Texas Judiciary Online - HTML Opinion

Reversed and Rendered and Majority and = Dissenting=20 Opinions filed March 27, 2007.

In The

Fourteenth=20 Court of Appeals

____________

NO. 14-05-00407-CV

____________

CHRISTOPHER=20 GREEN,=20 Appellant

DWAINIA ALFORD, = Individually,=20 and as Next Friend of AARON ALFORD, and RONALD=20 ALFORD,=20 Appellees

On Appeal from the 152^nd=20 District Court

Harris County, Texas

Trial Court Cause No. 2002-53991

M A J O R=20 I T Y O P I N I O N

= Christopher Green, the appellant, was involved in a traffic = accident while=20 driving a fire truck belonging to the Pasadena Volunteer Fire=20 Department. Dwainia and Ronald Alford, and their son Aaron = Alford=20 (the Alfords) were injured in the accident. Dwainia Alford = sued=20 Green, both individually and as next friend of her minor son, = Aaron, for=20 damages stemming from the accident. Ronald Alford, as = intervenor,=20 also sought to recover his damages. Following a bench trial, = judgment was assessed against Green in excess of $1,600,000. = The=20 trial judge made specific findings of fact and conclusions of law = in which=20

he held Green had = engaged in=20 reckless conduct and was not entitled to official immunity because = he had=20 not acted in =93good faith.=94 In three issues, Green = contends the trial=20 court erred in (1) refusing to render judgment in his favor due to = his=20 defense of official immunity, (2) rendering judgment when the = evidence was=20 legally and factually insufficient to support its findings of fact = and=20 conclusions of law, and (3) rendering judgment for damages = exceeding the=20 limit of liability set forth in Section 108.002 of the Civil = Practice and=20 Remedies Code.¹ We reverse and = render=20 judgment that the Alfords take nothing on their claims against=20 Green.

= On August 30, 2002, Christopher Green, a volunteer fireman for the = Pasadena Volunteer Fire Department, received notice of an = automatic fire=20 alarm activation at 5:15 p.m. on his pager. He arrived at = the fire=20 station in less than five minutes. Shortly thereafter, Green = drove a=20 large fire truck out of the station accompanied by several other=20 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=20 their son, nine-year-old Aaron Alford, were driving westbound on = Fairmont=20 Parkway. Alford said as he approached the intersection with = Jana the=20 traffic light was red. As he began to slow his pickup truck = in=20 anticipation of stopping, the light turned green. Alford = looked to=20 his right and left, took his foot off the brake, and entered the=20 intersection at approximately 30 miles per hour. Alford = claimed he=20 never saw or heard Green=92s fire truck until the impact. = Alford said,=20 =93I just caught a flash of it out of my eye =96 the corner of my = eye before=20 it hit the =96 hit me.=94 He testified the incident occurred = in =93an=20 instant=94=97=93just a flash.=94

= Alford=92s pickup rolled over on its side and came to rest against = a utility=20 pole. Alford turned to look back at Aaron and observed his = son=20 hanging unconscious in his seat belt and bleeding from the = mouth. =20 While all three members of the family were injured, Ryan sustained = the=20 most serious injury with significant head and neurological = trauma. =20 Alford and his family were eventually transported from the scene = in two=20 Life Flight helicopters.

= Dwaina Alford, like her husband, testified that she never heard a = siren or=20 horn before the impact. In fact, she never saw the fire = truck. =20 She testified, =93I saw lights and sheets of metal and heard a big = crash =96=20 bang =96 like I was in a tunnel.=94

= In stark contrast, Green testified he activated his emergency = lights and=20 siren even before he exited the fire station. As he turned = north on=20 Jana, Green said he began to periodically sound his horn as = well. =20 Green slowed the fire truck as he neared the eastbound lanes of = Fairmont=20 Parkway. When the traffic had yielded to his presence, Green = proceeded across the eastbound lanes of Fairmont Parkway, crossed = a large=20 median (50 to 60 yards wide), and neared the intersection of the = westbound=20 lanes of Fairmont Parkway.

= The traffic light was red, and Green said he slowed and looked to = his=20 right. He saw the first two lanes contained lines of = stationary=20 vehicles=97the far lane was clear. Green testified that he = began=20 crossing the intersection at no more than 10 miles per hour. = Green=20 stated that he was moving slowly enough to stop for a vehicle if = he had=20 seen a vehicle entering the intersection. However, he said = his first=20 sighting of the Alford=92s pickup was simultaneous with the = collision. =20 According to Green, the Alford=92s pickup truck struck the right = front=20 corner of the fire truck, rolled over, and careened into a utility = pole=20 supporting the traffic signal lights. Green said after the = impact,=20 his fire truck was sitting stationary in the intersection. = Green=20 remained in the intersection for a few seconds staring at the = Alford=92s=20 wrecked vehicle. Green then proceeded to drive across the=20 intersection and park his fire truck on Jana. Green and the = other=20 fire fighters on his truck then went to the Alford=92s vehicle and = began=20 administering medical care to the occupants.

