state when he became aware of this condition or the extent to which the brakes’ condition impeded his ability to slow down his vehicle or come to a stop at any time before colliding with Appellees’ truck. Other than stating that the condition of his vehicle's brakes caused him to "hit the curb," Officer Corral did not provide any further explanation regarding how his brakes’ deficient condition contributed to his driving, his decision-making, or the cause of the collision with Appellees’ truck.
As we explained above, conclusively establishing good faith depends on satisfying the needs-versus-risks assessment. See Gomez , 587 S.W.3d at 897-98 ; see also City of Houston v. Manning , No. 14-20-00051-CV, 2021 WL 1257295, at *6 (Tex. App.—Houston [14th Dist.] Apr. 6, 2021, pet. denied) (mem. op.) (to conclusively prove good faith, "a governmental defendant's proof must sufficiently address these need/risk factors"). But here, without additional evidence regarding the vehicle's brakes or their role in Officer Corral's decision-making or his driving, that showing cannot be made. Merely stating that a vehicle's brakes were "not working" does not sufficiently address the risks attendant to a high-speed pursuit under these circumstances. Therefore, based on this evidence, the City did not establish that a reasonably prudent officer would have believed the need for his actions outweighed the attendant risks under the circumstances. See Telthorster , 92 S.W.3d at 465 ; see also, e.g., City of Brazoria, Tex. v. Ellis , No. 14-14-00322-CV, 2015 WL 3424732, at *5 (Tex. App.—Houston [14th Dist.] May 28, 2015, no pet.) (the City did not conclusively establish good faith because "Officer Dayton and the City's experts failed to address how the need and risk factors were affected by the building blocking Officer Dayton's view").
See PHI, Inc. v. Tex. Juv. Just. Dep't , 593 S.W.3d 296, 306 (Tex. 2019) ("Correctly using the brakes is perhaps the most important part of the safe operation of a multi-ton steel object.").
Moreover, construing Officer Corral's affidavit in the light most favorable to Appellees, there is a fact question concerning when the officer knew or should have known that his brakes were not working and this fact question precluded the trial court from granting the City's motion for summary judgment. See, e.g., Gomez , 587 S.W.3d at 902-03. According to Officer Corral, he pursued the suspect while the suspect was driving "at a high rate of speed"; this pursuit continued over several different roadways, including the Highway 59 service road, the Beltway 8 service road, and a dealership parking lot. Officer Corral's affidavit states that he made several turns during the course of the pursuit.
Our dissenting colleague takes issue with this conclusion without addressing the fact that Appellees prevailed below and that we are required to view the facts in the light most favorable to them. See Mack Trucks, Inc. , 206 S.W.3d at 582. Instead of honoring this clearly established standard, our colleague suggests we should conclude (without evidence) that Officer Corral neither knew nor should have known his brakes were not working at any time prior to his collision with Appellees. We believe such a conclusion without any supporting evidence both ignores clearly established precedents and amounts to (in the words of our dissenting colleague) "rank speculation". Dissenting Op. at 645.
By driving a vehicle with brakes that "were not working", countervailing public safety concerns rose to a significant level and suggested that (1) vehicles and pedestrians traveling on Forum West Drive were at risk of significant harm from being struck by Officer Corral's vehicle; (2) the likelihood of harm was high, given that Officer Corral was engaged in a high-speed pursuit while driving a vehicle with brakes that "were not working"; and (3) this risk would be clear to a reasonably prudent officer. See id. at 898. Assessing this situation, a reasonably prudent police officer would not have believed that the need to which he was responding outweighed the risks of his course of action. See id. at 897-98.
Therefore, the City failed to conclusively prove that Officer Corral acted in good faith when he undertook the course of action that led to the collision with Appellees’ truck. See Univ. of Houston , 38 S.W.3d at 580 ; Collins , 515 S.W.3d at 472. The trial court did not err by denying the City's summary judgment on official immunity.
We overrule the City's first issue.
III. Emergency Response Exception
A. Governing Law
The TTCA also lists specific circumstances under which a waiver of immunity does not apply. See Tex. Civ. Prac. & Rem. Code Ann. § 101.055 ; City of San Antonio v. Hartman , 201 S.W.3d 667, 671-72 (Tex. 2006). Under the emergency response exception, a governmental entity's immunity is not waived for:
a claim arising ... from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference
or reckless disregard for the safety of others[.]
Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2) ; see also Gomez , 587 S.W.3d at 902.
Under this provision, a governmental employee responding to an emergency situation retains immunity from suit except for actions taken with conscious indifference or reckless disregard for the safety of others. Gillespie , 639 S.W.3d at 819. "Thus, the claimant must show that the operator of the emergency vehicle committed acts or omissions that the driver knew or should have known posed a high degree of risk of serious injury or knew the relevant facts but did not care about the result." Id. at 819-20 (internal quotations omitted).
