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City of Houston v. Fagan12/2/1999
ly that within one particular chase, the need to arrest the suspect will not diminish as the chase progresses. The police officer has both a duty and a need to recover the stolen vehicle, stop any reckless driving, and arrest the perpetrator. Officer Storemski's affidavit references the need to immediately apprehend the suspect. He specified the crime involved and noted that his dispatcher "stepped up" the call to urgent. This is sufficient.
The risks involved, by contrast, are in constant flux. Weather, traffic patterns, pedestrians, school crossings, time of day, etc., all interact to present a risk to the officer, the suspect, and bystanders. The risk can change from moment to moment. The most critical moment, of course, is the one immediately preceding the accident. Officer Storemski has articulated in great detail the precautions he took immediately before the accident to minimize any harm the pursuit may have caused to other motorists or pedestrians. He stated that his lights were on, that his siren was on, that he came to a complete stop, that he blew the car's horn, and that he visually checked to confirm that traffic had stopped in both directions. Finally, Officer Storemski details what he actually saw before he entered the intersection. This is determinative of what a reasonably prudent officer could have believed as to the propriety of entering the intersection.
Accordingly, the City's affidavits were sufficient to establish that Officer Storemski acted in good faith, because the affidavits address what a reasonably prudent officer could have believed under the same or similar circumstances and are substantiated with reference to each aspect of the Chambers balancing test. Thus, the City has established all the elements of the affirmative defense of official immunity.
To preclude summary judgment, the non-movants mustproduce summary judgment proof showing the existence of an issue of material fact. See Westland Oil Dev. Corp., 637 S.W.2d at 907 (Tex. 1982); Cummings, 799 S.W.2d at 405 (Tex. App.-Houston [14th Dist.] 1990, no writ); Colvin v. Alta Mesa Resources, Inc., 920 S.W.2d 688, 690 (Tex. App.-Houston [1st Dist.] 1996, writ denied); Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 1(Tex. App.-Corpus Christi 1991, writ denied). In deciding whether a fact issue exists, we take all evidence favorable to the non-movant as true and indulge every reasonable inference in the non-movant's favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).
Here, we are presented with a factual dispute as to whether Officer Storemski had his siren on at the time of the accident. His affidavit says the siren was on, but Ms. Fagan's affidavit says it was not. We also have before us the deposition testimony of Sandra Morse, a witness, who testified that she did not hear a siren. This factual dispute is material because Officer Storemski was responding to a priority one call. Houston Police Department procedures require that a response to such a call be with lights and siren. While the department's rules provide for a silent response under some circumstances, the officer is required to notify his dispatcher that he is proceeding silently. Moreover, it is not Officer Storemski's contention that he was running silent. Thus, the issue of whether or not his siren was activated is relevant to whether or not he was acting in full compliance with police regulations.
The City of Houston's Immunity
The third issue in this appeal is whether or not the City of Houston is entitled to immunity. The City's immunity, however, is derived from the official immunity of Officer Storemski. See TEX. CIV. PRAC. & REM. CODE ANN. ยง 101.021 (
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