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Reversed and Rendered and Majority and Dissenting Opinions filed March 27, 2007.

 

In The

 

Fourteenth Court of Appeals

____________

 

NO. 14-05-00407-CV

____________

 

CHRISTOPHER GREEN, Appellant

 

V.

 

DWAINIA ALFORD, Individually, and as Next Friend of AARON ALFORD, and RONALD ALFORD, Appellees

 

 

 

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 2002-53991

 

 

 

M A J O R I T Y    O P I N I O N

            Christopher Green, the appellant, was involved in a traffic accident while driving a fire truck belonging to the Pasadena Volunteer Fire Department.  Dwainia and Ronald Alford, and their son Aaron Alford (the Alfords) were injured in the accident.  Dwainia Alford sued Green, both individually and as next friend of her minor son, Aaron, for damages stemming from the accident.  Ronald Alford, as intervenor, also sought to recover his damages.  Following a bench trial, judgment was assessed against Green in excess of $1,600,000.  The trial judge made specific findings of fact and conclusions of law in which

 

he held Green had engaged in reckless conduct and was not entitled to official immunity because he had not acted in “good faith.”  In three issues, Green contends the trial court erred in (1) refusing to render judgment in his favor due to his defense of official immunity, (2) rendering judgment when the evidence was legally and factually insufficient to support its findings of fact and conclusions of law, and (3) rendering judgment for damages exceeding the limit of liability set forth in Section 108.002 of the Civil Practice and Remedies Code.1  We reverse and render judgment that the Alfords take nothing on their claims against Green.

            On August 30, 2002, Christopher Green, a volunteer fireman for the Pasadena Volunteer Fire Department, received notice of an automatic fire alarm activation at 5:15 p.m. on his pager.  He arrived at the fire station in less than five minutes.  Shortly thereafter, Green drove a large fire truck out of the station accompanied by several other firemen.  As he proceeded north on Jana, Green approached the intersection of Jana and Fairmont Parkway.  At this point the testimony of the witnesses is conflicting.

            Ronald Alford testified that he and his wife, Dwaina  Alford, and their son, nine-year-old Aaron Alford, were driving westbound on Fairmont Parkway.  Alford said as he approached the intersection with Jana the traffic light was red.  As he began to slow his pickup truck in anticipation of stopping, the light turned green.  Alford looked to his right and left, took his foot off the brake, and entered the intersection at approximately 30 miles per hour.  Alford claimed he never saw or heard Green’s fire truck until the impact.  Alford said, “I just caught a flash of it out of my eye – the corner of my eye before it hit the – hit me.”  He testified the incident occurred in “an instant”—“just a flash.”


            Alford’s pickup rolled over on its side and came to rest against a utility pole.  Alford turned to look back at Aaron and observed his son hanging unconscious in his seat belt and bleeding from the mouth.  While all three members of the family were injured, Ryan sustained the most serious injury with significant head and neurological trauma.  Alford and his family were eventually transported from the scene in two Life Flight helicopters.

            Dwaina Alford, like her husband, testified that she never heard a siren or horn before the impact.  In fact, she never saw the fire truck.  She testified, “I saw lights and sheets of metal and heard a big crash – bang – like I was in a tunnel.”

            In stark contrast, Green testified he activated his emergency lights and siren even before he exited the fire station.  As he turned north on Jana, Green said he began to periodically sound his horn as well.  Green slowed the fire truck as he neared the eastbound lanes of Fairmont Parkway.  When the traffic had yielded to his presence, Green proceeded across the eastbound lanes of Fairmont Parkway, crossed a large median (50 to 60 yards wide), and neared the intersection of the westbound lanes of Fairmont Parkway.

            The traffic light was red, and Green said he slowed and looked to his right.  He saw the first two lanes contained lines of stationary vehicles—the far lane was clear.  Green testified that he began crossing the intersection at no more than 10 miles per hour.  Green stated that he was moving slowly enough to stop for a vehicle if he had seen a vehicle entering the intersection.  However, he said his first sighting of the Alford’s pickup was simultaneous with the collision.  According to Green, the Alford’s pickup truck struck the right front corner of the fire truck, rolled over, and careened into a utility pole supporting the traffic signal lights.  Green said after the impact, his fire truck was sitting stationary in the intersection.  Green remained in the intersection for a few seconds staring at the Alford’s wrecked vehicle.  Green then proceeded to drive across the intersection and park his fire truck on Jana.  Green and the other fire fighters on his truck then went to the Alford’s vehicle and began administering medical care to the occupants.