B. Application
Here, the summary judgment evidence outlined above raises an issue of fact as to whether Officer Corral acted recklessly before his collision with Appellees’ truck.
Viewed in the light most favorable to the nonmovants, the evidence shows that Officer Corral tried completing his turn onto Forum West Drive despite being aware that Appellees’ truck was stopped at the Forum West Drive intersection. Because there is a question of fact concerning whether Officer Corral knew or should have known that his brakes "were not working" at this time, his course of action posed a high degree of risk of serious injury. See Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2) ; see also, e.g., Gomez , 587 S.W.3d at 902-03 (question of fact precluded summary judgment on emergency response exception when evidence showed that the officer "was aware of the rainy weather and wet streets, but he did not reduce his speed below the posted speed limit" and did "not maintain visual contact with the road as he approached the intersection"); Green v. Alford , 274 S.W.3d 5, 29 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (concluding that firefighter's failure to wear required corrective lenses and decision not to use siren were factors supporting finding that firefighter was reckless).
Accordingly, the evidence raises an issue of fact as to whether Officer Corral acted recklessly. See Tex. R. Civ. P. 166a(c) ; Fielding , 289 S.W.3d at 848. Therefore, the trial court did not err by denying the City's motion for summary judgment on the TTCA's emergency response exception.
We overrule the City's second issue.
CONCLUSION
We affirm the trial court's February 9, 2021 order denying the City's traditional motion for summary judgment.
( Jewell, J., dissenting).
DISSENTING OPINION
Kevin Jewell, Justice
Of the City's two summary-judgment arguments, I agree with and would address only the official immunity issue because the City's entitlement to judgment as a matter of law on that ground is clear, and the justices in the majority err in holding otherwise. The court should reverse the trial court's order and render judgment dismissing appellees’ claims against the City for lack of jurisdiction.
The City proved as a matter of law that Officer Corral was protected from personal liability by the doctrine of official immunity because he acted (1) within the scope of his employment, (2) by performing a discretionary function as a government employee, and (3) in good faith. Appellees offered no controverting evidence and did not even contest Officer Corral's entitlement to official immunity. Officer Corral's official immunity shields the City from appellees’ suit, which deprives the trial court of subject-matter jurisdiction.
See Ballantyne v. Champion Builders, Inc. , 144 S.W.3d 417, 424 (Tex. 2004).
See City of San Antonio v. Riojas , 640 S.W.3d 534, 537, 543 (Tex. 2022) ; DeWitt v. Harris County , 904 S.W.2d 650, 653 (Tex. 1995) ; White v. City of Houston , 624 S.W.3d 28, 37 (Tex. App.—Houston [1st Dist.] 2021, no pet.) ; Quested v. City of Houston , 440 S.W.3d 275, 284 n.16 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
The undisputed evidence establishes that Officer Corral was an HPD officer acting within the scope of his employment. The summary-judgment evidence also shows that Officer Corral was performing a discretionary duty.
See, e.g., Johnson v. Campbell , 142 S.W.3d 592, 594 (Tex. App.—Texarkana 2004, pet. denied) (officer in collision while responding to family violence call was in scope of employment).
Whether to engage in a vehicular pursuit of a crime suspect, as well as an officer's actions during the pursuit, are discretionary decisions. City of Lancaster v. Chambers , 883 S.W.2d 650, 655 (Tex. 1994).
