CLARK v. UNIVERSITY OF HOUSTON

Reset A A Font size: Print

Court of Appeals of Texas,Houston (14th Dist.).

Demetria CLARK, Appellant, v. UNIVERSITY OF HOUSTON, Matthew Stewart and Jon Williams, Appellees.

No. 14-96-00005-CV.

Decided: January 30, 1997

Before LEE, AMIDEI and EDELMAN, JJ. Mark A. Hovenkamp, George M. Fleming, Houston, for appellant. Stephen Ronald Keister, Austin, for appellees.

OPINION

This is an appeal from an order granting summary judgment in favor of appellees, University of Houston, Matthew Stewart and Jon Williams (“appellees”).   In one point of error, appellant, Demetria Clark, contends the summary judgment was improperly granted.   We reverse the judgment of the trial court and remand the case for further proceedings.

BACKGROUND AND PROCEDURAL STATUS

On February 9, 1991, Kevin Thomas was involved in a fight at the University Center Circle on the University of Houston campus.   Thomas got into his jeep where University police officers instructed him to stay.   Before the officers could ascertain his identity or license plate number, Thomas fled the scene.

As Thomas left the campus, Sergeant Jon Williams turned his patrol car sideways and tried to stop Thomas's jeep.   Thomas drove his vehicle around the patrol car, and Sergeant Williams attempted to follow.   Sergeant Williams then observed another University of Houston patrol car in position to intercept Thomas's jeep.   Sergeant Williams radioed to the patrol car and told the officer to stop Thomas.   Officer Stewart activated his overhead lights and siren and pursued the jeep.   During the chase, the jeep ran a red light and collided with a car driven by Sean Cory Boyette.   Demetria Clark, appellant in this case, sustained injuries due to the collision.

 Clark sued appellees for negligence, negligence per se and civil rights violations.   Sergeant Williams and Officer Stewart moved for summary judgment based on the affirmative defense of official immunity.   The University of Houston relied on the affirmative defense of sovereign immunity.1  The trial court granted summary judgment in favor of appellees.   In her sole point of error, Clark contends summary judgment was improper because the appellees failed to prove the affirmative defense of official immunity as a matter of law.

STANDARD OF REVIEW

The standard we follow in reviewing a summary judgment is well established.   The movant for summary judgment has the burden to show that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law.   Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985);   Tex.R. Civ. P. 166a(c).   When deciding whether there is a disputed material fact issue precluding summary judgment, we treat evidence favorable to the non-movant as true and we resolve any doubts in his favor.  Id. at 548-49;  Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).   When a defendant moves for summary judgment based on an affirmative defense such as official immunity, he must conclusively establish each element of the defense as a matter of law.  City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994).

 In her sole point of error, Clark contends the trial court erred in granting summary judgment based on official immunity.   Official immunity is a common law defense that protects governmental officers and employees from personal liability.   See id.   Under the doctrine of official immunity, governmental employees are entitled to immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority.  Id. Clark does not dispute that Sergeant Williams and Officer Stewart were acting within the scope of their authority;  this element of official immunity is not at issue.   Additionally, because we hold that appellees did not establish good faith as a matter of law, we need not address Clark's contention that Officer Stewart was performing a ministerial rather than a discretionary task.

ANALYSIS

Good Faith

 When a bystander is injured as a result of a high speed pursuit, a police officer may be entitled to summary judgment if he proves that a reasonably prudent officer, under the same or similar circumstances, could have believed the need to immediately apprehend the suspect outweighed a clear risk of harm to the public in continuing the pursuit.  Id. at 656.   The “could have believed” aspect of this good faith test requires a police officer to show that a reasonably prudent officer might have believed the pursuit should have been continued.  Id. at 656-57.   The officer need not prove that it would have been unreasonable to stop the pursuit;  nor must the officer prove that all reasonably prudent officers would have continued the pursuit.  Id. at 656.

 The Chambers good faith test also established an elevated standard of proof for a nonmovant seeking to defeat a claim of official immunity at summary judgment.2  To controvert a police officer's summary judgment proof on good faith, the plaintiff must do more than show that a reasonably prudent officer could have decided to stop the pursuit;  the plaintiff must show that “no reasonable person in the defendant's position could have thought the facts were such that they justified the defendant's acts.”  Id. If officers of reasonable competence could disagree on this issue, immunity should be recognized.  Id. (citing Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986)).