= Riding =93shotgun=94 in the cab with Green that day was another = volunteer=20 fireman, Richard Lawhorn. Lawhorn said Green activated the = fire=20 truck=92s emergency lights and siren on the fire station apron = before ever=20 entering traffic. Lawhorn said they proceeded north on Jana = toward=20 the intersection with the eastbound lanes of Fairmont = Parkway. After=20 successfully navigating the first intersection, Lawhorn said Green = began=20 slowing as he approached the intersection with the westbound lanes = of=20 Fairmont Parkway.

= Lawhorn said one of his duties in the cab is to act as a =93second = set of=20 eyes.=94 Lawhorn looked to his right and saw two long lines = of traffic=20 at a complete stop on Fairmont Parkway. He testified he saw = no=20 movement in any of the lanes on Fairmont Parkway. Green = began to=20 proceed through the intersection at a speed that Lawhorn estimated = to be=20 no more than 20 to 25 miles per hour. Lawhorn said that just = before=20 impact he saw a =93blue streak=94 out of the corner of his right = eye, turned=20 and saw the surprised look on Ronald Alford=92s face, saw the nose = of the=20 pickup go down just before impact, and then observed the bed of = the pickup=20 =93somersault=94 past the windshield of the fire truck. = Lawhorn=20 estimated the speed of the fire truck at the moment of impact was = no more=20 than 10 miles per hour because immediately after impact the fire = truck was=20 at a dead stop in the roadway with the front of the fire truck = still in=20 the far right lane of Fairmont Parkway where the impact = occurred. =20 Because they were blocking the intersection and needed to attend = to the=20 Alfords, Lawhorn told Green to pull the fire truck out of the=20 intersection. Lawhorn said Green then proceeded to park the = truck=20 just north of the intersection. Lawhorn testified that he = did not=20 observe Green driving in an unsafe manner, and he would have done = nothing=20 differently if he had been in the driver=92s seat.

= Douglas Lowther also witnessed the accident. He testified he = was in=20 the first vehicle in a line of vehicles stopped at a red traffic = light in=20 the middle lane of the westbound lanes of Fairmont Parkway at the=20 intersection with Jana. Lowther said additional vehicles = were=20 stopped in the left lane, but no vehicles were in the far right=20 lane. Lowther heard and saw Green=92s fire truck approaching = from his=20 left, driving north on Jana. The emergency lights were on, = and=20 Lowther said he clearly heard the fire truck=92s siren and = horn. =20 Lowther=92s light turned green =93very shortly=94 before the = collision. In=20 fact, Lowther said his light did not turn green until the fire = truck had=20 already begun entering the intersection. Thus, he opined the = fire=20 truck entered the intersection on a yellow light. In any = event,=20 Lowther said he and the drivers of the other vehicles on Fairmont = Parkway=20 remained stationary to permit the fire truck to pass through the=20 intersection. As the fire truck proceeded through the = intersection,=20 Lowther estimated its speed at approximately 25 to 35 miles per=20 hour. The Alford=92s pickup suddenly entered the = intersection in the=20 far right lane of Fairmont Parkway and was struck by the fire = truck. =20 The Alford=92s pickup truck became airborne and smashed into a = utility=20 pole. Lowther said the fire truck was not accelerating at = the time=20 of the collision, but the weight and speed of the fire truck = carried it=20 through the intersection after the impact, and it stopped just = north of=20 the intersection.

= Christopher Hann, a college student, also witnessed the = accident. =20 Hann said he was the second car in the middle lane of the = westbound lanes=20 of Fairmont Parkway. Like Lowther, Hann testified that while = his=20 light was red, he heard the siren of an approaching fire = truck. Hann=20 said he looked to his left and saw the truck, with its emergency = lights=20 on, approaching the intersection from the south. The fire = truck=20 slowed as it approached the intersection. Hann claims his = light=20 turned green =93a couple of seconds=94 before the fire truck = entered the=20 intersection, and that neither he nor any of the other drivers = that saw=20 the fire truck approaching the intersection moved. The fire = truck=20 entered the intersection at approximately 25 to 30 miles per = hour. =20 Hann estimated the fire truck could not have stopped in time to = avoid the=20 accident, but he was of the opinion the collision was not = Green=92s=20 fault.

