Opinion issued April 2, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00471-CV
CITY OF RICHMOND, Appellant
V.
DELIA GARCIA RODRIGUEZ, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 06-CV-152099
MEMORANDUM OPINION
This suit arises from injuries sustained by appellee, Delia Garcia Rodriguez, as a result of a collision with a police car. Appellant, the City of Richmond, appeals the trial court’s denial of its plea to the jurisdiction in favor of Rodriguez. In two issues on appeal, the City argues that the trial court erred in denying its plea to the jurisdiction because the City’s immunity was established as a matter of law, and even if the City’s immunity was waived, Rodriguez has not shown recklessness on the part of the officer, as required to establish jurisdiction over Rodriguez’s negligence claims against the City.
We reverse and render.
Background
On the night of September 20, 2004, Sergeant W. Elliot of the City of Richmond Police Department was looking for traffic violators while sitting in his marked patrol car in a parking lot on Austin Street in Richmond, Texas. Sergeant Elliot observed a motorcycle with a non-functional front headlight traveling east on Austin Street and exceeding the posted 30 miles-per-hour speed limit. Sergeant Elliot drove his patrol car out of the parking lot, activated his emergency lights, and accelerated toward the motorcycle to initiate a traffic stop. While he followed the motorcycle on Austin street, Sergeant Elliot approached South 4th Street and observed a vehicle, driven by Rodriguez, approaching the South 4th Street’s stop sign. Sergeant Elliot realized that any traffic at this intersection would have a stop sign and that he did not. As he proceeded through the intersection, Sergeant Elliott noticed that Rodriguez’s vehicle did not stop at the stop sign and that she was entering the intersection. Sergeant Elliot attempted to swerve to the left to avoid hitting Rodriguez’s vehicle, but his patrol car collided with the vehicle.
Rodiguez filed suit against the City and Sergeant Elliott for property damage and injuries as a result of the accident. The City filed a plea to the jurisdiction that included the affidavits of Sergeant Elliott and Lieutenant B. Teague. In its plea, the City asserted that it was entitled to governmental immunity because Sergeant Elliott had official immunity and had acted in the scope of his authority and in good faith. The City also argued that, even if the City’s immunity had been waived, Rodgriguez presented no evidence that Sergeant Elliott acted recklessly. In her response, Rodriguez asserted that Sergeant Elliott’s affidavit did not show that he assessed whether he had any available alternatives and therefore he did not show that he acted in good faith, as required for immunity. Rodriguez also argued that a fact issue was created by her deposition testimony attached to her response controverting Sergeant Elliott’s testimony that the motorcycle did not have a functioning headlight and that Sergeant Elliott’s emergency lights were on at the time of the accident. The trial court denied the plea and this appeal ensued.
Sovereign Immunity
As a general rule, a city is immune from suits for money damages. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). However, a waiver of immunity is provided for in section 101.021(1) of the Texas Tort Claims Act, which provides as follows:
A governmental unit in the state is liable for:
(1) 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:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law. . . .
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1) (Vernon 2005) (emphasis added). But “sovereign immunity shields the governmental employer from vicarious liability” if “official immunity shields a governmental employee from liability.” Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). “A governmental employee is entitled to official immunity: (1) for the performance of discretionary duties; (2) within the scope of the employee’s authority; (3) provided the employee acts in good faith.” Id.
“[T]o establish good faith in a police pursuit case, an officer must conclusively prove that a reasonably prudent officer in the same or similar circumstances could agree that the need to immediately apprehend the suspect outweighed the risk of harm to the public in continuing the pursuit, taking into account all the Wadewitz [need and risk] factors.” Clark, 38 S.W.3d at 583. These factors were summarized in Clark as follows:
The need element refers to the ‘urgency of the circumstances requiring police intervention,’ or ‘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 element of good faith refers to ‘the countervailing public safety concerns,’ or ‘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.’
Id. at 581 (quoting Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997)). “Depending on the circumstances, an officer may not be able to thoroughly analyze each need or risk factor, and that this alone should not prevent the officer from establishing good faith.” Id. at 583. “[T]o controvert a police officer’s summary judgment proof on good faith, the [respondent] must do more than show that a reasonably prudent officer could have decided to stop the pursuit.” Id. “The [respondent] must show that no reasonable person in the officer’s position could have thought that the facts justified the officer’s acts.” Id.
