Opinion
No. 04-16-00574-CV
04-05-2017
FAYETTE COUNTY, Appellant v. RYDER INTEGRATED LOGISTICS, INC. and Ryder Integrated Logistics of Texas, LLC, Appellees
MEMORANDUM OPINION
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CI-03779
Honorable Peter A. Sakai, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice AFFIRMED
This is an interlocutory appeal from an order denying Fayette County's motion for summary judgment based on the affirmative defense of official immunity. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(5) (West Supp. 2016). Because Fayette County failed to satisfy its summary judgment burden to conclusively prove the good faith element of official immunity, we affirm the trial court's order.
BACKGROUND
This case involves the fatal collision of two eighteen-wheeled commercial trucks on IH-10 in Fayette County, Texas. At around 3:00 a.m. on July 17, 2009, Fayette County Sheriff's Deputy, Randy Thumann, was traveling eastbound on IH-10 when he noticed an eighteen-wheeled truck driving ahead of him with an unlit clearance light. Thumann decided to stop the truck for the infraction and activated the emergency lights on the patrol car. The driver of the truck, Ralph Molina, responded by maneuvering the truck completely onto the paved shoulder of the road. Thumann then positioned his patrol car behind Molina's truck, which began rolling backwards toward the patrol car. To avoid being hit by Molina's truck, Thumann reversed the patrol car for a few seconds; however, Thumann soon pulled the patrol car forward to the right of Molina's truck onto a grassy area alongside the paved shoulder. While in the grassy area, Thumann drove past Molina's truck, made a u-turn, and positioned the patrol car so it was facing westbound in the direction of oncoming traffic. Seconds later, a Ryder Integrated Logistics, Inc. and Ryder Integrated Logistics, LLC truck that was traveling eastbound on IH-10 clipped the rear left side of Molina's truck. The Ryder truck overturned and caught fire. The driver of the Ryder truck, Roberto Solis Sr., did not survive the fire. The patrol car was equipped with a dashboard video camera that recorded these events.
After being sued by Molina, Ryder filed a third-party petition against Fayette County. Ryder alleged that Solis was blinded by the patrol car's headlights or spotlight causing him to clip the rear of Molina's truck. Fayette County filed a plea to the jurisdiction based on governmental immunity, which the trial court granted. Ryder appealed the order granting the plea to the jurisdiction to this court. We affirmed the trial court's order granting the plea to the jurisdiction; however, the Texas Supreme Court reversed our judgment and remanded the case to the trial court for further proceedings. Ryder Integrated Logistics, Inc., v. Fayette Cnty., 414 S.W.3d 864 (Tex. App.—San Antonio 2013), rev'd, 453 S.W.3d 922 (Tex. 2015).
On remand, Fayette County moved for summary judgment based on the affirmative defense of derived official immunity. In its summary judgment motion, Fayette County argued it was entitled to derived official immunity because at all times Thumann was (1) acting in the performance of his discretionary duties; (2) acting within the course and scope of his authority; and (3) acting in good faith. Ryder filed a response, arguing that Fayette County was not entitled to summary judgment based on derived official immunity. Ryder maintained that Fayette County failed to conclusively prove that Thumann acted in good faith. Ryder further maintained that even if Fayette County did conclusively prove that Thumann acted in good faith, no reasonable officer could have thought that the circumstances surrounding the stop of Molina's truck justified Thumann's actions.
The trial court denied Fayette County's summary judgment motion. Fayette County appealed.
SUMMARY JUDGMENT AND OFFICIAL IMMUNITY
In reviewing a trial court's ruling on a traditional summary judgment motion, we indulge every reasonable inference in favor of the nonmovant, take all evidence favorable to the nonmovant as true, and resolve any doubts in favor of the nonmovant. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
A governmental employee is entitled to official immunity if he is: (1) performing a discretionary duty; (2) within the scope of his authority; and (3) acting in good faith. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). When official immunity shields a governmental employee from liability, sovereign immunity shields the governmental employer from vicarious liability. Texas Dep't of Pub. Safety v. Bonilla, 481 S.W.3d 640, 642 (Tex. 2015). To obtain summary judgment on the affirmative defense of official immunity, the burden is on the defendant to conclusively prove each element of the defense. Clark, 38 S.W.3d at 580; City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994).
