*1 рre-amendment receive due to the Nor are filed December the settlement. we any policy of the controls. Conse- aware of considerations which version statute quently, proportion- support the would such a rule. To the election between con- trary, plaintiff al credit and a dollar-for-dollar credit is control giving some over solely by previous- the submission of the determined is consistent with our election settling negligence jury ly leaving defendant’s policy articulated both the regardless requests of who submission. with the benefits and risks settlement plaintiff greater necessarily who has con- Furthermore, plain we hold that the trol whether settlement will occur. over right request the tiff had the to submission Co., Duncan v. Cessna Aircraft settling negligence of the tortfeasor’s to (Tex.1984)(if plaintiff jury. We came to a similar conclusion disadvantageous on deems settlement ne- Muller, Cypress Creek Serv. Co. Util. settle gotiated terms it can choose not to (Tex.1982), where we all). held: We court did not err hold that trial [, opinion in Deal v. Madison jury ques- plaintiffs’ when it submitted (Tex.Civ.App. — Dallas inquired tion the existence and does, however, about n.r.e.)] imply writ ref’d Higginbotham’s negligence amount of un- settling negligence of a tort- comparative pre-September der the may the re feasor not be submitted at Therefore, negligence we hold plaintiff trigger to statute. quest of a in order 2(e) appeals in modify- that the court of erred section [now Rem. Tex.Civ.PRAC. & (Vernon 1986) ing judgment on that basis. To the trial court’s 33.015 ]. Ann. Code can read the extent Deal v. Madison Tex.R.App.P. to rule we Pursuant 2(e) applies only at hold that section to grant applications writ of error of defendant, it option conflicts Mutual, Columbian, Kist, Millers Gold opinion, it the statute and this Higginbotham, deny application TP L’s& disapproved. and, hearing oral for writ of error without Creek, 866. Cypress argument, majority of court reverses appeals and judgment court in this case distin- The court the trial court. affirms the Cypress Cypress in that guished Creek plaintiff any not settle with did Creek Consequently, the court rea- defendant.
soned, plaintiff non-settling had a question each defen-
right to submit the to negligence jury ascertain
dant’s plaintiff.
each defendant’s distinguished Cypress
The court Creek situation where there applying Individually TRAVIS, Ann Brenda non-settling plaintiff. situa- those Wayne Friend of Next Jason tions, non-settling argued, Petitioners, al, Travis, et right retains the submit plaintiff jury and this negligence to defendant’s non-settling defen- defeat right can Texas, MESQUITE, OF The CITY cred- right to elect a dollar-for-dollar dant’s al, Respondents. et However, court held when it. No. C-8576. here, settle, as the non- plaintiffs Texas. Supreme Court of right elect a dollar- settling defendant’s paramount. credit is for-dollar May nothing pre- disagree. findWe gives 33.015 that 33.014 and 1987 sections non-settling exclusive defendant credit is to type it elect the
right to
cause of the accident. affirm the sum mary the two officers who merely responded to the radio call as sistance. *3 working off-duty late-night
While se- curity guards truckstop, Mesquite at a po- lice Ashby officers and Johnny Vestal Stephen driving McClure saw Adkins a ve- (a “Z-28”) hicle in the back lot of the truckstop. Eric Lovell and Evelyn Wilson Anne were also Activity Vestal in the car. made Ashby around the car and McClure suspicious occupants were in- prostitution. approached They volved and asked Adkins’ car for his identification. it, produced Ashby After Adkins and McClure instructed Adkins to drive to the truckstop front to wait lot of and there until had checked his identifica- the officers tion. Jr., Zimmer, Moore, Edward H. Rita M. Countiss,