On appeal, we review the trial court’s rulings on a plea to the jurisdiction de novo. Tittizer v. Union Gas Corp., 171 S.W.3d 857, 860 (Tex. 2005); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). In determining whether jurisdiction exists, “[w]e construe the pleadings liberally in favor of the plaintiffs and look to the pleaders’ intent.” Miranda, 133 S.W.3d at 226. “However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. . . .” Id. at 227. “If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder.” Id. at 227–28. “However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.” Id. at 228. “[T]his standard generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).” Id. Accordingly, “[w]hen reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the [respondent].” Id. “We indulge every reasonable inference and resolve any doubts in the [respondent’s] favor.” Id.
The parties do not dispute that Sergeant Elliott was performing a discretionary duty and acting within the scope of his authority. Thus, we focus on whether Sergeant Elliott showed he acted in good faith as a matter of law and if so, whether Rodriguez created a jurisdictional fact issue.
Sergeant Elliott submitted an affidavit in which he testified that
6. While parked at the George Family Development Center, I observed a motorcycle traveling at a high rate of speed, who was moving east on Austin Street, which was from the right hand direction moving in front of me to the left. I noticed that the motorcycle’s front light was not working. Although I do not recall how fast the motorcycle was traveling, I recall that based on the reading from my radar, the motorcyclist was exceeding the speed limit, which is 30 miles per hour on Austin Street.
7. I decided to make a traffic stop and followed my usual course of action which was activating my front headlights and putting my vehicle in gear. After checking the road for additional motorists traveling in either lane, I determined the roadway was clear. Thereafter, I made a left hand turn out of the George Family Development Center and entered the inside lane on Austin Street.
8. Once I entered Austin St., I activated my emergency lights and accelerated towards the speeding motorist to make the traffic stop.
9. Given the conditions of the road at the time and the presence and number of other vehicles traveling on the roadway, I determined it was necessary and appropriate to increase my speed and activate my emergency lights as I closed the distance between myself and the speeding motorcyclist. At the time, given the circumstances, I used my discretion in determining whether it was appropriate to activate my audible sirens and decided it was not appropriate at the time for a number of reasons.
. . .
11. At that time, I recognized before I initiated my response, that there was some risk, as there always is, inherent anytime a police officer makes the decision to increase his speed and not activate the audible signals while making a traffic stop. Indeed, this case was no exception. I recognized the possibility existed that if I increased my speed, my vehicle could increase the risk of a collision causing property damage and/or injury to another driver, bystander or property owner. I considered each of these potential risks before I initiated the pursuit and continually reevaluated them up until the time of the accident.
12. In my opinion, considering the fact that the motorcyclist was speeding on a two lane road at night, without the use of a functioning front light, coupled with my knowledge of Austin St., and the traffic and pedestrian conditions, the potential danger posed by my actions were far less than the danger posed by the speeding motorist given the danger he posed to himself, other motorists and the property around him. Additionally, after evaluating the potential risks inherent in my decision not to activate the audible signals on my police vehicle, I determined that the safest manner to stop the speeding motorcyclist was to activate my visual emergency lights to alert him of my presence before activating my audible sirens. Indeed, based on my training and experience, it is often better under certain circumstances, and this would be one of those circumstances, to first activate visual emergency lights before activating audible sirens.
. . .
14. Additionally, Austin St. is a relatively straight road. Moreover, before initiating the pursuit, I ensured there were no cars around me. At the time, I did not perceive any risk associated with increasing my speed or not activating my audible signals posed to the traffic on Austin St. or any other civilians, property owners or drivers close to my location.
. . .
16. From my point of view at the time, I did not engage in conduct I believe posed a likelihood of serious injury to anyone or that posed serious property damage to any property owners or civilians. Therefore, a reasonably prudent police officer, under similar circumstances as those I faced, would likely have reached the same decision that I reached based upon my perception of the facts at the time. Accordingly, based upon my perception of the facts at the time, I believe a reasonably prudent police officer would have reached the same conclusion I did, when assessing the need for a rapid response and the risk of the course of action I undertook. That is, the need to stop a speeding motorcyclist whose front light was not functioning and driving at an increased rate of speed without activating my audible signals outweighed any risk of potential or perceived harm to the public.
On appeal, Rodriguez argues that because Sergeant Elliott’s affidavit does not state whether he had any other alternatives to pursuit, he did not “substantiate his claim of good faith.” Alternatively, Rodriguez argues that her deposition testimony controverts Sergeant Elliott’s assertions that “(1) the motorcycle in question did not have a functioning headlight, and (2) that [Sergeant Elliott’s emergency lights were on at the time of the accident.”
