Death of third party in police chase of suspect: Governmental defendants will typically assert official and governmental immunity in suit brought by survivors.
Under the doctrine of governmental immunity, political subdivisions of the State, including municipalities, cannot be held liable for the actions of their employees unless a constitutional provision or statute waives such immunity. See, e.g., City of Houston v. Williams, No. 09-0770, 2011 WL 923980, at *3 (Tex. Mar. 18, 2011); City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994). The Texas Tort Claims Act waives governmental immunity in certain limited circumstances. See Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 342–43 (Tex. 1998). Section 101.021 of the Act provides:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas Law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
Tex. Civ. Prac. & Rem. Code Ann. § 101.021. The Act also provides for exceptions to the waiver of immunity. See id. §§ 101.051–.067 (West 2011).
Because the Act provides that a governmental unit may only be liable when “the [negligent] employee would be personally liable to the claimant,” id. § 101.021(1)(B), whether the employee is entitled to official immunity may also affect whether the Act’s limited waiver of governmental immunity applies. See DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex. 1995). “If the employee is protected from liability by official immunity, the employee is not personally liable to the claimant and the government retains its sovereign immunity under subsection 1.” Id. at 653 (citing K.D.F. v. Rex, 878 S.W.2d 589, 597 (Tex. 1994), and City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex. 1993)). “A governmental employee is entitled to official immunity: (1) for the performance of discretionary duties; (2) within the scope of the employee’s authority; (3) provided the employee acts in good faith.” Clark, 38 S.W.3d at 580.
Because the parties agree that [Defendant-Officer] was performing a discretionary duty within the scope of his authority as a police officer, the question we must determine is whether the [Surivors-Plaintiffs], in responding to the plea to the jurisdiction, raised a fact issue on the element of good faith. See Miranda, 133 S.W.3d at 227–28 (“[W]hen the facts underlying the merits and subject matter jurisdiction are intertwined, [the plaintiff must] show that there is a disputed material fact regarding the jurisdictional issue.”). In order to establish good faith as a matter of law, and to therefore be entitled to an official immunity defense, a police officer must prove that a reasonably prudent officer, under the same or similar circumstances, could have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm to the public in continuing the pursuit. Clark, 38 S.W.3d at 581; Junemann, 84 S.W.3d at 693–94. The evidence is not required to establish that it would have been unreasonable to stop the pursuit or that all reasonably prudent officers would have continued the pursuit. Clark, 38 S.W.3d at 581. But it must demonstrate that a reasonably prudent officer might have believed that it was prudent to continue the pursuit. Id.
To conclusively prove good faith in the police-pursuit context, an officer must substantiate his determination with facts showing that he sufficiently assessed both the need and risks of the pursuit. Id. “Need” refers to the urgency of the circumstances requiring the emergency response and requires the officer to assess the need to apprehend the suspect immediately. Id. at 581–82, 584–85. The need aspect is measured by factors such as the seriousness of the emergency to which the public official is responding, whether the official’s immediate presence is necessary to prevent injury or loss of life, and what alternative courses of action, if any, are available to achieve a comparable result. Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997). The “risk” aspect refers to the countervailing public safety concerns, including the nature and severity of harm his actions could cause, including possible injuries to bystanders, the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent official. Id. To controvert proof of good faith, it is not enough for the nonmovant to show that a reasonably prudent officer could have decided to discontinue or to not initiate the pursuit. Clark, 38 S.W.3d at 581. The nonmovant must show that no reasonable person in the officer’s position could have thought that the facts justified the officer’s actions. Id.; City of Lancaster v. Chambers, 883 S.W.2d 650, 657 (Tex. 1994).
SOURCE: Houston Court of Appeals - 01-10-00973-CV - 8/18/11
We judge an officer’s good faith on the basis of what he perceived to be the facts at the time of his response. Johnson, 142 S.W.3d at 596; see also Harris Cnty. v. Ochoa, 881 S.W.2d 884, 888–89 (Tex. App.—Houston [14th Dist.] 1994, writ denied). Evidence to controvert good faith must do more than merely show that a reasonably prudent officer could have reached a different decision. See Chambers, 883 S.W.2d at 657; Telthorster v. Tennell, 92 S.W.3d 457, 465 (Tex. 2002). To controvert MVPD’s evidence of good faith, the [Surivors-Plaintiffs]] were required to show that no reasonably prudent officer could have thought that the facts justified [Defendant-Officer]’s actions. See Clark, 38 S.W.3d 581. An officer is not required to consider every conceivable alternative course of conduct. See id. at 584. [Defendant-Officer]’s affidavit establishes that he considered alternative courses of action, including allowing Shipp to escape, and that the facts, as known to him, demonstrated a need to immediately apprehend Shipp. Although Greenstone’s affidavit suggests a possible alternative course of action, it is insufficient to controvert MVPD’s evidence of good faith. See id. at 581.
Greenstone’s affidavit and the other evidence proffered by the [Surivors-Plaintiffs]] is insufficient to raise a fact question on the issue of whether [Defendant-Officer] acted in good faith in initiating and continuing his pursuit of Shipp. See id. at 587. Indulging every reasonable inference in favor of the [Surivors-Plaintiffs]], we conclude that their evidence is insufficient to controvert MVPD’s proof on the element of good faith. See Miranda, 227–28. Accordingly we hold that the trial court erred in denying the plea to the jurisdiction, and we sustain MVPD’s sole issue. Because we hold that the trial court erred in denying MVPD’s plea to the jurisdiction on this basis, we need not address MVPD’s other arguments about the applicability of exceptions under the Texas Tort Claims Act.
We reverse the order denying MVPD’s plea to the jurisdiction, and we render judgment dismissing the [Surivors-Plaintiffs]]’ claims against MVPD for want of jurisdiction.
SOURCE: Houston Court of Appeals - 01-10-00973-CV - 8/18/11