The only element with which the majority takes issue is good faith; though appellees conceded the issue in their summary-judgment response and have not revisited the point in their appellate brief. The standards by which we measure good faith in a law-enforcement pursuit case are well-established. Importantly, a governmental defendant's proof must sufficiently address the need-risk factors from Wadewitz. According to the majority, Officer Corral's affidavit failed to adequately address the risk of his vehicle's brakes failing just before the accident. The majority bases its holding on Officer Corral's statement in his affidavit that, as he attempted to turn east on Forum West Drive, he "hit the curb due to the brakes not working." From this statement, the majority concludes a fact question on good faith exists because Officer Corral did not "elaborate on the condition of his vehicle's brakes at any relevant time"; did not "state when he became aware of this condition or the extent to which the brakes’ condition impeded his ability to slow down his vehicle or come to a stop at any time before colliding with Appellees’ truck"; and did not "provide any further explanation regarding how his brakes’ deficient condition contributed to his driving, his decision-making, or the cause of the collision." From the single statement in the affidavit, the majority says a fact question exists "concerning when the officer knew or should have known that his brakes were not working," precluding summary judgment. The majority purports to reach this conclusion based on the principle that, in the summary-judgment context, we read the movant's evidence in the light most favorable to the non-movant. As part of this standard, we afford the non-movant the benefit of every reasonable inference properly drawn in its favor. The court's opinion, however, rests not on reasonable inferences but on rank speculation. The justices in the majority imagine the existence of a fact—that Officer Corral became "aware" that his vehicle had defective brakes during the pursuit—and then reject the City's evidence because it fails to address the imagined fact in the need-risk analysis. The suggestions that Officer Corral's brakes in fact were not working or that he may have been aware that his brakes were not working at any time before the very moment of the incident simply are not reasonable inferences from any statement in either affidavit. There is no suggestion of any issue with the brakes during the pursuit, or that the vehicle's brakes were defective in any way, at any time. The only reasonable inference on that score is the opposite: that the brakes were functional. This is clear from several facts in both affidavits. For example, as the suspect was traveling at a "high rate of speed" and weaving in and out of traffic, Officer Corral controlled his vehicle to remain "close enough to the suspect that he could not get away, but keep enough distance to avoid a collision"; and he was able to maintain pursuit even though the suspect made multiple u-turns, drove the wrong direction on feeder roads, and "looped" around a car dealership parking lot. As the suspect exited the lot, Officer Corral slowed his vehicle to a "pause" after another car blocked the officer's exit. After other cars yielded, Officer Corral was able to continue the pursuit down the feeder road. As the suspect made a sudden right turn off the feeder road, Officer Corral followed but attempted a wide turn to avoid striking appellees’ truck, which was waiting at the stop sign. At that moment, Officer Corral said, his vehicle hit the curb due to the brakes not working. None of these facts remotely suggests that the brakes were not working at any time before the accident or that Officer Corral was aware that they might be defective. Officer Corral simply could not have repeatedly accelerated and slowed the vehicle as he described in his affidavit if his brakes had not been working.
In their summary-judgment response, appellees explicitly acknowledged they were not challenging the issue of Officer Corral's good faith. For example, appellees stated, "it is uncontroverted by Plaintiffs that Defendant has official immunity under the TTCA unless the operator of the emergency vehicle acts recklessly or with conscious disregard and a high degree of risk of harm to others. Plaintiffs’ entire argument is based on the emergency exception." And in their appellate briefing, appellees make no attempt to justify the trial court's ruling as to the official immunity grounds and indeed do not mention the words "good faith."
E.g., Riojas , 640 S.W.3d at 539 ; Wadewitz v. Montgomery , 951 S.W.2d 464, 466 (Tex. 1997) ; Chambers , 883 S.W.2d at 655.
Telthorster v. Tennell , 92 S.W.3d 457, 462 (Tex. 2002) ; Wadewitz , 951 S.W.2d at 467.
See Gulbenkian v. Penn , 151 Tex. 412, 252 S.W.2d 929, 931 (1952) ; Zapata v. Rosenfeld , 811 S.W.2d 182, 183 (Tex. App.—Houston [1st Dist.] 1991, writ denied).
While we review summary-judgment evidence in the light most favorable to the non-movant, we indulge only reasonable inferences, not unreasonable ones. For an inference to be reasonable, it must be deducible from proven facts and not based on speculation. The First Court's statement in Peters is particularly apt: the majority's "inference" regarding the condition of Officer Corral's brakes, or his supposed awareness of his brakes’ condition before the incident, lacks a factual premise and is nothing more than surmise. See Peters , 404 S.W.3d at 6.
See Scripps NP Oper. LLC v. Carter , 573 S.W.3d 781, 790 (Tex. 2019).
Briones v. Levine's Dep't Store, Inc. , 446 S.W.2d 7, 10 (Tex. 1969) (holding that a reasonable inference cannot be based on speculation); Walters v. Am. States Ins. Co. , 654 S.W.2d 423, 426 (Tex. 1983) ; Peters v. Tex. Dep't of Pub. Safety , 404 S.W.3d 1, 6 (Tex. App.—Houston [1st Dist.] 2013, no pet.) ("Although it is certainly true that a fact-finder can draw reasonable inferences from the record, the type of inferences that DPS argues for are not ‘inferences’ at all—just mere speculation and conjecture.").
An officer's good-faith evidence in a pursuit case must account for risks, but only known risks. We consider only the information that the officer had available at the time he made his decisions, not facts that subsequently became known to him. In these situations, officers need not address a risk that did not arise or become apparent during the actual pursuit. The court cites City of Brazoria v. Ellis as support for its holding, but that case is clearly inapplicable because it was there undisputed that a building blocked part of the officer's view during a pursuit, but the officer did not address in his affidavit the potential risks presented by the obscured view before continuing the pursuit. In City of Brazoria , therefore, the risk that the officer's view was obscured by a building was known to the officer before he proceeded.
See Chambers , 883 S.W.2d at 656-57.
Telthorster , 92 S.W.3d at 465.
See Univ. of Houston v. Clark , 38 S.W.3d 578, 586 (Tex. 2000).
