Opinion issued April 2,=20
2009
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-08-00471-CV
CITY =
OF RICHMOND,=20
Appellant
V.
DELIA =
GARCIA=20
RODRIGUEZ, Appellee
On =
Appeal from the=20
268th District Court
Fort =
Bend County,=20
Texas
Trial =
Court Cause=20
No. 06-CV-152099
MEMORANDUM=20
OPINION
<=
/SPAN>This suit arises from injuries sustained by =
appellee, Delia=20
Garcia Rodriguez, as a result of a collision with a police car. =
Appellant,=20
the City of Richmond, appeals the trial court=E2=80=99s denial of =
its plea to the=20
jurisdiction in favor of Rodriguez. In two issues on appeal, the =
City=20
argues that the trial court erred in denying its plea to the =
jurisdiction=20
because the City=E2=80=99s immunity was established as a matter of =
law, and even=20
if the City=E2=80=99s immunity was waived, Rodriguez has not shown =
recklessness on=20
the part of the officer, as required to establish jurisdiction =
over=20
Rodriguez=E2=80=99s negligence claims against the City. =
<=
/SPAN>We=20
reverse and render.
Background
<=
/SPAN>On=20
the night of September 20, 2004, Sergeant W. Elliot of the City of =
Richmond Police Department was looking for traffic violators while =
sitting=20
in his marked patrol car in a parking lot on Austin Street in =
Richmond,=20
Texas. Sergeant Elliot observed a motorcycle with a non-functional =
front=20
headlight traveling east on Austin Street and exceeding the posted =
30=20
miles-per-hour speed limit. Sergeant Elliot drove his patrol car =
out of=20
the parking lot, activated his emergency lights, and accelerated =
toward=20
the motorcycle to initiate a traffic stop. While he followed the=20
motorcycle on Austin street, Sergeant Elliot approached South 4th =
Street=20
and observed a vehicle, driven by Rodriguez, approaching the South =
4th=20
Street=E2=80=99s stop sign. Sergeant Elliot realized that any =
traffic at this=20
intersection would have a stop sign and that he did not. As he =
proceeded=20
through the intersection, Sergeant Elliott noticed that =
Rodriguez=E2=80=99s=20
vehicle did not stop at the stop sign and that she was entering =
the=20
intersection. Sergeant Elliot attempted to swerve to the left to =
avoid=20
hitting Rodriguez=E2=80=99s vehicle, but his patrol car collided =
with the vehicle.=20
<=
/SPAN>Rodiguez=20
filed suit against the City and Sergeant Elliott ![3DFootnote=20](3D"http://www.1stcoa.courts.state.tx.us/opinions/080471f/footnoteicon=)
for property damage and injuries as a =
result of=20
the accident. The City filed a plea to the jurisdiction that =
included the=20
affidavits of Sergeant Elliott and Lieutenant B. Teague. In its =
plea, the=20
City asserted that it was entitled to governmental immunity =
because=20
Sergeant Elliott had official immunity and had acted in the scope =
of his=20
authority and in good faith. The City also argued that, even if =
the City=E2=80=99s=20
immunity had been waived, Rodgriguez presented no evidence that =
Sergeant=20
Elliott acted recklessly. In her response, Rodriguez asserted that =
Sergeant Elliott=E2=80=99s affidavit did not show that he assessed =
whether he had=20
any available alternatives and therefore he did not show that he =
acted in=20
good faith, as required for immunity. Rodriguez also argued that a =
fact=20
issue was created by her deposition testimony attached to her =
response=20
controverting Sergeant Elliott=E2=80=99s testimony that the =
motorcycle did not=20
have a functioning headlight and that Sergeant Elliott=E2=80=99s =
emergency lights=20
were on at the time of the accident. The trial court denied the =
plea and=20
this appeal ensued.
Sovereign=20
Immunity
<=
/SPAN>As=20
a general rule, a city is immune from suits for money damages. =
See=20
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 =
(Tex.=20
2003). However, a waiver of immunity is provided for in section =
101.021(1)=20
of the Texas Tort Claims Act, which provides as =
follows:
<=
/SPAN>A=20
governmental unit in the state is liable for:
<=
/SPAN>(1) property=20
damage, personal injury, and death proximately caused by the =
wrongful act=20
or omission or the negligence of an employee acting within his =
scope of=20
employment if:
&=
nbsp; (A) the=20
property damage, personal injury, or death arises from the =
operation or=20
use of a motor-driven vehicle or motor-driven equipment;=20
and
&=
nbsp; (B) the=20
employee would be personally liable to the claimant according to =
Texas=20
law. . . .