            Riding “shotgun” in the cab with Green that day was another volunteer fireman, Richard Lawhorn.  Lawhorn said Green activated the fire truck’s emergency lights and siren on the fire station apron before ever entering traffic.  Lawhorn said they proceeded north on Jana toward the intersection with the eastbound lanes of Fairmont Parkway.  After successfully navigating the first intersection, Lawhorn said Green began slowing as he approached the intersection with the westbound lanes of Fairmont Parkway.

            Lawhorn said one of his duties in the cab is to act as a “second set of eyes.”  Lawhorn looked to his right and saw two long lines of traffic at a complete stop on Fairmont Parkway.  He testified he saw no movement in any of the lanes on Fairmont Parkway.  Green began to proceed through the intersection at a speed that Lawhorn estimated to be no more than 20 to 25 miles per hour.  Lawhorn said that just before impact he saw a “blue streak” out of the corner of his right eye, turned and saw the surprised look on Ronald Alford’s face, saw the nose of the pickup go down just before impact, and then observed the bed of the pickup “somersault” past the windshield of the fire truck.  Lawhorn estimated the speed of the fire truck at the moment of impact was no more than 10 miles per hour because immediately after impact the fire truck was at a dead stop in the roadway with the front of the fire truck still in the far right lane of Fairmont Parkway where the impact occurred.  Because they were blocking the intersection and needed to attend to the Alfords, Lawhorn told Green to pull the fire truck out of the intersection.  Lawhorn said Green then proceeded to park the truck just north of the intersection.  Lawhorn testified that he did not observe Green driving in an unsafe manner, and he would have done nothing differently if he had been in the driver’s seat.

            Douglas Lowther also witnessed the accident.  He testified he was in the first vehicle in a line of vehicles stopped at a red traffic light in the middle lane of the westbound lanes of Fairmont Parkway at the intersection with Jana.  Lowther said additional vehicles were stopped in the left lane, but no vehicles were in the far right lane.  Lowther heard and saw Green’s fire truck approaching from his left, driving north on Jana.  The emergency lights were on, and Lowther said he clearly heard the fire truck’s siren and horn.  Lowther’s light turned green “very shortly” before the collision.  In fact, Lowther said his light did not turn green until the fire truck had already begun entering the intersection.  Thus, he opined the fire truck entered the intersection on a yellow light.  In any event, Lowther said he and the drivers of the other vehicles on Fairmont Parkway remained stationary to permit the fire truck to pass through the intersection.  As the fire truck proceeded through the intersection, Lowther estimated its speed at approximately 25 to 35 miles per hour.  The Alford’s pickup suddenly entered the intersection in the far right lane of Fairmont Parkway and was struck by the fire truck.  The Alford’s pickup truck became airborne and smashed into a utility pole.  Lowther said the fire truck was not accelerating at the time of the collision, but the weight and speed of the fire truck carried it through the intersection after the impact, and it stopped just north of the intersection.

            Christopher Hann, a college student, also witnessed the accident.  Hann said he was the second car in the middle lane of the westbound lanes of Fairmont Parkway.  Like Lowther, Hann testified that while his light was red, he heard the siren of an approaching fire truck.  Hann said he looked to his left and saw the truck, with its emergency lights on, approaching the intersection from the south.  The fire truck slowed as it approached the intersection.  Hann claims his light turned green “a couple of seconds” before the fire truck entered the intersection, and that neither he nor any of the other drivers that saw the fire truck approaching the intersection moved.  The fire truck entered the intersection at approximately 25 to 30 miles per hour.  Hann estimated the fire truck could not have stopped in time to avoid the accident, but he was of the opinion the collision was not Green’s fault. 