Dallas, Houston, Richard for N. lot Adkins drove to front but instead petitioners. into the street. stopping accelerated pursued Ashby immediately and McClure III, Wren, Wright, Edwin E. Ronald D. Mesquite Adkins and also radioed the Po- Dallas, respondents. for Department. lice Officers Jim Duckworth and the radio call and Rehearing Sam McDonald heard On Motion for proceeded toward scene. GAMMAGE, Justice. high speed, Fleeing at a rate of Adkins Respondents’ rehearing for motion way one-way high- wrong went onto a opinions This of Decem- overruled. court’s way Ashby and McClure road. access opin- are and the ber withdrawn Adkins, wrong going way also chased following are substituted in their ions road. and Mc- down acсess Duckworth place. mile or road a entered the access so Donald police case is whether The issue this up going the street correct further from officers are insulated towas cut Their stated intention direction. high-speed in a engage their decision wrong way. going off Adkins vehicle pursued chase when collides converg- police cars were two sets of no matter much party, a third how directions. ing from different on Adkins using chase others danger poses hill, Cresting a Adkins crashed head-on court rendered sum highway. trial car, Leonel Lo- killing into Travis’ Brenda city and the four mary judgment for passen- injuring zano Travis and other and in the chase. With officers involved gers. Summary judgment evidence indi- dissenting, the court of justice whole chase and collision cated that affirmed, holding as a matter of law While in less than minutes. occurred two police officers’ could not consti actions police vehicles it is whether unclear both proximate cause of accident. tute a on, evidence shows had their sirens this and remand reverse and McDonald that at least Duckworth instituting pur to the two officers sounding. was car siren city, because suit pas Travis, Lozano’s survivors a fact issue judgment evidence raised four officers and sengers sued the pursue, under the the decision to whether negligence, alleging circumstances, Mesquite, city facts and gross negligence, Donald, Duckworth, Ashby violations of and McClure. (1982) rights pointed civil under 42 U.S.C. portions Plaintiffs dep- out these Ad Plaintiffs also sued precluding ositions raise fact [“Section 1983”]. issues sum- kins and his passengers negligence two mary judgment. deposition in- Ashby’s (and gross negligence grounds). follоwing testimony; cludes the granted partial summary The trial court Q. you And you at the time knew judgment requested by began and Officer McClure the city disposing Section injuries chase that as a result of action, judg causes of denied summary but possible pur- wrecks result of ment as to the other claims. defen Those situations, right? suit then dants filed a Motion to Reconsider and *4 Yes, sir. A. Supplement Defendants’ First Amended ref’d respondeat superior liability law, S.W.2d Motion, asserting mary judgment lack based on n.r.e.), 114 of proximate and Dent on the (2) v. City new — Dallas cause as a remaining grounds impossibility of Dallas, matter claims sum 729 (1) of Q. possibly become involved in a head- And on either headed east on [*] collision, right? you your [*] knew that once car or the Z-28 could [*] service [*] [*] road, you that [*] A. That’s correct. Mesquite absent individual on the part officers. After reconsid depositions The each of other three eration, granted the trial sum final inсlude testimony, similar mary judgment in favor of the margin.1 we set forth in the Notwithstand- Mesquite officers, and sev evidence, ing a ma- plaintiffs’ against ered causes of action jority panel appeals court of conclud- plaintiffs’ them from causes of action ed that as a matter of law offi- against passengers. Adkins and his two initiate and cers’ decisions both to continue chase, presented,
Included in the evi- under circumstances depositions dence were the Mc- proximate Officers could not have been a cause of The A. A. right? A. Q. result of that correct? upon you have occurred because of that. volved here possible chase that driving down the service road and that the Z-28 that Q. collision with Q. then, you A. Q. there was a began Q. ing deposition of deposition Yes, Yes, Yes, Yes, Two, Okay. And Okay. But Okаy. were deposition the scene of an accident [******] stop head-on in you you sir. sir. sir. sir. result your had witnessed chasing you And that And possibility a vehicle that was were aware at the time that knew the time of Officer oncoming chasing