Murillo v. Garza

904 S.W.2d 688, 1995 WL 68606
CourtCourt of Appeals of Texas
DecidedAugust 16, 1995
Docket04-94-00562-CV
StatusPublished
Cited by14 cases

This text of 904 S.W.2d 688 (Murillo v. Garza) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Murillo v. Garza, 904 S.W.2d 688, 1995 WL 68606 (Tex. Ct. App. 1995).

Opinions

OPINION

CHAPA, Chief Justice.

This is an interlocutory appeal arising from the denial of a motion for summary judgment based on official immunity. Appellants Murillo and the City of Laredo assert that the trial court erred in denying their motion for summary judgment based on official immunity. We affirm.

In October 1992, Estefana Rosas was struck by a tractor-trailer rig and killed as she attempted to cross the intersection of Scott Street and San Agustín in Laredo. Appellees (Ms. Rosas’s survivors) brought suit against appellants (the City of Laredo and Roberto Murillo, the City of Laredo Traffic Engineer), alleging negligence and premises defect in that appellants knew that the intersection constituted a dangerous condition but failed to take steps to correct that condition. Appellees alleged that the combination of increased traffic flow, designation of Scott Street as a truck route, and lack of traffic signals at that intersection, combined with the presence of a traffic signal at the next intersection, caused traffic to back up into the intersection of Scott and San Agus-tín, preventing pedestrians from seeing oncoming traffic when trying to cross the street. There is summary judgment evidence that this condition was known to Murillo and the City.

Murillo filed a motion for summary judgment based on official immunity; the trial court denied the motion. In affirming the denial of the summary judgment, we held that Murillo conclusively established that the action complained of was discretionary rather than ministerial and that he was acting within the scope of his official duties and authority, but that he failed to establish as a matter of law that he acted in good faith. See Murillo v. Garza, 881 S.W.2d 199 (Tex.App.—San Antonio 1994, no writ). Following our affirmance, Murillo and the City of Laredo together filed a second motion for summary judgment, again asserting official immunity. The trial court again denied the motion.

In point of error one, appellants contend that the trial court erred in refusing to grant their motion for summary judgment based on Roberto Murillo’s official immunity. The rules governing review of a trial court’s ruling on a motion for summary judgment are well-settled: The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.CivP. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the non-movant. Nixon, 690 S.W.2d at 548-49; Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Every [690]*690reasonable inference from the evidence will be indulged in favor of the non-movant, and any doubts will be resolved in his favor. Nixon, 690 S.W.2d at 549; Montgomery, 669 S.W.2d at 311. A defendant moving for summary judgment on an affirmative defense must conclusively prove all elements of that defense. Swilley, 488 S.W.2d at 67.

Official immunity is an affirmative defense; the burden is on the defendant to establish each element of that defense. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994); see also Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex.1994) (defendant has summary judgment burden to conclusively establish each element).

Government employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority-

City of Lancaster, 883 S.W.2d at 653; see also Kassen, 887 S.W.2d at 9. Thus, to be entitled to summary judgment, it is appellants’ burden to prove that Murillo was performing a discretionary duty in good faith within the scope of his authority as city traffic engineer.

Appellants assert that our prior opinion in this case is “law of the case” on the issues of discretionary duty and scope of authority. We first note that appellees do not dispute that Murillo was acting within the scope of his authority; this element of official immunity is not in issue. Also, because we hold that appellants did not establish good faith as a matter of law, we need not determine whether appellants conclusively proved that Murillo was performing a discretionary function or whether our prior opinion constitutes law of the case. Similarly, we need not address appellees’ contention that Murillo is not entitled to immunity because he was exercising professional rather than governmental discretion. See Kassen, 887 S.W.2d at 11-12 (no immunity for exercise of medical discretion).

In City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex.1994), the supreme court addressed the issue of proving the official immunity element of good faith in the context of a police pursuit. The court fashioned a new test, which was derived from the federal test for qualified immunity in § 1983 cases. The court held that a police officer acts in good faith in a pursuit case if:

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.

Id. at 656. Stated more generally, a non-movant seeking to defeat summary judgment must show that “no reasonable person in the defendant’s position could have thought the facts were such that they justified defendant’s acts.” Id. at 657 (quoting Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir.1993)). The court conceded that the test is somewhat less likely than the federal test to resolve the issue of immunity at the summary judgment stage, but noted that “[e]ven federal immunity law does not guarantee resolution of the immunity issue at summary judgment.” Id.

Murillo’s affidavit in support of his motion for summary judgment sets out his professional qualifications and states that he always carried out his duties in the subjective good faith belief that he was making the best decision about a given traffic engineering problem. The test for good faith, however, as set forth above, is an objective test. See City of Lancaster, 883 S.W.2d at 656 (test of objective legal reasonableness).

Appellants also filed an affidavit from Murillo’s superior, Aranda, stating that he had reviewed Murillo’s work product concerning the intersection at issue and did not find him remiss in the exercise of his duties. Aranda concluded that Murillo acted properly and in good faith. Appellants also filed an affidavit from an expert named Nix who reviewed the depositions and exhibits and visited the scene.

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Murillo v. Garza
904 S.W.2d 688 (Court of Appeals of Texas, 1995)

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