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Loftin v. Morales12/14/2005
9 (Tex. 1985). Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id. at 549. Summary judgment for a defendant is proper when the summary judgment evidence negates an essential element of the plaintiff's cause of action as a matter of law or conclusively establishes all elements of an affirmative defense as a matter of law. See Black v. Victoria Lloyds Ins. Co, 797 S.W.2d 20, 27 (Tex. 1990). Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the non-movant to produce controverting evidence raising a fact issue as to the elements negated or the established defense. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
Applicable Law
Official immunity is an affirmative defense that protects government employees from personal liability. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). When official immunity shields a governmental employee from liability, sovereign immunity shields the governmental employer from vicarious liability. Id. A governmental employee is entitled to official immunity for the performance of discretionary duties within the scope of the employee's authority provided the employee acts in good faith. Id. Because official immunity is an affirmative defense, to obtain summary judgment on official immunity, the governmental employee must conclusively prove each element of the defense. Id.
Actions that require obedience to orders or the performance of a duty to which the actor has no choice are ministerial. City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994). However, the decision to pursue a particular suspect, as well as other decisions made during the course of the pursuit such as which route to follow, what speed to travel, whether to call for backup, and how closely to follow the fleeing vehicle, involve the officer's discretion. Id. at 655.
To obtain summary judgment on good faith in a pursuit case, a law enforcement 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. The officer need not prove that all reasonably prudent officers would have continued the pursuit. Id. The officer must prove only that a reasonably prudent officer might have believed that he should have continued the pursuit. Id.
The need element refers to the "urgency of the circumstances requiring police intervention" or "the seriousness of the crime or accident to which the officer responds, whether the officer's immediate presence is necessary to prevent injury or loss of life or to apprehend a suspect, 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 element of good faith refers to "the countervailing public safety concerns" or "the nature and severity of harm that the officer's actions could cause (including injuries to bystanders as well as the possibility that an accident would prevent the officer from reaching the scene of the emergency), the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent officer." Id. An officer acts in bad faith only if he could not have reasonably reached the decision in question. Clark, 38 S.W.3d at 581.
To controvert an officer's summary judgment proof on good faith, the non-movant must do more than show that a reasonably prudent officer could have decided to stop the pursuit. Id. The non-movant must sho
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