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Loftin v. Morales12/14/2005
This is an interlocutory appeal of the denial of a motion for summary judgment in a personal injury and wrongful death action. Appellee, Misty Morales, individually and as personal representative of the Estate of Donna Morales, sued Appellants, Troopers Randy Loftin and Barry Evans, each individually and in his official capacity as a Texas Department of Public Safety Officer, the Texas Department of Public Safety (DPS), and the State of Texas for damages resulting from her injuries and her daughter's death. On appeal, Appellants assert that the trial court erred in denying their motion for summary judgment because they proved the elements of official immunity and Morales failed to provide sufficient controverting evidence to defeat the motion. We affirm.
Background
On May 14, 2001, Troopers Loftin and Evans observed a purple Ford Probe traveling seventy-four miles per hour in a fifty-five mile per hour zone. The driver accelerated when Loftin, who was driving the patrol car, activated his emergency lights to stop the vehicle. The troopers pursued the vehicle at speeds up to one hundred miles per hour. They traveled over rural farm-to-market roads, through Eagle's Bluff golf course, and into a rural residential community. While in the residential area and traveling fifty or sixty miles per hour, the patrol car struck a pickup driven by Misty Morales. Her five-year-old daughter, Donna, was killed as a result of the accident. Ms. Morales, invoking the Texas Tort Claims Act, sued alleging that the troopers negligently caused the death of her daughter as well as her own physical injuries, mental anguish, loss of earnings and earning capacity, physical impairment, disfigurement, and loss of enjoyment of life. Donna's father, Arnulfo Morales, filed a plea in intervention seeking damages he suffered due to mental anguish and the destruction of the parent-child relationship.
Appellants filed a motion for summary judgment claiming entitlement to judgment as a matter of law under the doctrine of immunity. They supported the motion with affidavits of Loftin, Evans, and accident investigator Don Willingham, and excerpts from Loftin's deposition testimony. Morales responded, supporting her response with her own affidavit as well as those of Loftin, Evans, and David A. Lysek, her expert, and Loftin's and Evans's complete deposition testimony. The trial court denied the motion and Appellants filed this interlocutory appeal.
Immunity
Appellants contend the trial court erred in denying their motion for summary judgment because Troopers Loftin and Evans are, as a matter of law, entitled to official immunity. They argue that the officers acted as reasonably prudent peace officers when attempting to stop and apprehend the driver of the Probe. They contend the summary judgment evidence shows the officers reasonably believed that the need to immediately apprehend the suspect outweighed the risk of harm to the public. Further, they assert Morales did not meet her burden to controvert Appellants' summary judgment proof on the issue of good faith. Morales responds that Appellants did not establish that they were acting in good faith and that contradictory statements in Loftin's affidavit and deposition testimony raise fact questions.
Standard of Review
To obtain a summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-4
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