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Texas Department of Public Safety v. Salmeron9/7/1995
This is a consolidated appeal from a suit brought under the Texas Tort Claims Act, Civ. Prac. & Rem. Code, Chapter 101 (the Act), and 42 U.S.C. Section(s) 1983 against The Texas Department of Public Safety (DPS) and one of its employees, Trooper Tony Pullings. Both parties appeal the trial court's rulings on the defendants' motions for summary judgement on the issue of official and sovereign immunity. Appeal is permitted by TEX. CIV. PRAC. & REM. CODE ANN. Section(s) 51.014(5) (Vernon Supp. 1994). We affirm the trial court's finding of official immunity for Trooper Pullings and reverse the finding of no sovereign immunity for the DPS with regard to any negligent acts by Pullings.
BACKGROUND
Plaintiffs, Osman Salmeron along with others, brought a personal injury and wrongful death suit against Pullings and the DPS. The reason for the suit was a collision between Salmeron's automobile and a stolen truck being driven by John Grdijan III. Grdijan was attempting to evade a high-speed police pursuit which had originated south of Houston on U.S. Highway 59. Trooper Pullings first saw Grdijan traveling northbound near Rosenberg at an estimated speed in excess of 100 mph. Pullings caught up with Grdijan and turned on his siren and emergency lights. However, Grdijan refused to slow down and continued to drive erratically; attempting to run Pullings and other cars off of the road. After reaching Houston, Grdijan exited Highway 59 at a high rate of speed, ran a red light and collided with several vehicles, including Salmeron's. Grdijan jumped out of the truck and attempted to flee on foot, but was captured by a Houston police officer. Several people were injured in the accident, including Salmeron, his wife, his infant son, and Sulma Flores. The infant, who was being held in the front seat by Flores, was ejected out of the passenger window and later died from head injuries.
Plaintiffs subsequently brought suit against the DPS and Pullings under the Texas Tort Claims Act, Section 101.021, et seq. of the Texas Civil Practice and Remedies Code and under 42 U.S.C. Section(s) 1983. The defendants initially responded by filing a Motion for Summary Judgement and a Plea in Abatement. The court granted the motion as to Pullings on the basis of official immunity. The court also granted a partial motion for summary judgement as to three allegations of negligence against the DPS. However, the court refused to grant a later summary judgement motion filed by the DPS as to the remaining allegations of negligence on sovereign immunity grounds.
DISCUSSION
I. Trooper Pullings
A. Official Immunity
We first discuss the trial court's granting of summary judgment to Trooper Pullings on the ground of official immunity. Plaintiffs argue in their first and second points of error that this ruling was improper since there existed a material issue of fact regarding the good faith element required for the affirmative defense of official immunity.
Summary judgement for a defendant is proper when the proof shows that no genuine issue of material fact exists on one or more of the essential elements of the plaintiff's cause of action, or when defendant establishes each element of an affirmative defense as a matter of law. Black v. Victoria Lloyds Ins. Co., 707 S.W.2d 20, 27 (Tex. 1990). In deciding whether there is a disputed material fact issue precluding summary judgment, proof favorable to the non-movant will be taken as true. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
To be entitl
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