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Hanks v. City of San Antonio12/22/1999
t favorable to the non-movant, appellant must show as a matter of law that a reasonable prudent officer could have believed his actions to be justified if the light was red. Pena, 991 S.W.2d at 945. Appellants' summary judgment evidence fails to analyze "the degree, likelihood and obviousness of the risks" created by driving the patrol car through the red light. Id. at 945. Unresolved material fact issues preclude summary judgment. Cf. City of San Antonio v. Garcia, 974 S.W.2d 756, (Tex. App.-San Antonio 1998, no pet.)(Fact issue as to whether defendant exhibited hostile behavior leading to his arrest prohibited summary judgment based on official immunity); Martinez v. Mikel, 960 S.W.2d 158, 160 (Tex. App.-San Antonio 1997, no pet.)(Fact issue as to whether individual's hands were in his pockets when he failed to immediately respond to directions, so that reasonably prudent officer would have perceived need to use deadly force, or were merely at his side, precluded summary judgment based on official immunity).
To controvert appellees' expert, appellants offered the deposition testimony of Deputy Chief Albert A. Ortiz who stated that if the jury did not believe that Villanueva had his sirens on, his emergency lights activated, and a green light, then he was in violation of police procedure. Because there remains a disputed fact issue, whether the light was red or green and whether Officer Villanueva was operating his lights and sirens in advance of the accident, we need not reach the issue of whether the appellants' deposition testimony is competent summary judgment evidence. See Garcia, 974 S.W.2d at 758.
Appellees argue that the underlying factual disputes should not prevent summary judgment because the proper focus of our inquiry is on the officer's perception of events at the time of the incident. However, we have previously held that even a generous interpretation of Wadewitz and Chambers does not suggest that summary judgment would be proper when an officer's perception of the facts squarely conflicts with eye-witness testimony. Mikel, 960 S.W.2d at 160.
We note that the facts surrounding the officer's actions were not at issue in Wadewitz or Chambers. Further, such an interpretation of these cases would amount to the recognition of absolute immunity and would contradict the well-established rules which guide our review of a summary judgment order. Id.
After reviewing all the summary judgment evidence under the appropriate standard, we conclude that the evidence does not establish as a matter of law that a reasonably prudent officer under the same or similar circumstances could have believed that proceeding through the intersection was justified. The inconsistencies in the underlying summary judgment evidence as to whether Villanueva ran a red light or was operating his lights and sirens prior to entering the intersection create genuine issues of material fact. Therefore, appellees failed to establish as a matter of law that Villanueva acted in good faith. Because the summary judgment evidence creates genuine issues of material fact about his actions, appellees were not entitled to summary judgment on the affirmative defense of official immunity from suit. The judgment of the trial court is reversed, and this cause is remanded for further proceedings.
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