 Good faith may be established through the testimony of the defendant-officer if the testimony is clear, positive, direct, otherwise credible, free from contradiction and readily controvertible.   See Harris County v. Ochoa, 881 S.W.2d 884, 887 (Tex.App.-Houston [14th Dist.] 1994, writ ref'd.);  Rhodes v. Torres, 901 S.W.2d 794, 798-800 (Tex.App.-Houston [14th Dist.] 1995, no writ.);  Tex.R. Civ. P. 166a(c).   Sergeant Williams's affidavit details the events preceding the accident, including the weather, road and traffic conditions.   He also states, in part:

I believed that at that time of night with the minimal traffic on the street and the nature of the area in which I traveled, diminished the risk from the pursuit itself, while the suspect and the manner in which he operated his vehicle posed a significant risk to the public.   I believed, and in my opinion any reasonably prudent police officer in my position would also have believed, that during the pursuit, the need to stop the suspect vehicle was essential to insure the safety of the public by way of attempting to follow the suspect vehicle.

Officer Stewart's affidavit provides a similar account of the details preceding the accident.   He states that he activated his emergency lights and siren and drove carefully during the pursuit.   He also states, in part:

I acted as a reasonable and prudent police officer in my decision to follow the suspect vehicle ․ I believed, and in my opinion any reasonably prudent police officer in my position would also have believed, that during the pursuit the need to stop the suspect vehicle was essential to insure the safety of the public by way of attempting to follow the suspect vehicle.

The affidavit of University of Houston Assistant Police Chief Frank Cempa provides additional evidence of appellees' objective good faith.   His affidavit states that he is a thirteen year veteran police officer, and he was trained in police pursuit procedures.   He also states, in part:

Having reviewed the facts of this case and [Officer Stewart's and Sergeant Williams's] affidavits, I believe that Sergeant Jon Williams and Matthew Stewart complied with state law and the University of Houston police department policy when they followed Thomas' vehicle on February 9, 1991.   In light of all the facts, I believe that the need to apprehend Mr. Thomas outweighed the risk of harm to the public and that any reasonably prudent officer could have made the decision that the need to apprehend the suspect outweighed the risk of harm to the public in continuing the pursuit.

These affidavits establish that any reasonably prudent officer in Williams's or Stewart's positions could have believed the need to stop Thomas outweighed the risk of the pursuit.   Given the details, we find these affidavits are sufficient to satisfy the objective good faith test set forth in Chambers.

 Nevertheless, Clark claims her summary judgment proof contradicted the officers' claim of good faith by showing that no reasonable person in the officers' positions could have thought the facts were such that they justified the officers' actions.   See Chambers, 883 S.W.2d at 656.   A plaintiff may rebut a showing of good faith by offering objective proof from a qualified witness who, after reviewing the facts, concludes that no reasonable person in the defendant's position would have acted as the defendant acted.  Texas Dep't. of Pub. Safety v. Tanner, 928 S.W.2d 731, 736 (Tex.App.-San Antonio 1996, n.w.h.).   However, an expert's affidavit that fails to demonstrate an objective approach or state a basis upon which his or her conclusions are reached is insufficient summary judgment proof.   See e.g., Cameron County v. Alvarado, 900 S.W.2d 874, 880-81 (Tex.App.-Corpus Christi 1995, writ dism'd w.o.j.);   see also State v. McGeorge, 925 S.W.2d 105, 109 (Tex.App.-Houston [14th Dist.] 1996, n.w.h.).

In her response to appellees' motion for summary judgment, Clark attached the affidavit of Richard Turner.   Turner's affidavit indicates that (1) he is the founder, chairman and chief executive officer of the National Academy for Professional Driving, Inc.;  (2) he taught police pursuit procedures at the Academy since 1976;  (3) he is familiar with the industry standards nationally regarding police pursuit polices, procedures and training;  and (4) he has authored numerous pursuit policies and texts for various law enforcement departments.   Thus, Turner's affidavit establishes him as well qualified to state a conclusion in this case.

Turner's affidavit also indicates the basis upon which he reached his conclusion.   Turner states that he (1) reviewed the facts surrounding the pursuit of Kevin Wayne Thomas;  (2) reviewed the depositions taken in the case;  (3) reviewed the polices and procedures of the University of Houston Police Department;  and (4) visited the scene of the pursuit.   After analyzing this information, Turner concluded:

It is my professional opinion the actions of Mr. Matthew Stewart and Sergeant Jon Williams were not acts carried out in good faith.   In my opinion, another reasonably prudent law enforcement officer, under the same or similar circumstances, could not have believed the need to immediately apprehend Mr. Thomas outweighed a clear risk of harm to other members of the public who may be using the highway during the pursuit.