= Josef Levi Wells and his wife, Jamie Faulkner, were also driving = westbound=20 in the middle lane of the westbound lanes of Fairmont = Parkway. =20 Although Faulkner testified that the light had been green for a = good=20 while, she said her husband slowed to a stop to yield to Green=92s = approaching fire truck. Faulkner testified that the fire = truck =93was=20 coming very fast,=94 with no red flashing lights, and no siren or=20 horn. Moreover, she said the fire truck did not slow or stop = before=20 entering the intersection. Faulkner said she saw the Alfords = pickup=20 pass by her in the far right lane, realized the Alfords could not = see the=20 fire truck, and knew there would be a collision.

= Even though they were traveling in the same vehicle, Wells = testimony=20 differed significantly from his wife=92s statement. Wells = said he and=20 his wife were not approaching the intersection, but were stopped = in=20 traffic at a red light. He said he was the third car in the = middle=20 lane and, due to a large truck in the left lane, Wells could not = see the=20 approach of Green=92s fire truck. When the light turned = green, no one=20 moved for 5 to 10 seconds, because unlike Wells, the cars ahead of = him=20 could see the approaching fire truck. As Wells was = considering=20 honking his horn, he suddenly saw the fire truck enter the = intersection=20 traveling at a speed he estimated to be 20 to 30 miles per hour = =93or=20 faster.=94 Unlike his wife, he saw the fire truck=92s = emergency=20 lights. However, like his wife, he heard no sirens or = horn. =20 After the collision, Wells said the fire truck did not stop, but = proceeded=20 through the intersection and stopped just north of the = intersection on=20 Jana.

= James Vaught was driving south on Jana. As he neared the=20 intersection of Jana and the westbound lanes of Fairmont Parkway, = he saw=20 Green=92s fire truck coming north on Jana. He heard the fire = truck=92s=20 horn at a distance of 250 to 300 yards which he said sounded = =93like a=20 freight train.=94 The emergency lights on the fire truck = were=20 flashing, and as the fire truck approached the intersection, = Vaught could=20 also hear its siren. Anticipating that the fire truck might = turn=20 left on the westbound lanes of Fairmont Parkway, Vaught slowed to = a stop=20 so as not to interfere with the emergency vehicle. Vaught = observed=20 Green slow the fire truck before crossing the eastbound lanes of = Fairmont=20 Parkway. When it appeared safe to cross the intersection, = Vaught=20 heard the truck=92s engine roar as the truck accelerated north = across the=20 median toward the westbound lanes of Fairmont Parkway. As = the fire=20 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=20 vehicle. The fire truck once again began to accelerate to=20 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=20 struck the front end of the =96 the fire truck was hit. And = then this,=20 if I remember right, I think it was a Dodge. It was a truck = =96 I=20 mean, immediately got my attention. It was coming right at = me. =20 It would have hit me had it not been for the light pole between = where =96=20 well, the impact had occurred and =96 and the direction that it = went after=20 it hit.

= Like the other witnesses, Vaught said the Alford=92s pickup truck = entered=20 the intersection from the far right lane of the westbound lanes of = Fairmont Parkway. However, Vaught described the Alford=92s = appearance=20 as coming =93out of nowhere,=94 and occurring in =93a very split = second=94 or =93in=20 the blink of an eye.=94 After =93bouncing off=94 the front = right corner of=20 the fire truck, Vaught said the Alford=92s pickup truck careened = into, and=20 was partially wrapped around, a utility pole. Immediately = after the=20 impact, Vaught said the fire truck was stationary in the middle of = the=20 intersection partially blocking the right lane and completely = blocking the=20 middle and left lanes of the westbound lanes of Fairmont = Parkway. =20 Vaught said the fire truck then proceeded to clear the = intersection and=20 parked on Jana just north of the intersection.

= Vaught and others stopped to try to render aid. It was at = that time=20 he noticed a child in the back seat of the Alford=92s truck had = been very=20 badly injured.

= Approximately 50 to 60 yards from point of impact, Diana Canales = was=20 stopped at a red light in the eastbound lanes of Fairmont Parkway = at the=20 intersection of Fairmont Parkway and Jana. Canales said she = heard a=20 fire truck horn, turned to her right, and saw the fire truck = approaching=20 the intersection with its emergency lights on. Canales could = not=20 recall whether the truck=92s siren was on or not.

= The fire truck passed through the intersection in front of Canales = and=20 proceeded north on Jana toward the intersection of the westbound = lanes of=20 Fairmont Parkway. Shortly after the fire truck passed by = her,=20 Canales=92 heard the sound of a collision and she looked to her = left. =20 Sixty to seventy yards away, Canales saw the Alford=92s pickup = careening=20 into a utility pole at the intersection of Jana and the westbound = lanes of=20 Fairmont Parkway. Canales said the fire truck did not appear = to be=20 moving.