            Josef Levi Wells and his wife, Jamie Faulkner, were also driving westbound in the middle lane of the westbound lanes of Fairmont Parkway.  Although Faulkner testified that the light had been green for a good while, she said her husband slowed to a stop to yield to Green’s approaching fire truck.  Faulkner testified that the fire truck “was coming very fast,” with no red flashing lights, and no siren or horn.  Moreover, she said the fire truck did not slow or stop before entering the intersection.  Faulkner said she saw the Alfords pickup pass by her in the far right lane, realized the Alfords could not see the fire truck, and knew there would be a collision.

            Even though they were traveling in the same vehicle, Wells testimony differed significantly from his wife’s statement.  Wells said he and his wife were not approaching the intersection, but were stopped in traffic at a red light.  He said he was the third car in the middle lane and, due to a large truck in the left lane, Wells could not see the approach of Green’s fire truck.  When the light turned green, no one moved for 5 to 10 seconds, because unlike Wells, the cars ahead of him could see the approaching fire truck.  As Wells was considering honking his horn, he suddenly saw the fire truck enter the intersection traveling at a speed he estimated to be 20 to 30 miles per hour “or faster.”  Unlike his wife, he saw the fire truck’s emergency lights.  However, like his wife, he heard no sirens or horn.  After the collision, Wells said the fire truck did not stop, but proceeded through the intersection and stopped just north of the intersection on Jana.

            James Vaught was driving south on Jana.  As he neared the intersection of Jana and the westbound lanes of Fairmont Parkway, he saw Green’s fire truck coming north on Jana.  He heard the fire truck’s horn at a distance of 250 to 300 yards which he said sounded “like a freight train.”  The emergency lights on the fire truck were flashing, and as the fire truck approached the intersection, Vaught could also hear its siren.  Anticipating that the fire truck might turn left on the westbound lanes of Fairmont Parkway, Vaught slowed to a stop so as not to interfere with the emergency vehicle.  Vaught observed Green slow the fire truck before crossing the eastbound lanes of Fairmont Parkway.  When it appeared safe to cross the intersection, Vaught heard the truck’s engine roar as the truck accelerated north across the median toward the westbound lanes of Fairmont Parkway.  As the fire truck neared the intersection it slowed again.

              Vaught noted that all the vehicles on Fairmont Parkway were stopped, and everyone appeared to be yielding to the emergency vehicle.  The fire truck once again began to accelerate to approximately 30 miles per hour or less in an attempt to cross the intersection. Vaught  described what happened next:

            And then out of the corner of my eye there was a blur that just that struck the front end of the – the fire truck was hit.  And then this, if I remember right, I think it was a Dodge.  It was a truck – I mean, immediately got my attention.  It was coming right at me.  It would have hit me had it not been for the light pole between where – well, the impact had occurred and – and the direction that it went after it hit.

            Like the other witnesses, Vaught said the Alford’s pickup truck entered the intersection from the far right lane of the westbound lanes of Fairmont Parkway.  However, Vaught described the Alford’s appearance as coming “out of nowhere,” and occurring in “a very split second” or “in the blink of an eye.”  After “bouncing off” the front right corner of the fire truck, Vaught said the Alford’s pickup truck careened into, and was partially wrapped around, a utility pole.  Immediately after the impact, Vaught said the fire truck was stationary in the middle of the intersection partially blocking the right lane and completely blocking the middle and left lanes of the westbound lanes of Fairmont Parkway.  Vaught said the fire truck then proceeded to clear the intersection and parked on Jana just north of the intersection.

            Vaught and others stopped to try to render aid.  It was at that time he noticed a child in the back seat of the Alford’s truck had been very badly injured.

            Approximately 50 to 60 yards from point of impact, Diana Canales was stopped at a red light in the eastbound lanes of Fairmont Parkway at the intersection of Fairmont Parkway and Jana.  Canales said she heard a fire truck horn, turned to her right, and saw the fire truck approaching the intersection with its emergency lights on.  Canales could not recall whether the truck’s siren was on or not.

            The fire truck passed through the intersection in front of Canales and proceeded north on Jana toward the intersection of the westbound lanes of Fairmont Parkway.  Shortly after the fire truck passed by her, Canales’ heard the sound of a collision and she looked to her left.  Sixty to seventy yards away, Canales saw the Alford’s pickup careening into a utility pole at the intersection of Jana and the westbound lanes of Fairmont Parkway.  Canales said the fire truck did not appear to be moving.