Generally, to determine whether a public official acted in good faith, courts examine whether a reasonably prudent public 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 v. Champion Builders, Inc., 144 S.W.3d 417, 426 (Tex. 2004). In situations involving high-speed chases or emergency response driving by law enforcement, courts employ a particularized need/risk analysis when evaluating good faith. Green v. Alford, 274 S.W.3d 5, 15 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). This particularized need/risk analysis was "crafted in an attempt to tailor a test that would better weigh the risks that high-speed chases and responses pose to the general public." Telthorster v. Tennell, 92 S.W.3d 457, 464 (Tex. 2002).
Courts measure good faith against a standard of objective reasonableness, without regard to the officer's subjective state of mind. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). Subjective pronouncements of good faith by an officer or by an expert are insufficient as a matter of law to meet the movant's burden of showing good faith. Harless v. Niles, 100 S.W.3d 390, 398 (Tex. App.—San Antonio 2002, no pet.). Good faith depends on how a reasonably prudent officer could have assessed both the "need" for an officer to respond and the "risks" of the officer's course of action, based on the officer's perception of the facts at the time of the event. Wadewitz, 951 S.W.2d at 466; Harless, 100 S.W.3d at 398.
The "need" component of the good faith test refers to the urgency of the circumstances requiring police intervention. Wadewitz, 951 S.W.2d at 466; Harless, 100 S.W.3d at 398. Need is determined by factors such as the seriousness of the crime to which the officer responds, whether the officer's immediate presence is necessary to prevent injury or loss of life or to apprehend a suspect, and what alternative courses of action, if any, are available to achieve a comparable result. Wadewitz, 951 S.W.2d at 466; Harless, 100 S.W.3d at 398. The "risk" component of the good faith test refers to the countervailing public safety concerns. Wadewitz, 951 S.W.2d at 466; Harless, 100 S.W.3d at 398. Risk is determined by factors such as the nature and severity of harm that the officer's actions could cause, the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent officer. Wadewitz, 951 S.W.2d at 466; Harless, 100 S.W.3d at 398.
Depending on the facts of the case, an expert providing testimony on good faith may be required to provide a continuing list of the "need" and "risk" factors because police pursuits and emergency responses may involve rapidly changing circumstances. City of Pasadena v. Belle, 297 S.W.3d 525, 531 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Furthermore, an expert witness's conclusory statement that a reasonable officer could or could not have taken some action does not establish good faith at the summary judgment stage. Wadewitz, 951 S.W.2d at 466.
If the defendant presents sufficient proof to meet its initial summary judgment burden on the element of good faith, the plaintiff must then controvert the defendant's proof with a showing elevated from that usually required of nonmovants in summary judgment proceedings. Chambers, 883 S.W.2d at 656; Harless, 100 S.W.3d at 399. The plaintiff must do more than show that a reasonably prudent officer could have acted differently; the plaintiff must show that no reasonable person in the officer's position could have thought the facts were such that they justified his actions. Chambers, 883 S.W.2d at 657; Harless, 100 S.W.3d at 399.
DISCUSSION
In the current appeal, the controversy centers on the good faith element of official immunity. Fayette County contends that the trial court erred in denying its summary judgment motion because it conclusively proved good faith. Ryder counters that the trial court properly denied the summary judgment motion because Fayette County failed to conclusively prove good faith. Additionally, Ryder argues that even if Fayette County did conclusively prove good faith, it presented controverting evidence showing that no reasonable person in Thumann's position could have thought the facts were such that they justified his actions.