were headed the of Officer from you knew injuries Officer So you could also have a head-on at your at least on know, any pursuit situation, that a collision Jim Sam direction. traffic, fleeing Z-28 that was come Johnny accidents Duckworth: McDonald: obviously, you two you immediately right? going violator; wrong way started the occasions, McClure: were could to be you try- in- a just bound been A. That’s pursuit of the A. A. If is that correct? get onto 1-20 at the time A. pursuit situation. traveling westbound on the other side of the little creek seeing Q. And Q. A. present Q. Q. sight obstruction that would A. That’s correct. Q. sir. Yes, sir. Yes, Yes, And Okay. That wouldn't be ablе to see And regard people that [******] they direction on vehicles you you certainly by sight sir_ accidents were a sight correct_ where was You knew that were down understood that there could have traveling Z-28, right? obstruction, something any pursuit approaching obstruction, the accident understood frontage the feeder possible that that you began your yes. prevent situation, you happened from an east- oncoming dip, hill formed a could occur road, mean result of a it would June vehicles road right? right? they car, negligent liability, collision. We hold the court actor from the actor’s misapplied proximate negligence superseded cause doctrine. is not will excused when criminal conduct is proximate The two elements of negligence. foreseeable result of such foresеeability. cause are fact Nixon, Poole, 314; 732 S.W.2d at Pike, 727 Gladewater v. S.W.2d 550; (SEC- RESTATEMENT S.W.2d (Tex.1987). “Cause fact” OND) (1965). OF TORTS 448 There can act or was a means omission sub be concurrent causes of an acci- bringing injury, stantial factor in about the All persons dent. conduct whose it- harm not have oc without would proximately injury, contributes to the caus- Id.; Kerby curred. v. Abilene Christian Poole, ing injury, are liable. College, S.W.2d 313; Gehring, S.W.2d Strakos quoted summary The summarized and (Tex.1962); v. Tra- McAfee judgment evidence raises inference that Corp., 137 Tex. vis Gas Adkins drove down the access road at an When the interven- speed excessive because of the deci illegal negligent foreseeable, ing act it give sion to chase. There was continuing proximate negate does not judgment evidence that conduct *5 consequent liability of the causation аnd police a cause in fact of the officers was Nixon, 690 at 550. initial actor. S.W.2d injuries in question, accident and of the for plaintiffs recovery. which seek recognize police that officers We pursuing a must make their decisions about that “Foreseeability” means the fleeing rapidly pres suspect while under actor, ordinary intelligence, person of as sure, that there is but we have concluded anticipated dangers have the should statutory po special provision excepting no negligent act for created others. Nix legal stan lice officers from the recited Co., Management on Mr. Property proximate officers for cause. Police dards (Tex.1985); S.W.2d 549-50 Missouri public the risk to the with must balance Statesman, RR. v. American Pac. Co. duty to choose an to enforce law (Tеx.1977). Foreseeability appropriate course of conduct. Public require person anticipate does not in safety not be thrown to winds should precise injury in which manner will heat of the chase. dangerous once he has created a occur negligence. legislature has enacted least through his Brown Our state situation Co., applying to ears as two statutes v. Edwards Transfer Poole, stating (Tex.1988); emergency the driver Corp. El vehicles Chico (Tex.1987). Although duty “the to drive with due relieved of not [using may safety persons for of all party regard a third criminal conduct of dissent highway].”2 The well-reasoned superseding cause which relieves the be a 2.Tex.Rev.Civ.Stat.Ann. Tex.Rev.Civ.Stat.Ann. 1977 & 1977), provides (emphasis supplied): safety the driver of an authorized from the position until the authorized hicle yield the thorized vehicle (b) dible (a) ments of Section 124 of this 1. The driver audible This section shall not Upon Supp.l has [******] properly emergency duty right-of-way passed. visual signal only: 989) provide (emphasis supplied): persons to drive with immediate signals meeting every art. vehicle using art. lawfully making ... 