            A few cars away from Canales, Norman Glynn Daily, was also stopped in the eastbound lanes of Fairmont Parkway.  As he waited for the traffic light to turn green, he saw the fire truck coming north on Jana.  Although the truck’s emergency lights were on, Daily testified that no horn or siren were being sounded as it proceeded through the intersection in front of him.  Moments after the fire truck crossed through the intersection, Daily’s light turned green.  Daily watched as the fire truck continued toward a red traffic light at the intersection of Jana and the westbound lanes of Fairmont Parkway.  Daily estimated the speed of the fire truck at 30 miles per hour.  He said he never saw any brake lights on the fire truck before it struck the Alford’s pickup.  Daily testified that the kinetic energy of the fire truck carried it through the intersection after the crash and it stopped well clear of the intersection.

            Patricia Deets was working as a nurse in her office on the corner of Jana and the eastbound lanes of Fairmont Parkway.  Deets testified that she heard the fire truck’s horn and sirens and looked out her window.  She watched as the fire truck proceeded through the intersection of Jana and the eastbound lanes of Fairmont Parkway.  Once the fire truck had cleared the intersection and was traveling toward the intersection of Jana and the westbound lanes of Fairmont Parkway, Deets resumed her paper work.  Deets then heard a collision, looked up, and noticed that there had been a serious accident at the intersection of Jana and the westbound lanes of Fairmont Parkway.  Deets said she did not believe Green was at fault, and she did not see the fire truck do anything out of the ordinary.

            Victor Lucio was driving eastbound on Fairmont Parkway and turned left at the intersection of Fairmont Parkway and Jana.  As Lucio drove north on Jana, he looked in his rear view mirror and saw Green’s fire truck coming up on him fast.  Lucio said he was afraid he was going to be hit, and he immediately pulled into the left lane to avoid a collision.  Lucio said the fire truck had its emergency lights on, but he heard no siren or horn.  As the fire truck passed him, Lucio estimated its speed at 40 to 50 miles per hour.  He testified that he was only three car lengths behind the fire truck when it collided with the Alford’s pickup.  Lucio testified that at no time did the fire truck slow down or brake before entering the intersection with the westbound lanes of Fairmont Parkway.  He said the momentum of the fire truck carried it completely through the intersection.

            The trial judge, as the trier of fact, was tasked with resolving these conflicting accounts of the accident.  The difficulty, of course, is that Green’s testimony was both corroborated and refuted by numerous witnesses.  After weighing all the evidence, the trial court found that (1) Green entered the intersection of Jana and the westbound lanes of Fairmont Parkway on a red traffic light; (2) due to traffic in the southernmost and middle lanes of Fairmont Parkway, Green did not see the northernmost lane of Fairmont Parkway; (3) at the time of impact, the fire truck was traveling at 23 miles per hour; (4) the fire truck entered the intersection at a speed too fast to stop for westbound traffic that might be entering the intersection; and (5) at the time of the collision, Green was not using the fire truck’s siren or other audible warning signal.

Defense of Official Immunity

            At the close of evidence, Green moved for judgment as a matter of law on the theory that he was protected by the doctrine of official immunity.  The trial court considered, but rejected the defense.  In his first issue, Green contends the trial court erred in refusing to render judgment in his favor based on the doctrine of official immunity.

            Official immunity protects public officials from suit arising from performance of their (1) discretionary duties (2) in good faith (3) within the scope of their authority.  Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 422 (Tex. 2004).  The purpose of official immunity is to insulate essential government functions from the harassment of litigation.  Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994).  The rationale for the doctrine rests on the theory that the threat of liability will make public officials unduly timid in carrying out their official duties, and that effective government will be promoted if officials are freed of the costs of vexatious and often frivolous litigation.  Westfall v. Erwin,  484 U.S. 292, 295 (1988).