Tex. Civ.=20
Prac. & Rem. Code Ann. =C2=A7 101.021(1) (Vernon 2005) =
(emphasis=20
added). But =E2=80=9Csovereign immunity shields the governmental =
employer from=20
vicarious liability=E2=80=9D if =E2=80=9Cofficial immunity shields =
a governmental employee=20
from liability.=E2=80=9D Univ. of Houston v. Clark, 38 =
S.W.3d 578, 580=20
(Tex. 2000). =E2=80=9CA governmental employee is entitled to =
official immunity:=20
(1) for the performance of discretionary duties; (2) within the =
scope of=20
the employee=E2=80=99s authority; (3) provided the employee acts =
in good faith.=E2=80=9D=20
Id.
<=
/SPAN>=E2=80=9C[T]o=20
establish good faith in a police pursuit case, an officer must=20
conclusively prove that a reasonably prudent officer in the same =
or=20
similar circumstances could agree that the need to immediately =
apprehend=20
the suspect outweighed the risk of harm to the public in =
continuing the=20
pursuit, taking into account all the Wadewitz =
[need and risk] factors.=E2=80=9D =
Clark, 38 S.W.3d=20
at 583. These factors were summarized in Clark as=20
follows:
<=
/SPAN>The=20
need element refers to the =E2=80=98urgency of the circumstances =
requiring police=20
intervention,=E2=80=99 or =E2=80=98the seriousness of the crime or =
accident to which the=20
officer responds, whether the officer=E2=80=99s immediate presence =
is necessary to=20
prevent injury or loss of life or to apprehend a suspect, and what =
alternative courses of action, if any, are available to achieve a=20
comparable result.=E2=80=99 The risk element of good faith refers =
to =E2=80=98the=20
countervailing public safety concerns,=E2=80=99 or =E2=80=98the =
nature and severity of=20
harm that the officer=E2=80=99s actions could cause (including =
injuries to=20
bystanders as well as the possibility that an accident would =
prevent the=20
officer from reaching the scene of the emergency), the likelihood =
that any=20
harm would occur, and whether any risk of harm would be clear to a =
reasonably prudent officer.=E2=80=99
Id. at 581 (quoting Wadewitz =
v.=20
Montgomery, 951 S.W.2d 464, 467 (Tex. 1997)). =
=E2=80=9CDepending on the=20
circumstances, an officer may not be able to thoroughly analyze =
each need=20
or risk factor, and that this alone should not prevent the officer =
from=20
establishing good faith.=E2=80=9D Id. at 583. =E2=80=9C[T]o =
controvert a police=20
officer=E2=80=99s summary judgment proof on good faith, the =
[respondent] must do=20
more than show that a reasonably prudent officer could have =
decided to=20
stop the pursuit.=E2=80=9D Id. =E2=80=9CThe [respondent] =
must show that no=20
reasonable person in the officer=E2=80=99s position could have =
thought that the=20
facts justified the officer=E2=80=99s acts.=E2=80=9D =
Id.
<=
/SPAN>On=20
appeal, we review the trial court=E2=80=99s rulings on a plea to =
the jurisdiction=20
de novo. Tittizer v. Union Gas Corp., 171 S.W.3d 857, 860 =
(Tex.=20
2005); Tex. Dep=E2=80=99t of Parks & Wildlife v. =
Miranda, 133 S.W.3d=20
217, 228 (Tex. 2004). In determining whether jurisdiction exists, =
=E2=80=9C[w]e=20
construe the pleadings liberally in favor of the plaintiffs and =
look to=20
the pleaders=E2=80=99 intent.=E2=80=9D Miranda, 133 S.W.3d =
at 226. =E2=80=9CHowever, if a=20
plea to the jurisdiction challenges the existence of =
jurisdictional facts,=20
we consider relevant evidence submitted by the parties when =
necessary to=20
resolve the jurisdictional issues raised. . . .=E2=80=9D =
Id. at 227. =E2=80=9CIf=20
the evidence creates a fact question regarding the jurisdictional =
issue,=20
then the trial court cannot grant the plea to the jurisdiction, =
and the=20
fact issue will be resolved by the fact finder.=E2=80=9D =
Id. at 227=E2=80=9328.=20
=E2=80=9CHowever, if the relevant evidence is undisputed or fails =
to raise a fact=20
question on the jurisdictional issue, the trial court rules on the =
plea to=20
the jurisdiction as a matter of law.=E2=80=9D Id. at 228. =
=E2=80=9C[T]his standard=20
generally mirrors that of a summary judgment under Texas Rule of =
Civil=20
Procedure 166a(c).=E2=80=9D Id. Accordingly, =
=E2=80=9C[w]hen reviewing a plea to=20
the jurisdiction in which the pleading requirement has been met =
and=20
evidence has been submitted to support the plea that implicates =
the merits=20
of the case, we take as true all evidence favorable to the =
[respondent].=E2=80=9D=20
Id. =E2=80=9CWe indulge every reasonable inference and =
resolve any doubts=20
in the [respondent=E2=80=99s] favor.=E2=80=9D =
Id.