6701d, 6701d, approach other vehicle shall emergency vehicle operate due making Act, remain emergency ve- highway. 24§ regard 75§ or of a to relieve use of au- (Vernon (Vernon require- an au- use long directions. rection necessary vehicle sign, (c) suspected call or vehicle, sions subject (b) 2. Proceed 3. Exceed the maximum 1. Park or The driver of an authorized privileges as he does not but Disregard regulations when to the conditions of movement may: driver when only violator of for safe chapter; stand, irrespective past in the after set fоrth responding to an of an authorized a red operation; endanger slowing the law ... pursuit or or in turning herein stated. stop signal this down life or speed limits so governing may an actual or section, emergency emergency emergency property; specified exercise may or provi- stop but di- appeals correctly the court of Stratford, concluded Tetro v. 189 Conn. Town of 458 A.2d policy embodied in those statutes does not shield officers from We fact hold that issues raised pur- automobile accidents caused precluding summary judgment as to Ash- McClure, suit. statutory by, City Mesquite. Under similar schemes and conceded, Respondents’ reargu- facts counsel involving high-speed police pursuits in rehearing, ment on motion for that fact pursued vehicle innocent injures requiring issues remain reversal and re- parties, third jurisdic- courts of other recognize mand for trial. While we rejected duty” tions have “no and “no police pursuit important is often and neces- a matter of law” ratio- sary apprehending posing criminals nales of older cases which insulated cannot, danger society, to our we as the liability.3 regard We these as the today, apparently dissent does conclude better reasoned cases. that all chases are no reasonable matter pur decision to initiate continue approach what the circumstances. Our to- may suit heightened when the day preserve public seeks to risk injury parties to third is unreason safety, but also lives of able in in appre relation the interest protect entrusted to it.4 hending suspects. Smith v. West The evidence establishes that Offi Point, (Miss.1985); 475 So.2d Ob cers did MсDonald Duckworth no more Ellisville, erkramer v. respond They than to call for assistance. (Mo.App.1983). agree 292-93 participate did not in the decision insti Supreme Court of Connecticut’s state nor tute the chase continue ment, in involving police a case officers’ once Adkins headed down the access road *6 conduct in maintaining police pursuit wrong accordingly direction. We high speeds the wrong direction on a summary judgment affirm the in their fa busy street, one-way apprehend suspects to vor. thought young to too to have drivers’ Respondents assert that the tri licenses: summary judgment al of grant court’s The intervention of or even grounds of upheld should be common- by reckless behavior of the driver car governmental law accorded offi police pursues not, whom the does under discrеtionary cials in the performance of view, the emergent majority require the acts. A motion for proxi-
conclusion that there is a lack of
therefor,”
specific grounds
must “state the
mate
police negligence
cause between
“[ijssues
expressly
presented
not
motion,
injuries.
by
an innocent
victim’s
trial court written
answer or
395,
(d)
Court,
exemptions
granted
Superior
Cal.App.3d
The
herein
to an au-
v.
131
182 Cal.
emergency
apply only
(1982);
Stratford,
thorized
Rptr.
vehicle shall
443
Tetro v. Town of
use,
making
601,
when
(1983);
such vehicle
the dis-
City
189
mary judgment, issues
be reviewed
JJ.,
actually
joined.
appellate
cоurt must have been
presented
to and considered
the trial
CORNYN, J.,
Concurring Opinion by
court.
Houston
Clear Creek
PHILLIPS, C.J.,
joined by
and GONZA-
Authority,
675-77
Basin
589 S.W.2d
LEZ, J.
A
cannot
COOK,
Dissenting Opinion by
J.
ground
specifically
on a
not
be affirmed
J.,
HECHT,
sitting.
not
summary judg
in the motion for
presented
Acci
ment. See also Dhillon v. General
CORNYN, Justice, concurring.
Co.,
(Tex.
dent Ins.
writ);
1990, no
App.
agree
judgment
I
Although
[14th Dist.]