            Although Green was not a paid city employee at the time of the accident, no one disputes that he was a “public official” and potentially protected by the defense of official immunity.2  Likewise, no one disputes that Green was exercising discretionary duties and was within the scope of his authority when he proceeded through the intersection.  Rather, the Alfords contend, and the trial court found, that Green did not exercise his duties in “good faith” and, thus, was not entitled to immunity. 

            To determine whether a public official has acted in good faith, we look to the objective standard adopted in City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994).  Under that standard  we must examine the record to see whether a reasonably prudent official, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when the conduct occurred.  Ballantyne, 144 S.W.3d at 426.  In other words, after considering a “risk versus need” analysis, could a reasonably prudent official have believed his conduct was justified.

            In the context of an emergency response, the “need” aspect of the test refers to the urgency of the circumstances requiring official intervention.  Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997).  In other words, need is determined by factors such as the seriousness of the alarm to which the official is responding, whether his presence is necessary to prevent injury or loss of life, and what alternative courses of action, if any, were available to achieve a comparable result.  Id.  The “risk” aspect of good faith, on the other hand, refers to the countervailing public safety concerns, i.e., the nature and severity of harm that the official’s actions could cause, the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent official.  Id.

            Here, the parties agree that Green satisfied two of the three elements of his affirmative defense of official immunity, namely, at the time of the accident he (1) was engaged in a discretionary duty that (2) was within the scope of his authority as a firefighter.  To establish his good faith, Green testified that he weighed the need to respond quickly to the alarm against the risk of injury from entering the intersection on a red light.  To minimize the risk, Green said (1) he activated his emergency lights and siren before leaving the station; (2) he slowed down as he approached the intersection; (3) before entering the intersection, he activated his air horn and looked in the direction of approaching traffic; (4) he saw that no vehicles were moving; (5) he believed his view of the far right lane of Fairmont Parkway was not obstructed and if it had been obstructed he would have stopped; and (6) he drove slowly enough that he could have stopped in time to avoid an accident if he had seen the Alfords’ vehicle.  Green contends he was entitled to official immunity as a matter of law because the Alfords presented no evidence (or in the alternative, factually insufficient evidence) to raise a fact issue regarding whether he acted in “good faith.”

            In support of his contention, Green relies on a case with many factual similarities to the case presented here.  In City of San Angelo Fire Department v. Hudson, 179 S.W.3d 695 (Tex. App.—Austin 2005, no pet.), the Austin Court of Appeals was confronted with a case arising from a collision between a fire truck driven by Kelly Hood and an automobile driven by Sheila Hudson.  As in the case presented here, Hood was driving the truck to an apparent fire.  Id. at 700.  Hood entered an intersection against a red light.  Id. at 698.  Hood claimed he slowed considerably before entering the intersection and did so only after he was satisfied that all traffic had stopped and was yielding to his passage.  Id. at 700.  There was conflicting evidence presented however regarding whether Hood slowed the fire truck before proceeding through the intersection, and Hudson claimed she did not see or hear the truck before it struck her car.  The court found, however, that Hood established, as a matter of law, that he was acting in good faith and, thus, entitled to official immunity.

            Under the facts presented here, we agree that Green presented sufficient evidence to establish the affirmative defense of official immunity.  However, the fact that Green made a prima facie showing satisfying the elements of good faith, does not end our enquiry.  The Alfords contend they offered evidence rebutting Green’s assertions and, thus, created a fact issue as to whether he acted in good faith.  Having created a fact issue, the Alfords claim that issue was resolved against Green by the trier of fact.  Indeed, the trial judge, acting as the trier of fact in the court below, apparently disbelieved much of Green’s testimony because the trial court found that Green (1) did not assess the risk of entering the intersection as he did against the need to respond quickly to the fire alarm, (2) did not activate his siren, (3) did not use his air horn, (4) could not and did not see the far right lane of Fairmont Parkway, (5) and was driving too fast to stop when he entered the intersection.