In their briefing, the parties dispute (1) whether the emergency lights on the top of Thumann's patrol car were continuously activated, and (2) whether Thumann shined the spotlight in the direction of oncoming traffic. Fayette County points to Thumann's deposition testimony in which he stated that the emergency lights on the patrol car were continuously activated from the time he effectuated the stop until after the collision, and that the spotlight was not pointed in the direction of oncoming traffic but at the ground. On the other hand, Ryder points to the video which it contends shows that Thumann turned off the patrol car's flashing emergency lights at about the same time Molina's truck began rolling backwards and did not reactivate them until after the collision. Ryder further contends that the video shows that Thumann swung the illuminated spotlight in the direction of oncoming traffic and this action blinded or distracted Solis and caused him to clip Molina's truck. We conclude the summary judgment evidence raises fact issues on these matters. Therefore, for purposes of reviewing the trial court's summary judgment ruling, we take as true Ryder's assertions that the emergency lights on the top of the patrol car were deactivated as Thumann was making the u-turn and repositioning the patrol car and that Thumann shined the spotlight and the takedown lights in the direction of oncoming traffic. See Dorsett, 164 S.W.3d 661.
Fayette County also contends that Ryder judicially admitted that the spotlight played no role in the collision in its briefing in the previous appeal. We disagree. The statement in Ryder's previous briefing was based on the evidence submitted in support of the jurisdictional plea. Therefore, the statement is not sufficiently deliberate, clear, and unequivocal for us to accept as true and binding on Ryder in this summary judgment appeal. See Texas Processed Plastics, Inc. v. Gray Enter., 592 S.W.2d 412, 415-16 (Tex. App.—Tyler 1979, no writ) (rejecting the argument that a statement in the appellant's brief was a judicial admission).
According to the summary judgment evidence, takedown lights are bright, white lights located on the top of the patrol car.
To support its argument that it conclusively proved good faith, Fayette County relies on the video from the dashboard camera of the patrol car, Thumann's deposition testimony, and the affidavit of its expert, Albert Ortiz. The video shows Thumann effectuating the stop, Molina's truck rolling backwards, Thumann backing up the patrol car briefly, Thumann pulling the patrol car forward to the right of Molina's truck, Thumann making a u-turn in front of Molina's truck, and Thumann driving beside Molina's truck as it is struck by the Ryder truck. The video further shows that Thumann turned on the patrol car's spotlight shortly after he had completed the u-turn and immediately before the collision. The video may also indicate that the flashing emergency lights on the top of the patrol car were not activated while Thumann was making the u-turn and repositioning the patrol car.
Ryder argues that we should not consider Ortiz's affidavit because Fayette County withdrew Ortiz's affidavit from the summary judgment evidence. However, the appellate record does not show that Ortiz's affidavit was withdrawn from the summary judgment evidence. We, therefore, consider Ortiz's affidavit in our analysis.
In his deposition testimony, Thumann testified that when Molina's truck started rolling backwards he chose to move out of the way so the patrol car would not be struck or pushed into oncoming traffic. Thumann said his intention was to reposition the patrol car behind Molina's truck to maintain a tactical advantage. Thumann listed all of the lights on his patrol car that were illuminated while he was in the grassy area: the light bar or the emergency lights on the top of the patrol car, the headlights, the yellow "running lights" next to the headlights, the spotlight, and the "overhead floods" or takedown lights. Thumann explained that the takedown lights, which were located on the top of the patrol car, were bright, white lights that illuminate the area immediately in front of the patrol car. Thumann further explained that takedown lights are designed to shine into the back window of a vehicle that has been stopped.
Thumann testified that after he made the u-turn and while he was alongside Molina's truck, he turned on his spotlight and used it to illuminate the truck's cab. Thumann said that when he first turned on the spotlight it was shining towards the ground; however, Thumann also said that when he first turned on the spotlight it was shining towards oncoming traffic. Thumann further testified that at the same moment he turned on the spotlight, the headlights of the Ryder truck were heading toward the area, and that the illuminated spotlight could have distracted the driver of the Ryder truck.