<=
/SPAN>The=20
parties do not dispute that Sergeant Elliott was performing a=20
discretionary duty and acting within the scope of his authority. =
Thus, we=20
focus on whether Sergeant Elliott showed he acted in good faith as =
a=20
matter of law and if so, whether Rodriguez created a =
jurisdictional fact=20
issue.
<=
/SPAN>Sergeant=20
Elliott submitted an affidavit in which he testified=20
that
<=
/SPAN>6. While=20
parked at the George Family Development Center, I observed a =
motorcycle=20
traveling at a high rate of speed, who was moving east on Austin =
Street,=20
which was from the right hand direction moving in front of me to =
the left.=20
I noticed that the motorcycle=E2=80=99s front light was not =
working. Although I do=20
not recall how fast the motorcycle was traveling, I recall that =
based on=20
the reading from my radar, the motorcyclist was exceeding the =
speed limit,=20
which is 30 miles per hour on Austin Street.
<=
/SPAN>7. I=20
decided to make a traffic stop and followed my usual course of =
action=20
which was activating my front headlights and putting my vehicle in =
gear.=20
After checking the road for additional motorists traveling in =
either lane,=20
I determined the roadway was clear. Thereafter, I made a left hand =
turn=20
out of the George Family Development Center and entered the inside =
lane on=20
Austin Street.
<=
/SPAN>8. Once=20
I entered Austin St., I activated my emergency lights and =
accelerated=20
towards the speeding motorist to make the traffic =
stop.
<=
/SPAN>9. Given=20
the conditions of the road at the time and the presence and number =
of=20
other vehicles traveling on the roadway, I determined it was =
necessary and=20
appropriate to increase my speed and activate my emergency lights =
as I=20
closed the distance between myself and the speeding motorcyclist. =
At the=20
time, given the circumstances, I used my discretion in determining =
whether=20
it was appropriate to activate my audible sirens and decided it =
was not=20
appropriate at the time for a number of reasons.
<=
/SPAN>.=20
. .
<=
/SPAN>11. At=20
that time, I recognized before I initiated my response, that there =
was=20
some risk, as there always is, inherent anytime a police officer =
makes the=20
decision to increase his speed and not activate the audible =
signals while=20
making a traffic stop. Indeed, this case was no exception. I =
recognized=20
the possibility existed that if I increased my speed, my vehicle =
could=20
increase the risk of a collision causing property damage and/or =
injury to=20
another driver, bystander or property owner. I considered each of =
these=20
potential risks before I initiated the pursuit and continually =
reevaluated=20
them up until the time of the accident.
<=
/SPAN>12. In=20
my opinion, considering the fact that the motorcyclist was =
speeding on a=20
two lane road at night, without the use of a functioning front =
light,=20
coupled with my knowledge of Austin St., and the traffic and =
pedestrian=20
conditions, the potential danger posed by my actions were far less =
than=20
the danger posed by the speeding motorist given the danger he =
posed to=20
himself, other motorists and the property around him. =
Additionally, after=20
evaluating the potential risks inherent in my decision not to =
activate the=20
audible signals on my police vehicle, I determined that the safest =
manner=20
to stop the speeding motorcyclist was to activate my visual =
emergency=20
lights to alert him of my presence before activating my audible =
sirens.=20
Indeed, based on my training and experience, it is often better =
under=20
certain circumstances, and this would be one of those =
circumstances, to=20
first activate visual emergency lights before activating audible =
sirens.=20
<=
/SPAN>.=20
. .
