Official immunity and governmental immunity in wrongful death lawsuit following fatal crash in police chase

THE DEFENSES OF OFFICIAL IMMUNITY and GOVERNMENTAL IMMUNITY


Death of third party in police chase of suspect: Governmental defendants will typically assert official and governmental immunity in suit brought by survivors.


GOVERNMENTAL IMMUNITY 

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

What is Judicial Immunity?

THE JUDICIAL IMMUNITY DEFENSE BELONGS TO JUDGES
 
The immunity defense that judicial offers may invoke when made defendants in a civil suit - similar to the official-immunity defense applicable to government agents generally -  must not  be confused with judicial proceedings privilege, which is sometimes also referred as "immunity" and provides a defense in suits complaining of conduct or communications made by others in the course of a court proceeding.


JUDICIAL IMMUNITY DEFENSE

Judges acting in their official judicial capacity have immunity from liability and suit [Fn3] for judicial acts performed within the scope of their jurisdiction. Twilligear v. Carrell, 148 S.W.3d 502, 504 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (citing Dallas Cnty v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002)).

Fn3: Mireles v. Waco, 502 U.S. 9, 11 (1991).

This immunity extends to actions that are taken in error, maliciously, and even in excess of the judge‘s authority. Id. (citing Stump v. Sparkman, 435 U.S. 349, 356–57 (1978)). Immunity is overcome only for actions that are: (1) nonjudicial, i.e., not taken in the judge‘s official capacity; or (2) taken in the complete absence of all jurisdiction. Id. (citing Mireles v. Waco, 502 U.S. 9, 11–12 (1991)).

Whether an act is judicial or nonjudicial for this purpose is determined by the nature of the act — whether it is a function normally performed by a judge and to the expectations of the parties — as contrasted from other administrative, legislative, orexecutive acts that simply happen to be done by judges. Mireles, 502 U.S. at 11–12; Forrester v. White, 484 U.S. 219, 227 (1988); Twilligear, 148 S.W.3d at 504-05.

Judicial acts include those performed by judges in adjudicating, or otherwise exercising their judicial authority over, proceedings pending in their courts. Twilligear, 148 S.W.3d at 505.

Conversely, nonjudicial acts include other tasks, even though essential to the functioning of courts and required by law to be performed by a judge, such as: (1) selecting jurors for a county‘s courts; (2) promulgating and enforcing a code of conduct for attorneys; and (3) making personnel decisions regarding court employees and officers. Id. (citing Forrester, 484 U.S. at 228–31).

SOURCE: Houston Court of Appeals - 14-10-00900-CV - 7/26/11

Official Immunity Defense [affirmative defense invoked by governmental defendants]

OFFICIAL IMMUNITY OF PUBLIC OFFICIALS, OFFERS, GOVERNMENT EMPLOYEES

The affirmative defense of official immunity "is based on necessity of public officials to act in the public interest with confidence and without the hesitation that could arise from having their judgment continually questioned by extended litigation." Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex. 2004). The underlying policy is that officials should be afforded some leeway to err because "the risk of some error is preferable to intimidation from action at all." Id. at 424 (citing Wood v. Strickland, 420 U.S. 308, 319-21 (1975)). To that end, official immunity shields officials "from being forced to defend their decisions that were reasonable when made, but upon which hindsight has cast a negative light." Telthorster v. Tennell, 92 S.W.3d 457, 461 (Tex. 2002). "Police officers' particular need for [official] immunity is well recognized: 'nowhere else in public service is official immunity more appropriate or necessary than in police work. In their routine work, police officers must be free to make split-second judgments . . . based on their experience and training, without fear of personal liability.'" Id. (quoting Travis v. City of Mesquite, 830 S.W.2d 94, 103 (Tex. 1992) (Cornyn, J., concurring)).

Elements of Official Immunity Defense: What does the Defendant have to establish?

An officer's actions are shielded by official immunity when the following elements are proven: (1) the officer was performing a "discretionary" function or duty, (2) within the scope of his authority, (3) in "good faith." Ballantyne, 144 S.W.3d at 422; Telthorster, 92 S.W.3d at 461; Chambers, 883 S.W.2d at 653. Consequently, to prevail on summary judgment based on Garner's official immunity from liability arising from his collision with Albarran, the City had the burden to conclusively establish that, with respect to Garner's actions from which his liability would arise: (1) Garner was performing a "discretionary" function, (2) within the scope of his authority, (3) in "good faith." See Telthorster, 92 S.W.3d at 461.

What is considered discretionary? 

"Discretionary" functions involve "personal deliberation, decision, and judgment," in contrast to "ministerial" acts, which "require obedience to orders or the performance of a duty to which the actor has no choice." Chambers, 883 S.W.2d at 654; see Commissioner of the Gen. Land Office v. Smith, 5 Tex. 471, 479 (1849) ("where the act to be done involves the exercise of discretion or judgment in determining whether the duty exists, it is not to be deemed merely ministerial").

An act is also said to be ministerial if "the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment." Chambers, 883 S.W.2d at 654 (quoting Rains v. Simpson, 50 Tex. 495, 501 (1878)). In determining whether a government employee's action is "discretionary" versus "ministerial," the proper focus is "on whether the officer is performing a discretionary function, not on whether the officer has discretion to do an allegedly wrongful act while discharging that function." Id. at 653 (emphases added).

Texas courts have recognized that a police officer's operation of a motor vehicle may be deemed a discretionary function in certain situations. These situations include an officer's deciding to undertake and conducting of a high-speed pursuit of a suspect, see Chambers, 883 S.W.2d at 655, and an officer's decision to violate traffic laws in order to quickly reach a scene of suspected criminal activity and assist another officer there, see Harless v. Niles, 100 S.W.3d 390, 398 (Tex. App.--San Antonio 2002, no pet.). See also City of San Angelo Fire Dep't v. Hudson, 179 S.W.3d 695, 704 (Tex. App.--Austin 2005, no pet.) (manner of firefighters' driving in response to emergency call was discretionary function as matter of law); City of Houston v. Flaniken, 108 S.W.3d 555, 557 (Tex. App.--Houston [14th Dist.] 2003, no pet.) (manner of operating ambulance in response to emergency situation was discretionary function as matter of law). Although these decisions sometimes speak in apparent circularities--e.g., a police officer performs a "discretionary" function when responding to an "emergency" because responding to an "emergency" entails discretion and judgment--their underlying principle seems to be that when a police officer is performing certain law enforcement functions involving discretion and judgment (e.g, pursuit and detention of suspects), it follows that this discretion and judgment can extend to whether and how the officer utilizes a motor vehicle in performing these functions. See Chambers, 883 S.W.2d at 654; Harless, 100 S.W.3d at 397-98; see also Hudson, 179 S.W.3d at 704; Flaniken, 108 S.W.3d at 557.

In Chambers, for example, an officer's high-speed pursuit of a suspect who ran a red light was held to be a discretionary function because the officer had to elect whether to undertake pursuit, and "[b]eyond the initial decision to engage in the chase, a high speed pursuit involves the officer's discretion on a number of levels, including, which route should be followed, at what speed, should back-up be called for, and how closely should the fleeing vehicle be pursued." 883 S.W.2d at 655. In Harless, officers proceeding to the scene of "suspicious activity" to assist a fellow officer similarly had discretion to determine, in the first instance, whether to respond to a report of ongoing criminal activity. 100 S.W.3d at 398. These circumstances required officers to respond using personal deliberation or exercise professional expertise, decision, or judgment. See id. at 397.

SOURCE: Austin Court of Appeals 03-10-00328-CV - 6/23/11