Next, Fayette County's expert, Ortiz, testified in his affidavit that "any officer in the same or similar circumstances as Deputy Thumann could reasonably believe the emergency equipment on his patrol vehicle was adequate to provide the protection needed to make a safe traffic stop and could have acted in the same or similar manner as Deputy Thumann in detaining the suspect." Ortiz went on to state that "[t]he rig rolling backwards toward [Thumann] created an unforeseeable and extremely dangerous situation" "which required split-second decisions by [] Thumann in order to avoid death and/or serious bodily injury." Ortiz considered and ruled out two alternatives to making a u-turn and repositioning the patrol car in the grassy area. First, Ortiz stated that when Molina's truck started to roll backwards Thumann could have driven down the highway, found another place to turn around, and returned to the scene to reposition the patrol car behind Molina's truck. However, Ortiz ruled out this alternative because he opined that the presence of the patrol car with its emergency lights and equipment was safer than leaving Molina's truck alone on the shoulder of the highway with no way to warn oncoming traffic of its presence. Second, Ortiz indicated that Thumann could have continued backing up on the shoulder of the road until Molina's truck stopped. However, Ortiz ruled out this option as unsafe because it required Thumann to keep an eye on both Molina's truck and oncoming traffic, which was traveling at high speeds. At the end of his affidavit, Ortiz concluded that "[a]ny reasonably prudent officer could have assessed the need for [] Thumann to take the action of driving his patrol car to the right" of Molina's truck "as well as the risk of [] Thumann's actions based on his perception of the facts at the time of the event." Ortiz further concluded that a reasonably prudent officer could have "taken the same course of action as [] Thumann."
Ortiz also noted in his affidavit that "[v]ehicles routinely travel in opposite directions from each other, on two[-]lane roads, within a few feet from each other, at night, with their headlights on, without blinding each other." Nevertheless, Ortiz never mentioned, much less tried to justify, Thumann's use of the takedown lights or the spotlight while he was repositioning the patrol car. Nor did Ortiz mention or try to justify Thumann's failure to use the emergency lights as he repositioned the patrol car.
In its appellate brief, Fayette County argues that it established Thumann's good faith whether this case is analyzed under the particularized need/risk test or under the general good faith test—whether the officer could have believed that his conduct was justified based on the information he possessed. We disagree. None of the summary judgment evidence evaluates the degree, likelihood, and obviousness of the risks associated with illuminating the patrol car's takedown lights and spotlight in the direction of oncoming traffic. Nor does the summary judgment evidence evaluate the degree, likelihood, and obviousness of the risks associated with repositioning the patrol car on the side of the highway without activating its flashing emergency lights. See Juneman v. Harris Cnty., 84 S.W.3d 689, 694 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (recognizing that when a plaintiff alleges and presents evidence that an officer did not take a certain action, the need and risk analysis must address the failure to take the action, even though the officer claims he did take the action). Additionally, none of the summary judgment evidence addresses whether a reasonable person in Thumann's position could have believed that illuminating the patrol car's takedown lights and spotlight in the direction of oncoming traffic was justified based on the information Thumann possessed. Nor does the summary judgment evidence address whether a reasonable person in Thumann's position could have believed that Thumann's repositioning the patrol car on the side of the highway without activating its emergency lights was justified based on the information Thumann possessed.
We conclude that Fayette County failed to conclusively prove the good faith element of its official immunity claim. This is true under either the particularized need/risk analysis or the analysis addressing whether the officer could have believed that his conduct was justified based on the information he possessed. Because Fayette County failed to conclusively prove that Thumann acted in good faith, it was not entitled to summary judgment based on derived official immunity. Having determined that Fayette County did not conclusively prove good faith, we need not consider whether Ryder submitted controverting evidence showing no reasonable person in Thumann's position could have thought the facts were such that they justified his actions.
CONCLUSION
We conclude the trial court did not err in denying Fayette Count's summary judgment motion. The trial court's order denying Fayette County's summary judgment motion is therefore affirmed.
Karen Angelini, Justice