City of Brazoria v. Ellis , No. 14-14-00322-CV, 2015 WL 3424732, at *5 (Tex. App.—Houston [14th Dist.] May 28, 2015, no pet.) (mem. op.).
The circumstance here, in contrast, is no different than an officer encountering an unexpected obstacle in the road, like in Harris County v. Southern County Mutual Insurance Co. , where the officer lost control of his vehicle after hitting a road bump. Did the court in that case reject the officer's good-faith evidence because the officer failed to assess the risk of the road bump in his affidavit? Did the court surmise as a "reasonable inference" that the officer might have been "aware" that a bump was in the road and yet failed to account for the bump in his need-risk assessment? Or that the officer should have seen the bump? No. The court held that the official immunity elements, including good faith, were conclusively established. That is what we should hold.
Harris County v. S. Cnty. Mut. Ins. Co. , No. 01-13-00870-CV, 2014 WL 4219472, at *9 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (mem. op.).
The City's evidence, which included two affidavits, established that a reasonably prudent officer in the same or similar circumstances as those perceived by Officer Corral could have believed that the need to pursue the suspect outweighed the risk to the public. Each officer's testimony sufficiently addressed both the need and risk factors and reveals that a reasonable officer, under the same or similar circumstances, could have balanced need and risk as Officer Corral did. Based on the evidence presented, the City met its initial summary-judgment burden by establishing all three official immunity elements, including the element of good faith.
See Clark , 38 S.W.3d at 586.
See Tex. Dep't of Pub. Safety v. Bonilla , 481 S.W.3d 640, 644-46 (Tex. 2015) (per curiam) ; City of San Antonio v. Ytuarte , 229 S.W.3d 318, 320-21 (Tex. 2007) ; Clark , 38 S.W.3d at 586 ; Tex. Dep't of Pub. Safety v. Salinas , No. 04-21-00178-CV, 2022 WL 947195, at *4-5 (Tex. App.—San Antonio Mar. 30, 2022, no pet.) (mem. op.) ; Harris County v. Avila , No. 14-18-00182-CV, 2019 WL 1030332, at *5-6 (Tex. App.—Houston [14th Dist.] Mar. 5, 2019, no pet.) (mem. op.) ; Jackson v. City of Baytown , No. 14-14-00231-CV, 2015 WL 2169509, at *5 (Tex. App.—Houston [14th Dist.] May 7, 2015, no pet.) (mem. op.) ; Royal v. Harris County , No. 14-08-00551-CV, 2010 WL 610604, at *7 (Tex. App.—Houston [14th Dist.] Feb. 23, 2010, pet. denied) (mem. op.) ; Johnson , 142 S.W.3d at 596.
The burden therefore shifted to appellees to raise a genuine issue of material fact on at least one element of the City's official immunity defense. To rebut evidence of good faith in response to the City's motion, a plaintiff must establish that no reasonable person in the defendant's position could have thought the facts were such that they justified the defendant's acts. The plaintiff cannot controvert the defendant's good-faith evidence by showing that the defendant was negligent or that reasonably competent officers could disagree on the issue. Appellees did not address the City's official immunity argument in their summary-judgment response. They argued solely that Officer Corral acted with conscious indifference or reckless disregard for their safety. Appellees conceded that their opposition to summary judgment was based solely on the emergency exception and that they did not contest that Officer Corral has official immunity.
See Lujan v. Navistar, Inc. , 555 S.W.3d 79, 84 (Tex. 2018).
Clark , 38 S.W.3d at 581.
Telthorster , 92 S.W.3d at 467.
Because appellees’ response addressed only the Tort Claims Act's emergency exception and did not respond to the City's official immunity argument, the City was entitled to summary judgment. When official immunity is proven as a matter of law, the alternative defense of the emergency exception to the waiver of immunity need not be addressed.
See Salinas , 2022 WL 947195, at *4-5 (DPS proved immunity; plaintiff's response addressed only recklessness and whether response was an emergency; plaintiff offered no evidence that no reasonable official in officer's position could have believed that his conduct was justified; thus summary judgment was appropriate); see also Ytuarte , 229 S.W.3d at 320-21 ; Clark , 38 S.W.3d at 586 ; Avila , 2019 WL 1030332, at *6-7 ; Jackson , 2015 WL 2169509, at *6-7 ; Royal , 2010 WL 610604, at *7-10 ; Johnson , 142 S.W.3d at 596.
See Salinas , 2022 WL 947195, at *5 (holding that because defendant was entitled to official immunity, court need not consider alternative issue regarding the emergency exception); Quested , 440 S.W.3d at 284 n.16 ; White , 624 S.W.3d at 37.
I would reverse the trial court's order denying the City's motion for summary judgment and render judgment that appellees’ claims against the City should be dismissed for lack of jurisdiction. Because the court fails to do so, I dissent.