            In addition, the trial court also concluded that Green did not act in good faith because evidence was admitted showing that (1) Green was suffering from a progressive eye disease that principally blurred the vision in his right eye; (2) in 1997 or 1998, Green failed a vision test administered by the Texas Department of Public Safety; (3) Green was required to wear corrective lenses while driving; and (4) Green was not wearing corrective lenses at the time of the collision.  The court further found that Green (as he himself admitted) was aware that the fire alarm was an automatic alarm and that most automatic alarms are later discovered to be false alarms.3

            While these factual findings may be damning to Green, they do not resolve the critical issue before us.  After a defendant has offered evidence showing he acted in good faith, he is entitled to official immunity as a matter of law unless the plaintiff offers some evidence “that no reasonable person” in the defendant’s “position could have thought that the facts justified” the defendant’s conduct.  See University of Houston v. Clark, 38 S.W.3d 578, 581 (Tex. 2000).  To make this critical showing, the Alfords relied principally upon the testimony of their expert witness, Robert Stage.  Stage testified that (1) Green caused the collision; (2) his actions were reckless; (3) he secured the first two lanes of westbound traffic but erred in failing to secure the third lane of traffic; (4) he should have come to a complete stop until he could secure the third lane of traffic; and (5) he should have known that his conduct posed a high degree of risk.  Stage also testified that, in his opinion, the risk versus need balancing test was not met when Green entered the third lane of traffic without first “securing” it.

            Stage’s opinion that Green caused the accident is largely undisputed.  Moreover, who “caused” the accident is not the relevant issue.  The fact that a governmental employee was negligent will not defeat good faith.  Telthorster v. Tennell, 92 S.W.3d 457, 465 (Tex. 2002).  The fact that Green’s conduct may have been “reckless” is also unavailing.  Conduct that is clearly reckless may be reasonable in a time of crisis.  For example, in White v. Tackett, 173 S.W.3d 149, 151 (Tex. App.—Fort Worth 2005) the plaintiff alleged that a Texas Department of Public Safety trooper was “reckless” in initiating and continuing a high speed pursuit that ultimately led to her injuries.  The court agreed that the trooper’s conduct presented “a clear risk of harm to the public in continuing, rather than terminating, the pursuit,” but held the risk was outweighed by the need to apprehend the suspect.  Id. at 155.  The defense of official immunity exists precisely because government employees are sometimes called upon to take measured risks in the performance of their duties that may sometimes result in injury or damage to others.

            We also observe that Stage based his opinion regarding Green’s recklessness on the fact that he had an accident.  In other words, Stage testified that because Green collided with a vehicle, his conduct necessarily involved a high degree of risk.  Stage testified, “If [Green] looked and thought it was clear and there was a vehicle there, then he didn’t take the time to look and see clearly.”  However, we do not agree with Stage’s assumption that Green’s inaccurate perception necessarily rendered it unreasonable for him to have believed that all traffic was stopped based upon his knowledge at the time.  “If this were so, any admission that a risk existed would defeat the element of good faith, and any collision would be adequate evidence that a reasonable employee would have assessed the risk differently, thereby vitiating the doctrine of official immunity in most or all cases.  Official immunity is designed to encourage emergency personnel to take reasonably calculated risks when they have properly considered need and risk, not to punish them for having done so.”  Hudson, 179 S.W.3d at 706.

            Most importantly, Stage did not testify that no reasonable firefighter under the same or similar circumstances would have entered the intersection as Green did.

            The Alfords also relied on the testimony of J. D. Gardner, the Chief of the Pasadena Volunteer Fire Department.  Gardner testified that no reasonable firefighter would drive a fire truck without corrective lenses if such lenses were required by the terms of his driver’s license.  While the testimony was conflicting, the trial court found that Green was not wearing corrective lenses at the time of the collision although they were required by his license.  If there were an issue as to whether Green’s failure to wear corrective lenses was a contributing cause of the accident, Gardner’s testimony in this regard would surely have raised a fact issue about Green’s good faith.  However, the trial court found Green failed to see the Alfords’ vehicle, not because he failed to wear corrective lenses, but because there was intervening traffic blocking his view of the far right lane.  Accordingly, evidence that no reasonable firefighter would drive a fire truck without his glasses is no more relevant here than testimony that no reasonable firefighter would go to a fire without his boots and fire axe.