= A few cars away from Canales, Norman Glynn Daily, was also stopped = in the=20 eastbound lanes of Fairmont Parkway. As he waited for the = traffic=20 light to turn green, he saw the fire truck coming north on = Jana. =20 Although the truck=92s emergency lights were on, Daily testified = that no=20 horn or siren were being sounded as it proceeded through the = intersection=20 in front of him. Moments after the fire truck crossed = through the=20 intersection, Daily=92s light turned green. Daily watched as = the fire=20 truck continued toward a red traffic light at the intersection of = Jana and=20 the westbound lanes of Fairmont Parkway. Daily estimated the = speed=20 of the fire truck at 30 miles per hour. He said he never saw = any=20 brake lights on the fire truck before it struck the Alford=92s = pickup. =20 Daily testified that the kinetic energy of the fire truck carried = it=20 through the intersection after the crash and it stopped well clear = of the=20 intersection.

= Patricia Deets was working as a nurse in her office on the corner = of Jana=20 and the eastbound lanes of Fairmont Parkway. Deets testified = that=20 she heard the fire truck=92s horn and sirens and looked out her=20 window. She watched as the fire truck proceeded through the=20 intersection of Jana and the eastbound lanes of Fairmont = Parkway. =20 Once the fire truck had cleared the intersection and was traveling = toward=20 the intersection of Jana and the westbound lanes of Fairmont = Parkway,=20 Deets resumed her paper work. Deets then heard a collision, = looked=20 up, and noticed that there had been a serious accident at the = intersection=20 of Jana and the westbound lanes of Fairmont Parkway. Deets = said she=20 did not believe Green was at fault, and she did not see the fire = truck do=20 anything out of the ordinary.

= Victor Lucio was driving eastbound on Fairmont Parkway and turned = left at=20 the intersection of Fairmont Parkway and Jana. As Lucio = drove north=20 on Jana, he looked in his rear view mirror and saw Green=92s fire = truck=20 coming up on him fast. Lucio said he was afraid he was going = to be=20 hit, and he immediately pulled into the left lane to avoid a=20 collision. Lucio said the fire truck had its emergency = lights on,=20 but he heard no siren or horn. As the fire truck passed him, = Lucio=20 estimated its speed at 40 to 50 miles per hour. He testified = that he=20 was only three car lengths behind the fire truck when it collided = with the=20 Alford=92s pickup. Lucio testified that at no time did the = fire truck=20 slow down or brake before entering the intersection with the = westbound=20 lanes of Fairmont Parkway. He said the momentum of the fire = truck=20 carried it completely through the intersection.

= The trial judge, as the trier of fact, was tasked with resolving = these=20 conflicting accounts of the accident. The difficulty, of = course, is=20 that Green=92s testimony was both corroborated and refuted by = numerous=20 witnesses. After weighing all the evidence, the trial court = found=20 that (1) Green entered the intersection of Jana and the westbound = lanes of=20 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=20 northernmost lane of Fairmont Parkway; (3) at the time of impact, = the fire=20 truck was traveling at 23 miles per hour; (4) the fire truck = entered the=20 intersection at a speed too fast to stop for westbound traffic = that might=20 be entering the intersection; and (5) at the time of the = collision, Green=20 was not using the fire truck=92s siren or other audible warning=20 signal.

Defense=20 of Official Immunity

= At the close of evidence, Green moved for judgment as a matter of = law on=20 the theory that he was protected by the doctrine of official=20 immunity. The trial court considered, but rejected the = defense.=20 In his first issue, Green contends the trial court erred in = refusing=20 to render judgment in his favor based on the doctrine of official=20 immunity.

= Official immunity protects public officials from suit arising from = performance of their (1) discretionary duties (2) in good faith = (3) within=20 the scope of their authority. Ballantyne v. Champion = Builders,=20 Inc., 144 S.W.3d 417, 422 (Tex. 2004). The purpose of = official=20 immunity is to insulate essential government functions from the = harassment=20 of litigation. Kassen v. Hatley, 887 S.W.2d 4, 8 = (Tex.=20 1994). The rationale for the doctrine rests on the theory = that the=20 threat of liability will make public officials unduly timid in = carrying=20 out their official duties, and that effective government will be = promoted=20 if officials are freed of the costs of vexatious and often = frivolous=20 litigation. Westfall v. Erwin, 484 U.S. 292, = 295=20 (1988).

= Although Green was not a paid city employee at the time of the = accident,=20 no one disputes that he was a =93public official=94 and = potentially protected=20 by the defense of official immunity.² Likewise, no = one=20 disputes that Green was exercising discretionary duties and was = within the=20 scope of his authority when he proceeded through the = intersection. =20 Rather, the Alfords contend, and the trial court found, that Green = did not=20 exercise his duties in =93good faith=94 and, thus, was not = entitled to=20 immunity.