<=
/SPAN>14. Additionally,=20
Austin St. is a relatively straight road. Moreover, before =
initiating the=20
pursuit, I ensured there were no cars around me. At the time, I =
did not=20
perceive any risk associated with increasing my speed or not =
activating my=20
audible signals posed to the traffic on Austin St. or any other =
civilians,=20
property owners or drivers close to my location.
<=
/SPAN>.=20
. .
<=
/SPAN>16. From=20
my point of view at the time, I did not engage in conduct I =
believe posed=20
a likelihood of serious injury to anyone or that posed serious =
property=20
damage to any property owners or civilians. Therefore, a =
reasonably=20
prudent police officer, under similar circumstances as those I =
faced,=20
would likely have reached the same decision that I reached based =
upon my=20
perception of the facts at the time. Accordingly, based upon my =
perception=20
of the facts at the time, I believe a reasonably prudent police =
officer=20
would have reached the same conclusion I did, when assessing the =
need for=20
a rapid response and the risk of the course of action I undertook. =
That=20
is, the need to stop a speeding motorcyclist whose front light was =
not=20
functioning and driving at an increased rate of speed without =
activating=20
my audible signals outweighed any risk of potential or perceived =
harm to=20
the public.
<=
/SPAN>On=20
appeal, Rodriguez argues that because Sergeant Elliott=E2=80=99s =
affidavit does=20
not state whether he had any other alternatives to pursuit, he did =
not=20
=E2=80=9Csubstantiate his claim of good faith.=E2=80=9D =
Alternatively, Rodriguez argues=20
that her deposition testimony controverts Sergeant =
Elliott=E2=80=99s assertions=20
that =E2=80=9C(1) the motorcycle in question did not have a =
functioning headlight,=20
and (2) that [Sergeant Elliott=E2=80=99s emergency lights were on =
at the time of=20
the accident.=E2=80=9D
<=
/SPAN>In=20
University of Houston v. Clark, the supreme court held that =
the=20
requirement that the officer consider available alternatives was =
met in=20
Officer Stewart=E2=80=99s case by his testimony that he was unable =
to get close=20
enough to read the fleeing suspect=E2=80=99s license plate. 38 =
S.W.3d at 585. The=20
Clark court stated, =E2=80=9CThe need to immediately =
apprehend a suspect=20
depends, among other things, on whether the suspect could be =
apprehended=20
at a later time, i.e., whether there is an alternative to pursuing =
the=20
suspect that would achieve a comparable result.=E2=80=9D The court =
further stated,=20
=E2=80=9Cofficers should be required to recognize reasonable =
alternatives to=20
pursuit, and to justify their decisions to pursue when those =
alternatives=20
exist by showing that the need to pursue nevertheless outweighed =
the=20
risks. Requiring officers to assess alternatives insures that =
public=20
safety is not =E2=80=98thrown to the winds in the heat of the =
chase.=E2=80=99=E2=80=9D Id.=20
(quoting Travis v. City of Mesquite, 830 S.W.2d 94, 98 =
(Tex.=20
1992)).
<=
/SPAN>By=20
contrast, in Ener v. Thomas,
the supreme court stated, =
=E2=80=9CNowhere in his=20
affidavit does Ener mention facts to show that he assessed whether =
there=20
were any alternatives to pursuit. Ener does not mention the =
viability of=20
identifying the suspect and apprehending him later or any other=20
alternative.=E2=80=9D Id. at 587. The court concluded that =
=E2=80=9CWithout=20
assessing the availability of alternatives, Ener did not have a =
suitable=20
basis for concluding that a reasonable officer in his position =
=E2=80=98could have=20
believed that the need to immediately apprehend the suspect =
outweighed a clear risk of harm to the public in continuing the =
pursuit.=E2=80=99=E2=80=9D=20
Id. (quoting Chambers v. City of Lancaster, 883 =
S.W.2d 650,=20
656 (Tex. 1994)). Therefore, the supreme court agreed with the =
court of=20
appeals that the officer=E2=80=99s affidavit did not substantiate =
his claim of=20
good faith. Id. at 588.