            Gardner was asked several times whether any reasonable firefighter would have entered the intersection at 23 miles per hour when he could not see the third lane of traffic.  In response, Gardner repeatedly testified that he believed in such a scenario the firefighter should proceed with “due regard.”  Gardner was then asked:

Q.  Okay.  But I’m talking about all these assumptions.  If he was going 23 miles-per-hour, if he couldn’t see the last lane of traffic, if he couldn’t stop in time; that wouldn’t be due regard, would it?

A.  Oh, no, sir.

Thereafter Gardner was asked:

Q.  All right.  We were talking about due regard.  I wanted to come back to this.  This was your testimony, right, that a reasonable fire truck operator must use due regard, right?

A.  Uh-huh.

Q.  While operating a fire truck, right?  Is that “yes”?

No. 1?

A.  Yes, sir.

Q.  Is this your testimony that a reasonable fire truck operator must use due regard?

A.  Yes, sir.

Q.  Now, I want you to consider these assumptions:

Number 2:  A fire truck has a red light on Jana, okay?

A.  Uh-huh.

Q.  Is that okay?

A.  I said yes, sir.

Q.  Westbound Fairmont Parkway has three lanes at 11 feet wide per lane, okay?

A.  Yes, sir.

Q.  Westbound Fairmont Parkway is a busy intersection, okay?

A.  Yes, sir.

Q.  The time of the collision was during Friday rush hour, okay?

A.  Okay.

Q.  The vision of the northern most lane of westbound Fairmont is obscured and the driver of the fire truck never sees the Alford truck, okay?

A.  Yes, sir.

            Q.  The fire truck is traveling at a speed in which it cannot stop before it enters the northern most or third lane of westbound Fairmont Parkway?

A.  Yes, sir.

Q.  Okay.  Now, knowing all of these assumptions and taking all of these assumptions, Mr. Green would not have been acting in due regard; isn’t that right?

A.  I disagree with you.

Q.  Okay.  Well, which one of these assumptions — I mean, do you — are you disagreeing with the assumptions?

A.  How fast was the Alford truck traveling?  I mean, there is a lot of things that you are not putting in here.  The fire truck operator fulfilled his requirement by visually checking the lane of traffic and he was operating in that apparatus in due regard because it was his assumption that he had acquired the right-of-way to that intersection when he proceeded through it.

(Emphasis added).

            While Gardner’s testimony comes very close to creating a fact issue, the test is not whether a “reasonable” firefighter would have slowed to 2 miles per hour, stopped, or even jumped out of the truck to physically inspect all lanes of traffic on foot.  In other words, the “test of good faith does not inquire into ‘what a reasonable person would have done,’ but into ‘what a reasonable [person] could have believed.’”  Ballantyne, 144 S.W.3d at 426 (quoting Telthorster, 92 S.W.3d at 465 quoting Wadewitz, 951 S.W.2d at 467 n.1).  Here, Gardner did not testify that no reasonable firefighter could have believed the risk taken by Green when he entered the intersection against a red light was justified under the circumstances.

            The Alfords contend Green is bound by the trial court’s findings of fact and that such findings created a fact issue regarding Green’s good faith.  In light of Stage’s and Gardner’s failure to testify that no reasonable firefighter would have entered the intersection as Green did under the same or similar circumstances, the question before us is whether a plaintiff can rebut a prima facie showing of good faith so as to create a fact issue without the benefit of expert testimony.

            It is well established that if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”  Tex. R. Evid. 702 (emphasis added).  Such expert testimony is required, however, when the alleged negligence is of such a nature as not to be within the experience of laymen.  FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 90 (Tex. 2004).  When asserting the affirmative defense of official immunity, the government employee may meet his burden of showing good faith through his own testimony.4  Of course, the defendant employee has the requisite experience, training, etc. to testify in his own behalf precisely because he is a fireman, policeman, ambulance driver, etc.  Here, the evidence shows that Pasadena Volunteer firefighters usually have 12 weeks of training and all are certified firefighters.  Some portion of that training relates to driving emergency vehicles.  One witness, for example, described a course for driver certification that requires a minimum of 16 hours of instruction, as well as, testing and driver qualification exercises.