= To determine whether a public official has acted in good faith, we = look to=20 the objective standard adopted in City of Lancaster v. = Chambers,=20 883 S.W.2d 650, 656 (Tex. 1994). Under that standard = we must=20 examine the record to see whether a reasonably prudent official, = under the=20 same or similar circumstances, could have believed that his = conduct was=20 justified based on the information he possessed when the conduct=20 occurred. Ballantyne, 144 S.W.3d at 426. In = other=20 words, after considering a =93risk versus need=94 analysis, could = a reasonably=20 prudent official have believed his conduct was = justified.

= In the context of an emergency response, the =93need=94 aspect of = the test=20 refers to the urgency of the circumstances requiring official=20 intervention. Wadewitz v. Montgomery, 951 S.W.2d 464, = 467=20 (Tex. 1997). In other words, need is determined by factors = such as=20 the seriousness of the alarm to which the official is responding, = whether=20 his presence is necessary to prevent injury or loss of life, and = what=20 alternative courses of action, if any, were available to achieve a = comparable result. Id. The =93risk=94 aspect of = good faith,=20 on the other hand, refers to the countervailing public safety = concerns,=20 i.e., the nature and severity of harm that the official=92s = actions could=20 cause, the likelihood that any harm would occur, and whether any = risk of=20 harm would be clear to a reasonably prudent official. =20 Id.

= Here, the parties agree that Green satisfied two of the three = elements of=20 his affirmative defense of official immunity, namely, at the time = of the=20 accident he (1) was engaged in a discretionary duty that (2) was = within=20 the scope of his authority as a firefighter. To establish = his good=20 faith, Green testified that he weighed the need to respond quickly = to the=20 alarm against the risk of injury from entering the intersection on = a red=20 light. To minimize the risk, Green said (1) he activated his = emergency lights and siren before leaving the station; (2) he = slowed down=20 as he approached the intersection; (3) before entering the = intersection,=20 he activated his air horn and looked in the direction of = approaching=20 traffic; (4) he saw that no vehicles were moving; (5) he believed = his view=20 of the far right lane of Fairmont Parkway was not obstructed and = if it had=20 been obstructed he would have stopped; and (6) he drove slowly = enough that=20 he could have stopped in time to avoid an accident if he had seen = the=20 Alfords=92 vehicle. Green contends he was entitled to = official=20 immunity as a matter of law because the Alfords presented no = evidence (or=20 in the alternative, factually insufficient evidence) to raise a = fact issue=20 regarding whether he acted in =93good faith.=94

= In support of his contention, Green relies on a case with many = factual=20 similarities to the case presented here. In City of San = Angelo=20 Fire Department v. Hudson, 179 S.W.3d 695 (Tex. App.=97Austin = 2005, no=20 pet.), the Austin Court of Appeals was confronted with a case = arising from=20 a collision between a fire truck driven by Kelly Hood and an = automobile=20 driven by Sheila Hudson. As in the case presented here, Hood = was=20 driving the truck to an apparent fire. Id. at = 700. Hood=20 entered an intersection against a red light. Id. at=20 698. Hood claimed he slowed considerably before entering the = intersection and did so only after he was satisfied that all = traffic had=20 stopped and was yielding to his passage. Id. at = 700. =20 There was conflicting evidence presented however regarding whether = Hood=20 slowed the fire truck before proceeding through the intersection, = and=20 Hudson claimed she did not see or hear the truck before it struck = her=20 car. The court found, however, that Hood established, as a = matter of=20 law, that he was acting in good faith and, thus, entitled to = official=20 immunity.

= Under the facts presented here, we agree that Green presented = sufficient=20 evidence to establish the affirmative defense of official = immunity. =20 However, the fact that Green made a prima facie showing satisfying = the=20 elements of good faith, does not end our enquiry. The = Alfords=20 contend they offered evidence rebutting Green=92s assertions and, = thus,=20 created a fact issue as to whether he acted in good faith. = Having=20 created a fact issue, the Alfords claim that issue was resolved = against=20 Green by the trier of fact. Indeed, the trial judge, acting = as the=20 trier of fact in the court below, apparently disbelieved much of = Green=92s=20 testimony because the trial court found that Green (1) did not = assess the=20 risk of entering the intersection as he did against the need to = respond=20 quickly to the fire alarm, (2) did not activate his siren, (3) did = not use=20 his air horn, (4) could not and did not see the far right lane of = Fairmont=20 Parkway, (5) and was driving too fast to stop when he entered the=20 intersection.

