White v. Tackett

173 S.W.3d 149, 2005 Tex. App. LEXIS 7043, 2005 WL 2044544
CourtCourt of Appeals of Texas
DecidedAugust 25, 2005
Docket2-04-023-CV
StatusPublished
Cited by8 cases

This text of 173 S.W.3d 149 (White v. Tackett) 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
White v. Tackett, 173 S.W.3d 149, 2005 Tex. App. LEXIS 7043, 2005 WL 2044544 (Tex. Ct. App. 2005).

Opinions

OPINION

JOHN CAYCE, Chief Justice.

In this personal injury case, Patricia White was injured when a suspect fleeing from police crashed his car into hers. White sued Mark Tackett, in his official capacity as a state trooper for the Texas Department of Public Safety, for recklessness in initiating and continuing the pursuit that led to White’s injuries. Tackett moved for summary judgment on his affirmative defense of official immunity. The trial court granted Tackett’s summary judgment motion, and this appeal followed.1

In two issues, White asserts that summary judgment for Tackett is improper because Tackett’s summary judgment evidence does not establish his official immunity defense as a matter of law and because White demonstrated the existence of a material fact issue regarding whether Tackett acted in good faith. In a single point on cross-appeal, Tackett complains that the trial court improperly sustained White’s objections to some of his summary judgment evidence. We affirm.

In a traditional summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.2 The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant.3 Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant.4

In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the non-movant is accepted as true.5 Evidence that favors the movant’s position will not [152]*152be considered unless it is uncontroverted.6 If the uncontroverted evidence is from an interested witness, it does nothing more than raise a fact issue unless it is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.7

A defendant is entitled to summary judgment on an affirmative defense such as official immunity if the defendant conclusively proves all the elements of the affirmative defense.8 To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law.9

Governmental employees are entitled to official immunity from suit arising from the performance of discretionary duties within the scope of their authority as long as they act in good faith.10 A law enforcement officer acts in good faith in a pursuit case if, based on the officer’s perception of the facts at the time of the event, a reasonably prudent officer in the same or similar circumstances could have believed that the need to apprehend the suspect immediately outweighed a clear risk of harm to the public in continuing, rather than terminating, the pursuit.11 This good faith test is analogous to the abuse of discretion standard we utilize when reviewing certain trial court rulings.12

The “could have believed” aspect of the good faith test means that in order to be entitled to summary judgment, an officer must prove that a reasonably prudent officer might have believed that the pursuit should have been continued.... It does not mean that an officer has to prove that it would have been unreasonable to stop the pursuit; nor must the officer prove that all reasonably prudent officers would have continued the pursuit.13

An officer acts in bad faith only if the officer could not have reasonably reached the decision in question.14

The “need” aspect of the good faith test refers to the urgency of the circumstances requiring police intervention, including factors such as the seriousness of the crime to which the officer is responding, whether the officer’s immediate presence is necessary to apprehend a suspect or to prevent injury or loss of life, and what alternative courses of action, if any, are available to achieve a comparable result.15 The “risk” aspect of good faith, on the other hand, refers to the countervailing public safety concerns: the nature [153]*153and severity of harm that the officer’s actions could cause (including the risk that both the fleeing suspect and the officer could injure bystanders), the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent officer.16

A pursuit case requires a continuing assessment of need and risk; however, the officer is not required to affirmatively negate the existence of all circumstances or risks that did not actually exist.17 Further, the balancing of need versus risk does not prevent an officer from pursuing suspects for traffic violations or in residential or other populated or high traffic areas.18

If an officer satisfies his burden of establishing good faith, the plaintiff must put on controverting evidence to avoid summary judgment. “To controvert the officer’s summary judgment proof on good faith, the plaintiff must do more than show that a reasonably prudent officer could have decided to stop the pursuit; the plaintiff must show that ‘no reasonable person in the defendant’s position could have thought the facts were such that they justified defendant’s acts.’ ”19

The summary judgment evidence consists of: 1) the unstricken portion of Tackett’s affidavit, which was attached to Tackett’s motion20 and 2) a nine-page excerpt from Tackett’s deposition testimony attached to White’s summary judgment response, which Tackett referenced, in part, in his reply to White’s response.21 This evidence shows the following:

At 5:41 p.m. on New Year’s Eve 2001, Tackett was on routine patrol duty for the Texas Department of Public Safety when he clocked a new luxury sports car traveling in excess of the 55-mile-per-hour posted speed limit. The car was headed west on a rural farm-to-market road, FM 902, approximately five miles from the City of Gainesville, in what Tackett knew to be a high-crime area for theft and drug-related offenses. Tackett could not identify the make or model of the vehicle and was unable to read its license plate, but he saw two men inside who did not seem to “fit the vehicle.” Tackett observed that the driver was a Hispanic male in his 20s or early 30s who was wearing what appeared to Tackett to be “work” clothes — a red sweatshirt with no logo on it. The passenger was a white male with long hair and a dirty appearance. Normally, the type of person Tackett saw in that area in a brand new luxury sports car was an older person whose dress was a “little more fitting.”

Because of the vehicle’s speed, both occupants’ appearance, and the fact that it was a high-crime area, Tackett attempted to make a traffic stop by turning around to follow the car and activating his patrol lights. When the driver did not stop, but sped up instead, Tackett turned on his siren.

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Related

Brenda Watkins v. James C. Plummer
Court of Appeals of Texas, 2010
Green v. Alford
274 S.W.3d 5 (Court of Appeals of Texas, 2008)
White v. Tackett
173 S.W.3d 149 (Court of Appeals of Texas, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
173 S.W.3d 149, 2005 Tex. App. LEXIS 7043, 2005 WL 2044544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-tackett-texapp-2005.