            While driving is certainly in the sphere of experience for the average laymen, few have any experience driving emergency vehicles.  Moreover, to rebut a defendant’s showing of good faith so as to create a fact issue, the plaintiff must show that “no reasonable person in the defendant’s position could have thought the facts were such that they justified defendant’s acts.”  Chambers, 883 S.W.2d at 657 (emphasis added).  Driving an emergency vehicle in contravention of normal traffic laws, where a delayed response could prove fatal to one or more persons, in crowded conditions is simply not an activity within the common experience of laymen.  Thus, under the circumstances presented here, the Alfords were required to proffer the testimony of an expert witness.  Of course, the Alfords offered the testimony of several experts, but none testified that no reasonable firefighter could have believed he was justified in entering the intersection as Green did after weighing the risk of an accident against the need to respond to the emergency alarm.5

            Accordingly, we hold Green made an adequate showing that he acted in good faith; the Alfords did not rebut Green’s showing of good faith so as to raise a fact issue in that regard; and Green was entitled to official immunity.  Green’s first point of error is sustained.  Because of our disposition of Green’s first issue, we need not address his remaining points of error.  The judgment of the trial court is reversed and judgment is rendered that the Alfords take nothing on their claims against Green.

 

 

 

                                                                                   

                                                                        /s/        J. Harvey Hudson

                                                                                    Justice

 

 

 

 

Judgment rendered and Majority and Dissenting Opinions filed March 27, 2007.

Panel consists of Justices Anderson, Hudson, and Guzman.  (Guzman, J., dissenting).



1  Tex. Civ. Prac. & Rem. Code Ann. § 108.002 (Vernon 2005).

2  Volunteers are not government “employees” and, thus, their negligence does not subject government agencies to liability under the Texas Tort Claims Act.  Harris County v. Dillard, 883 S.W.2d 166, 168 (Tex. 1994).  Whether volunteers are “public officials” entitled to assert the affirmative defense of official immunity has not been decided.  As a volunteer firefighter, Green was included within the statutory definition of “public safety personnel.”  Tex. Occ. Code Ann. § 1803.001(4)(A) (Vernon 2004).  Because neither party has disputed appellant’s status as a public official, we assume, without deciding, that he was entitled to assert the defense of official immunity.

3  The alarm in this case was, in fact, a false alarm.

4  See Freeman v. Wirecut E.D.M., Inc., 159 S.W.3d 721, 730 (Tex. App.—Dallas 2005, no pet.) (holding police office may establish good faith through his own testimony); Zuniga v. Navarro & Assocs, P.C., 158 S.W.3d 663, 672 (Tex. App.—Corpus Christi 2005, pet. denied) (holding good faith may be established in summary judgment context by the defendant official’s own affidavit);  Gidvani v. Aldrich, 99 S.W.3d 760, 764 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding district attorney could establish good faith in summary judgment context by his own affidavit); Hayes v. Patrick, 45 S.W.3d 110, 116 (Tex. App.—Fort Worth 2000, pet. denied) (holding police office may establish good faith in context of summary judgment by his own affidavit); Beatty v. Charles, 936 S.W.2d 28, 31 (Tex. App.—San Antonio 1996, no writ) (holding good faith may be established by expert testimony or the defendant police officer’s testimony).

5  The Alfords also contend Green failed to offer any evidence on what alternative courses of action were available to achieve a comparable result.  More specifically, the Alfords argue that Green failed to satisfy his burden of establishing his affirmative defense of official immunity because he did not offer any alternative to his (1) not wearing glasses, (2) not using the siren or horn, (3) failure to secure the third lane of traffic, and (4) entering the intersection at 23 miles per hour.  However, Green, as well as other witnesses, denied all these allegations.

            Moreover, we are not aware of any alternative course of conduct.   Green was obliged to physically move his truck and fellow firefighters to the scene of a potential fire of unknown magnitude and danger to others—he had no alternative means of combating this potential disaster.  In driving his truck to the scene of the alarm, Green testified that he considered the need to get to the scene of the alarm against the danger of a collision while entering the intersection against a red traffic light.  Green, as well as Lawhorn, testified that they looked at the westbound lanes of traffic, saw no one approaching the intersection, and considered it safe to proceed through the intersection.  We do not believe it was necessary for Green to offer hypothetical alternatives to conduct he and other witnesses denied he engaged in.