= In addition, the trial court also concluded that Green did not act = in good=20 faith because evidence was admitted showing that (1) Green was = suffering=20 from a progressive eye disease that principally blurred the vision = in his=20 right eye; (2) in 1997 or 1998, Green failed a vision test = administered by=20 the Texas Department of Public Safety; (3) Green was required to = wear=20 corrective lenses while driving; and (4) Green was not wearing = corrective=20 lenses at the time of the collision. The court further found = that=20 Green (as he himself admitted) was aware that the fire alarm was = an=20 automatic alarm and that most automatic alarms are later = discovered to be=20 false alarms.³

= While these factual findings may be damning to Green, they do not = resolve=20 the critical issue before us. After a defendant has offered = evidence=20 showing he acted in good faith, he is entitled to official = immunity as a=20 matter of law unless the plaintiff offers some evidence = =93that no=20 reasonable person=94 in the defendant=92s =93position could have = thought that=20 the facts justified=94 the defendant=92s conduct. = See=20 University of Houston v. Clark, 38 S.W.3d 578, 581 (Tex. = 2000). =20 To make this critical showing, the Alfords relied principally upon = the=20 testimony of their expert witness, Robert Stage. Stage = testified=20 that (1) Green caused the collision; (2) his actions were = reckless; (3) he=20 secured the first two lanes of westbound traffic but erred in = failing to=20 secure the third lane of traffic; (4) he should have come to a = complete=20 stop until he could secure the third lane of traffic; and (5) he = should=20 have known that his conduct posed a high degree of risk. = Stage also=20 testified that, in his opinion, the risk versus need balancing = test was=20 not met when Green entered the third lane of traffic without first = =93securing=94 it.

= Stage=92s opinion that Green caused the accident is largely=20 undisputed. Moreover, who =93caused=94 the accident is not = the relevant=20 issue. The fact that a governmental employee was negligent = will not=20 defeat good faith. Telthorster v. Tennell, 92 S.W.3d = 457, 465=20 (Tex. 2002). The fact that Green=92s conduct may have been = =93reckless=94=20 is also unavailing. Conduct that is clearly reckless may be=20 reasonable in a time of crisis. For example, in White v.=20 Tackett, 173 S.W.3d 149, 151 (Tex. App.=97Fort Worth 2005) the = plaintiff=20 alleged that a Texas Department of Public Safety trooper was = =93reckless=94 in=20 initiating and continuing a high speed pursuit that ultimately led = to her=20 injuries. The court agreed that the trooper=92s conduct = presented =93a=20 clear risk of harm to the public in continuing, rather than = terminating,=20 the pursuit,=94 but held the risk was outweighed by the need to = apprehend=20 the suspect. Id. at 155. The defense of = official=20 immunity exists precisely because government employees are = sometimes=20 called upon to take measured risks in the performance of their = duties that=20 may sometimes result in injury or damage to others.

= We also observe that Stage based his opinion regarding Green=92s=20 recklessness on the fact that he had an accident. In other = words,=20 Stage testified that because Green collided with a vehicle, his = conduct=20 necessarily involved a high degree of risk. Stage testified, = =93If=20 [Green] looked and thought it was clear and there was a vehicle = there,=20 then he didn=92t take the time to look and see clearly.=94 = However, we=20 do not agree with Stage=92s assumption that Green=92s inaccurate = perception=20 necessarily rendered it unreasonable for him to have believed that = all=20 traffic was stopped based upon his knowledge at the time. = =93If this=20 were so, any admission that a risk existed would defeat the = element of=20 good faith, and any collision would be adequate evidence that a = reasonable=20 employee would have assessed the risk differently, thereby = vitiating the=20 doctrine of official immunity in most or all cases. Official = immunity is designed to encourage emergency personnel to take = reasonably=20 calculated risks when they have properly considered need and risk, = not to=20 punish them for having done so.=94 Hudson, 179 S.W.3d = at=20 706.

= Most importantly, Stage did not testify that no reasonable = firefighter=20 under the same or similar circumstances would have entered the=20 intersection as Green did.

= The Alfords also relied on the testimony of J. D. Gardner, the = Chief of=20 the Pasadena Volunteer Fire Department. Gardner testified = that no=20 reasonable firefighter would drive a fire truck without corrective = lenses=20 if such lenses were required by the terms of his driver=92s = license. =20 While the testimony was conflicting, the trial court found that = Green was=20 not wearing corrective lenses at the time of the collision = although they=20 were required by his license. If there were an issue as to = whether=20 Green=92s failure to wear corrective lenses was a contributing = cause of the=20 accident, Gardner=92s testimony in this regard would surely have = raised a=20 fact issue about Green=92s good faith. However, the trial = court found=20 Green failed to see the Alfords=92 vehicle, not because he failed = to wear=20 corrective lenses, but because there was intervening traffic = blocking his=20 view of the far right lane. Accordingly, evidence that no = reasonable=20 firefighter would drive a fire truck without his glasses is no = more=20 relevant here than testimony that no reasonable firefighter would = go to a=20 fire without his boots and fire axe.

