Loftin v. Morales

187 S.W.3d 533, 2005 Tex. App. LEXIS 10427, 2005 WL 3434431
Court of Appeals of Texas·Decided December 14, 2005·No. No. 12-05-00063-CV·Published·Cited by 2 cases

Opinion

OPINION

SAM GRIFFITH, Justice.

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. Ly-sek, her expert, and Loftin’s and Evans’s complete deposition testimony. The trial court denied the motion and Appellants [536] filed this interlocutory appeal.1

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. Crv. P. 166a(c). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (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 plaintiffs 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 nonmovant 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.

[537] 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.

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Loftin v. Morales, 187 S.W.3d 533, 2005 Tex. App. LEXIS 10427, 2005 WL 3434431 (Tex. Ct. App. 2005).

187 S.W.3d 533 (Loftin v. Morales) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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