<=
/SPAN>Unlike=20
Ener, Sergeant Elliott=E2=80=99s affidavit properly =
assessed the need and=20
risk factors articulated in Wadewitz and refined in =
Clark.=20
Specifically, Sergeant Elliot testified that he saw a motorcyclist =
driving=20
at a high rate of speed at night without a headlight, posing a =
danger to=20
himself, other motorists, and the property around him, requiring a =
=E2=80=9Crapid=20
response.=E2=80=9D He testified that he determined it was =
necessary and=20
appropriate to accelerate toward the motorcyclist based on the =
conditions=20
of the road and the presence and number of other vehicles =
traveling on the=20
roadway. He further testified that he recognized the possibility =
that if=20
he increased his speed, the risk that his vehicle could cause an =
accident=20
also increased, property damage, or injury to another driver, =
bystander or=20
property owner also increased, and that he considered each of =
these=20
potential risks and continued to re-evaluate each risk up until =
the=20
accident. He considered the alternative of not pursuing the =
speeding=20
motorist and also of activating his audible siren as well as his =
visual=20
emergency lights to alert the speeding motorcyclist of his =
presence. He=20
determined, on the basis of his knowledge of the street, the =
traffic and=20
pedestrian conditions, and the time of day, and after evaluating =
the=20
risks, the potential danger of pursuing the motorist was far less =
than the=20
danger posed by the speeding motorist and himself and that =
=E2=80=9Cthe safest=20
manner to stop the speeding motorcyclist was to activate my visual =
emergency lights.=E2=80=9D He concluded that he did not believe =
that he engaged in=20
conduct that posed a likelihood of serious injury to anyone and =
that a=20
reasonably prudent police officer, under similar circumstances, =
would have=20
reached the same decision that he did. Furthermore, Lieutenant =
Teague=E2=80=99s=20
affidavit supported Sergeant Elliott=E2=80=99s affidavit and did =
not controvert=20
anything about Sergeant Elliott=E2=80=99s =
conduct.
<=
/SPAN>We=20
conclude that Sergeant Elliott=E2=80=99s affidavit took all of the =
Wadewitz=20
factors into account and thus affirmatively established his good =
faith as=20
a matter of law. See Id. at 584=E2=80=9387. The burden thus =
shifted to=20
Rodriguez to show that =E2=80=9Cno reasonable person in the =
officer=E2=80=99s position=20
could have thought that the facts justified the officer=E2=80=99s =
acts.=E2=80=9D=20
Id. at 581. On appeal, Rodriguez does not make any argument =
that an=20
officer in Sergeant Elliott=E2=80=99s position would not have =
thought that the=20
facts justified the officer=E2=80=99s acts. Rather, Rodriguez =
primarily attacks=20
Sergeant Elliott=E2=80=99s affidavit as not establishing good =
faith. Because we=20
have concluded that Sergeant Elliott=E2=80=99s affidavit proves =
good faith as a=20
matter of law, we likewise conclude that Rodriguez has not met her =
burden.
<=
/SPAN>At=20
the end of her brief, Rodriguez argues that Rodriguez=E2=80=99s =
=E2=80=9Cdeposition=20
testimony controverts Officer Elliot=E2=80=99s affidavit =
testimony, and therefore=20
raises fact issues for a jury. More specifically, Plaintiff =
controverts=20
Officer Elliott=E2=80=99s assertions that (1) the motorcycle in =
question did not=20
have a functioning headlight and (2) that Officer =
Elliott=E2=80=99s emergency=20
lights were on at the time of the accident.=E2=80=9D As =
Rodriguez=E2=80=99s argument does=20
not address =
the need=20
and risk factors in Wadewitz, it is insufficient to =
controvert=20
Sergeant Elliott=E2=80=99s proof on good faith. See Clark, =
38 S.W.3d at 587=20
(stating that because plaintiff=E2=80=99s expert=E2=80=99s =
=E2=80=9Ctestimony on good faith is not=20
substantiated with reference to each aspect of the need and risk =
balancing=20
test, it is conclusory and is insufficient to controvert the =
defendant=E2=80=99s=20
proof on good faith=E2=80=9D).
Conclusion
<=
/SPAN>We=20
reverse the trial court=E2=80=99s order denying the City of =
Richmond=E2=80=99s plea to the=20
jurisdiction. We render judgment that the City of =
Richmond=E2=80=99s plea to the=20
jurisdiction is granted and that Rodriguez=E2=80=99s claims are=20
dismissed.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Evelyn=20
V. Keyes
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of Justices Jennings, =
Keyes, and=20
Higley. |