= Gardner was asked several times whether any reasonable firefighter = would=20 have entered the intersection at 23 miles per hour when he could = not see=20 the third lane of traffic. In response, Gardner repeatedly = testified=20 that he believed in such a scenario the firefighter should proceed = with=20 =93due regard.=94 Gardner was then asked:

Q. Okay. But I=92m talking = about all=20 these assumptions. If he was going 23 miles-per-hour, if he = couldn=92t=20 see the last lane of traffic, if he couldn=92t stop in time; that = wouldn=92t=20 be due regard, would it?

A. Oh, no, sir.

Thereafter Gardner was asked:

Q. All right. We were = talking about=20 due regard. I wanted to come back to this. This was = your=20 testimony, right, that a reasonable fire truck operator must use = due=20 regard, right?

A. Uh-huh.

Q. While operating a fire truck,=20 right? Is that =93yes=94?

No. 1?

A. Yes, sir.

Q. Is this your testimony that a = reasonable=20 fire truck operator must use due regard?

A. Yes, sir.

Q. Now, I want you to consider = these=20 assumptions:

Number 2: A fire truck has a red = light on=20 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,=20 okay?

A. Yes, sir.

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

A. Yes, sir.

Q. The time of the collision was = during=20 Friday rush hour, okay?

A. Okay.

Q. The vision of the northern most = lane of=20 westbound Fairmont is obscured and the driver of the fire truck = never sees=20 the Alford truck, okay?

A. Yes, sir.

= Q. The fire truck is traveling at a speed in which it cannot = stop=20 before it enters the northern most or third lane of westbound = Fairmont=20 Parkway?

A. Yes, sir.

Q. Okay. Now, knowing all = of these=20 assumptions and taking all of these assumptions, Mr. Green would = not have=20 been acting in due regard; isn=92t that right?

A. I disagree with = you.

Q. Okay. Well, which one of = these=20 assumptions =97 I mean, do you =97 are you disagreeing with the=20 assumptions?

A. How fast was the Alford = truck=20 traveling? I mean, there is a lot of things that you are not = putting=20 in here. The fire truck operator fulfilled his requirement = by=20 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=20 the right-of-way to that intersection when he proceeded through=20 it.

(Emphasis = added).

= While Gardner=92s testimony comes very close to creating a fact = issue, the=20 test is not whether a =93reasonable=94 firefighter would have = slowed to 2=20 miles per hour, stopped, or even jumped out of the truck to = physically=20 inspect all lanes of traffic on foot. In other words, the = =93test of=20 good faith does not inquire into =91what a reasonable person would = have=20 done,=92 but into =91what a reasonable [person] could have = believed.=92=94 =20 Ballantyne, 144 S.W.3d at 426 (quoting Telthorster, = 92=20 S.W.3d at 465 quoting Wadewitz, 951 S.W.2d at 467 = n.1). Here,=20 Gardner did not testify that no reasonable firefighter could have = believed=20 the risk taken by Green when he entered the intersection against a = red=20 light was justified under the circumstances.

= The Alfords contend Green is bound by the trial court=92s findings = of fact=20 and that such findings created a fact issue regarding Green=92s = good=20 faith. In light of Stage=92s and Gardner=92s failure to = testify that no=20 reasonable firefighter would have entered the intersection as = Green did=20 under the same or similar circumstances, the question before us is = whether=20 a plaintiff can rebut a prima facie showing of good faith so as to = create=20 a fact issue without the benefit of expert testimony.

= It is well established that if =93scientific, technical, or other=20 specialized knowledge will assist the trier of fact to understand = the=20 evidence or to determine a fact in issue, a witness qualified as = an expert=20 by knowledge, skill, experience, training, or education may = testify=20 thereto in the form of an opinion or otherwise.=94 Tex. R. Evid. 702 = (emphasis=20 added). Such expert testimony is required, however, = when the=20 alleged negligence is of such a nature as not to be within the = experience=20 of laymen. FFE Transp. Servs., Inc. v. Fulgham, 154 = S.W.3d=20 84, 90 (Tex. 2004). When asserting the affirmative defense = of=20 official immunity, the government employee may meet his burden of = showing=20 good faith through his own testimony.⁴ Of course, the = defendant=20 employee has the requisite experience, training, etc. to testify = in his=20 own behalf precisely because he is a fireman, policeman, ambulance = driver,=20 etc. Here, the evidence shows that Pasadena Volunteer = firefighters=20 usually have 12 weeks of training and all are certified=20 firefighters. Some portion of that training relates to = driving=20 emergency vehicles. One witness, for example, described a = course for=20 driver certification that requires a minimum of 16 hours of = instruction,=20 as well as, testing and driver qualification exercises.