In University of Houston v. Clark, the supreme court held that the requirement that the officer consider available alternatives was met in Officer Stewart’s case by his testimony that he was unable to get close enough to read the fleeing suspect’s license plate. 38 S.W.3d at 585. The Clark court stated, “The need to immediately apprehend a suspect depends, among other things, on whether the suspect could be apprehended at a later time, i.e., whether there is an alternative to pursuing the suspect that would achieve a comparable result.” The court further stated, “officers should be required to recognize reasonable alternatives to pursuit, and to justify their decisions to pursue when those alternatives exist by showing that the need to pursue nevertheless outweighed the risks. Requiring officers to assess alternatives insures that public safety is not ‘thrown to the winds in the heat of the chase.’” Id. (quoting Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992)).
By contrast, in Ener v. Thomas, the supreme court stated, “Nowhere in his affidavit does Ener mention facts to show that he assessed whether there were any alternatives to pursuit. Ener does not mention the viability of identifying the suspect and apprehending him later or any other alternative.” Id. at 587. The court concluded that “Without assessing the availability of alternatives, Ener did not have a suitable basis for concluding that a reasonable officer in his position ‘could have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm to the public in continuing the pursuit.’” Id. (quoting Chambers v. City of Lancaster, 883 S.W.2d 650, 656 (Tex. 1994)). Therefore, the supreme court agreed with the court of appeals that the officer’s affidavit did not substantiate his claim of good faith. Id. at 588.
Unlike Ener, Sergeant Elliott’s affidavit properly assessed the need and risk factors articulated in Wadewitz and refined in Clark. Specifically, Sergeant Elliot testified that he saw a motorcyclist driving at a high rate of speed at night without a headlight, posing a danger to himself, other motorists, and the property around him, requiring a “rapid response.” He testified that he determined it was necessary and appropriate to accelerate toward the motorcyclist based on the conditions of the road and the presence and number of other vehicles traveling on the roadway. He further testified that he recognized the possibility that if he increased his speed, the risk that his vehicle could cause an accident also increased, property damage, or injury to another driver, bystander or property owner also increased, and that he considered each of these potential risks and continued to re-evaluate each risk up until the accident. He considered the alternative of not pursuing the speeding motorist and also of activating his audible siren as well as his visual emergency lights to alert the speeding motorcyclist of his presence. He determined, on the basis of his knowledge of the street, the traffic and pedestrian conditions, and the time of day, and after evaluating the risks, the potential danger of pursuing the motorist was far less than the danger posed by the speeding motorist and himself and that “the safest manner to stop the speeding motorcyclist was to activate my visual emergency lights.” He concluded that he did not believe that he engaged in conduct that posed a likelihood of serious injury to anyone and that a reasonably prudent police officer, under similar circumstances, would have reached the same decision that he did. Furthermore, Lieutenant Teague’s affidavit supported Sergeant Elliott’s affidavit and did not controvert anything about Sergeant Elliott’s conduct.
We conclude that Sergeant Elliott’s affidavit took all of the Wadewitz factors into account and thus affirmatively established his good faith as a matter of law. See Id. at 584–87. The burden thus shifted to Rodriguez to show that “no reasonable person in the officer’s position could have thought that the facts justified the officer’s acts.” Id. at 581. On appeal, Rodriguez does not make any argument that an officer in Sergeant Elliott’s position would not have thought that the facts justified the officer’s acts. Rather, Rodriguez primarily attacks Sergeant Elliott’s affidavit as not establishing good faith. Because we have concluded that Sergeant Elliott’s affidavit proves good faith as a matter of law, we likewise conclude that Rodriguez has not met her burden.
At the end of her brief, Rodriguez argues that Rodriguez’s “deposition testimony controverts Officer Elliot’s affidavit testimony, and therefore raises fact issues for a jury. More specifically, Plaintiff controverts Officer Elliott’s assertions that (1) the motorcycle in question did not have a functioning headlight and (2) that Officer Elliott’s emergency lights were on at the time of the accident.” As Rodriguez’s argument does not address the need and risk factors in Wadewitz, it is insufficient to controvert Sergeant Elliott’s proof on good faith. See Clark, 38 S.W.3d at 587 (stating that because plaintiff’s expert’s “testimony on good faith is not substantiated with reference to each aspect of the need and risk balancing test, it is conclusory and is insufficient to controvert the defendant’s proof on good faith”).
Conclusion
We reverse the trial court’s order denying the City of Richmond’s plea to the jurisdiction. We render judgment that the City of Richmond’s plea to the jurisdiction is granted and that Rodriguez’s claims are dismissed.
Evelyn V. Keyes
Justice
Panel consists of Justices Jennings, Keyes, and Higley.