Clearly, Turner utilized an objective approach in analyzing the facts of the present case.   Appellees, however, claim that Turner's use of the term “another officer,” fails to establish that no reasonable person in the defendants' positions could have thought the facts were such that they justified the defendants' actions.   Appellees argue that, at most, the language used establishes that “officers of reasonable competence could disagree on this issue, [and therefore] immunity should be recognized.”   Conversely, Clark insists the words “another officer” refer to any other officer, except Sergeant Williams and Officer Stewart.   Clark therefore contends Turner's affidavit controverts appellees' summary judgment proof of good faith.

Both parties provide a reasonable interpretation of Turner's affidavit;  we agree it may be read either way.   When doubts arise, however, they must be resolved in favor of the nonmovant.  Nixon, 690 S.W.2d at 548-49.   Moreover, every reasonable inference must be indulged in her favor.  Id. Given his specific testimony already noted, and his additional testimony that (1) Sergeant Williams and Officer Stewart violated the University's policies regarding pursuit;  (2) their actions failed to meet industry standards;  and (3) the need to protect the public far outweighed the need to immediately apprehend Thomas, we believe it is reasonable to infer the substance of Turner's testimony is that no reasonable person in the officers' positions could have believed the facts were such that they justified the defendants' actions.3  We therefore find the affidavit sufficient to raise a fact issue concerning the officers' good faith.4  Because Clark has presented controverting summary judgment proof, the trial court erred in granting summary judgment in favor of Sergeant Williams and Officer Stewart.   Additionally, because the University based its immunity on that of the officers, the trial court erred in granting summary judgment in favor of the University of Houston.

The judgment of the trial court is reversed, and the case is remanded for further proceedings.

I would affirm the judgment of the trial court in this case because I do not believe appellant met the elevated standard of proof set forth in City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex.1994).   See State v. McGeorge, 925 S.W.2d 105, 108-10 (Tex.App.-Houston [14th Dist.] 1996, no writ).

FOOTNOTES

1.   If an employee is protected from liability under the doctrine of official immunity, the governmental entity's sovereign immunity remains in tact.  City of Houston v. Newsom, 858 S.W.2d 14, 19 (Tex.App.-Houston [14th Dist.] 1993, no writ.) (citing City of Houston v. Kilburn, 849 S.W.2d 810-11 (Tex.1993)).

2.   We note, however, that Chambers does not nullify the well established rules which govern summary judgment review of police pursuit cases.   In fact, Chambers indicates that the elevated standard of proof does not alter the standard of review in summary judgment cases.   See Chambers, 883 S.W.2d at 657 (stating that summary judgments will be more difficult to obtain in Texas courts than in federal courts because of the differences in summary judgment practices);  see also Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex.1994) (where the Court reaffirmed the application of summary judgment rules in official immunity cases).   We must therefore accept as true all evidence favorable to the non-movant and must apply all reasonable inferences and resolve all doubts in her favor.  Nixon, 690 S.W.2d at 548-49.

3.   Moreover, we do not read Chambers to suggest that certain “magic words” are required to create a fact issue at the summary judgment stage.   As noted above, in order to controvert a police officer's summary judgment proof of good faith, a plaintiff must produce credible, detailed summary judgment evidence that no reasonable officer would have acted as the defendant acted.   See Chambers, 883 S.W.2d at 657.   In this case, we believe appellant's summary judgment proof satisfies the aforementioned criteria.   See Petta v. Rivera, 923 S.W.2d 678 (Tex.App.-Corpus Christi 1996, writ den.) (finding summary judgment improper where the plaintiff-appellant raised a fact issue concerning the defendant-officer's claim of good faith);  Victory v. Bills, 897 S.W.2d 506, 509-10 (Tex.App.-El Paso 1995, no writ.) (holding that summary judgment was properly denied because parties presented affidavits which squarely opposed each other).

4.   Although we are sensitive to the policy of granting immunity to police officers for actions taken in their official capacity, where, as here, there exists a disputed fact issue essential to the affirmative defense of immunity, summary judgment is not the appropriate forum to resolve the factual conflict.   See Chambers, 883 S.W.2d at 657 (citing Walton v. City of Southfield, 995 F.2d 1331, 1336 (6th Cir.1993)).

LEE, Justice.

Copied to clipboard