= While driving is certainly in the sphere of experience for the = average=20 laymen, few have any experience driving emergency vehicles. =20 Moreover, to rebut a defendant=92s showing of good faith so = as to=20 create a fact issue, the plaintiff must show that =93no reasonable = person=20 in the defendant=92s position could have thought the facts = were such=20 that they justified defendant=92s acts.=94 Chambers, = 883 S.W.2d=20 at 657 (emphasis added). Driving an emergency vehicle in=20 contravention of normal traffic laws, where a delayed response = could prove=20 fatal to one or more persons, in crowded conditions is simply not = an=20 activity within the common experience of laymen. Thus, under = the=20 circumstances presented here, the Alfords were required to proffer = the=20 testimony of an expert witness. Of course, the Alfords = offered the=20 testimony of several experts, but none testified that no = reasonable=20 firefighter could have believed he was justified in entering the=20 intersection as Green did after weighing the risk of an accident = against=20 the need to respond to the emergency alarm.⁵

= Accordingly, we hold Green made an adequate showing that he acted = in good=20 faith; the Alfords did not rebut Green=92s showing of good faith = so as to=20 raise a fact issue in that regard; and Green was entitled to = official=20 immunity. Green=92s first point of error is sustained. = Because=20 of our disposition of Green=92s first issue, we need not address = his=20 remaining points of error. The judgment of the trial court = is=20 reversed and judgment is rendered that the Alfords take nothing on = their=20 claims against Green.

&= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; = =20

&= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; =20 /s/ J. Harvey = Hudson

&= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; = =20 Justice

Judgment rendered and = Majority=20 and Dissenting Opinions filed March 27, 2007.

Panel = consists of=20 Justices Anderson, Hudson, and Guzman. (Guzman, J.,=20 dissenting).

¹ Tex. Civ. = Prac. &=20 Rem. Code Ann. =A7 108.002 = (Vernon=20 2005).

² Volunteers are not government = =93employees=94 and,=20 thus, their negligence does not subject government agencies to = liability=20 under the Texas Tort Claims Act. Harris County v.=20 Dillard, 883 S.W.2d 166, 168 (Tex. 1994). Whether = volunteers are=20 =93public officials=94 entitled to assert the affirmative defense = of official=20 immunity has not been decided. As a volunteer firefighter, = Green was=20 included within the statutory definition of =93public safety=20 personnel.=94 Tex. = Occ. Code=20 Ann. =A7 1803.001(4)(A) (Vernon 2004). Because = neither party=20 has disputed appellant=92s status as a public official, we assume, = without=20 deciding, that he was entitled to assert the defense of official=20 immunity.

³ The=20 alarm in this case was, in fact, a false alarm.

⁴ See=20 Freeman v. Wirecut E.D.M., Inc., 159 S.W.3d 721, 730 (Tex.=20 App.=97Dallas 2005, no pet.) (holding police office may establish = good faith=20 through his own testimony); Zuniga v. Navarro & Assocs, = P.C.,=20 158 S.W.3d 663, 672 (Tex. App.=97Corpus Christi 2005, pet. denied) = (holding=20 good faith may be established in summary judgment context by the = defendant=20 official=92s own affidavit); Gidvani v. Aldrich, 99 = S.W.3d 760,=20 764 (Tex. App.=97Houston [1st Dist.] 2003, no pet.) (holding = district=20 attorney could establish good faith in summary judgment context by = his own=20 affidavit); Hayes v. Patrick, 45 S.W.3d 110, 116 (Tex. = App.=97Fort=20 Worth 2000, pet. denied) (holding police office may establish good = faith=20 in context of summary judgment by his own affidavit); Beatty v. = Charles, 936 S.W.2d 28, 31 (Tex. App.=97San Antonio 1996, no = writ)=20 (holding good faith may be established by expert testimony or the=20 defendant police officer=92s testimony).

⁵ The=20 Alfords also contend Green failed to offer any evidence on what=20 alternative courses of action were available to achieve a = comparable=20 result. More specifically, the Alfords argue that Green = failed to=20 satisfy his burden of establishing his affirmative defense of = official=20 immunity because he did not offer any alternative to his (1) not = wearing=20 glasses, (2) not using the siren or horn, (3) failure to secure = the third=20 lane of traffic, and (4) entering the intersection at 23 miles per = hour. However, Green, as well as other witnesses, denied all = these=20 allegations.

= Moreover, we are not aware of any alternative course of=20 conduct. Green was obliged to physically move his = truck and=20 fellow firefighters to the scene of a potential fire of unknown = magnitude=20 and danger to others=97he had no alternative means of combating = this=20 potential disaster. In driving his truck to the scene of the = alarm,=20 Green testified that he considered the need to get to the scene of = the=20 alarm against the danger of a collision while entering the = intersection=20 against a red traffic light. Green, as well as Lawhorn, = testified=20 that they looked at the westbound lanes of traffic, saw no one = approaching=20 the intersection, and considered it safe to proceed through the=20 intersection. We do not believe it was necessary for Green = to offer=20 hypothetical alternatives to conduct he and other witnesses denied = he=20 engaged = in.