— Houston
Lighting & Power Co. v. Wheel
Houston
be reversed and
the court of
must
Co.,
abrator Coal Services
trial court for further
remanded
disagree
[14th Dist.]
plurality’s
I
with the
proceedings,
— Houston
writ).
no
Neither the motion for
immuni-
holding
the issue of state law
judgment nor the motion for reconsidera
ty
preserved for our review.
was not
raised the issue
tion filed in the trial court
summary judg-
motion for
officers’
immunity.5 Consequently,
law
of state
(entitled Motion for Reconsideration
ment
having
presented to the trial
never
bеen
Amended Motion for
of Defendants’ First
court,
urged as
question
now
cannot
Supplement to De-
Judgment and
Summary
summary judg
ground
affirming
Amended Motion
Sum-
fendants’ First
presented,
ment. Because the issue is
plaintiffs’ re-
Judgment)
mary
respon
express
opinion regarding
no
we
this issue in
sponse unmistakably raised
concerning
im
arguments
state law
dents’
preserved
and it has been
the trial court
analysis urged by the con
munity, or the
unnecessarily avoiding
By
for our review.
curring justices.
issue, the
has condemned
plurality
expensive,
rounds
litigants to further
of the trial
reverse the
*7
litigation.1
and inconclusive
time-consuming
except
appeals,
and court
court
and im-
immunity is an unsettled
Official
con-
We have
McDonald and Duckworth.
and cries
jurisprudence
in our
portant issue
respondents’ arguments ad-
all of
sidered
of future
for elucidation for the benefit
for
out
vancing
grounds
theories or
alternative
offi-
Finally,
litigants
find
too.2
because
summary judgment and
upholding the
immunity
sum-
into the
issue of state law
for Sum
the
mary judgment proceedings.
5.
First Amended Motion
Defendants’
mary Judgment
assert that the doctrine
did not
liability.
immunity
barred
state law
however,
opinion,
as to the
express
6. We
no
cited to the trial
Motion for Reconsideration
interlocutory
court’s
of the trial
correctness
Dallas,
authority,
Dent
court new
city
relieving
summary judgment
(Tex.App.
re'fd
S.W.2d 114
— Dallas
Section
under
officers from
individual
n.r.e.),
granting
support
earlier mo
for
1983.
Additionally,
for
the Motion
Reconsidera
tion.
summary
grounds
new
for
tion asserted two
signed
noting
court
the trial
1.
is
It worth
premised on
Dent decision:
judgment, one
final sum-
granting
defendants
the order
Further,
sup-
allege as a
Defendants would
6,May
mary judgment
on
on all claims
Summary
ground
[Judgment]
plemеntal
for
years be-
five
Hopefully, it
not be another
will
that,
law,
no
there is
as a matter of
the fact
finally
case is
resolved.
fore this
of Defen-
proximate
between the acts
cause
damages.
alleged
As
and Plaintiffs’
dants
appear to
"qualified” and "official”
2. The terms
opinion,
of the
Dent
the actions
held in the
interchangeably
indiscriminately and
be used
fleeing
fleeing
offi-
from Defendant
driver in
ap
logical explanation
during
some courts.
ignoring
all traffic laws
cers and
flight
court,
that,
under
pears
in state
claims
sole
was the
Act and 42 U.S.C.
Tort Claims
the Texas
both
of law.
as a matter
accident
Furthermore,
joined.
accompanying
frequently
paragraph,
§ 1983 are
latter
This
immunity
qualified im
inject
opinion,
elements
official
did
of the Dent
discussion
immunity
dispositive
cers’ entitlement to
ant’s claims such
it will
enable the
City’s
liability under the Texas Tort
response.
prepare
non-movant to
West-
(TTCA),
Claims Act
I believe this issue is
Alvarez,
chester Fire Ins.
Co.
before the
should
Court and
be addressed
See also
plurality
as well. Because the
fails to ad-
Cisneros,
Thomas v.
issues,
dress either of
I
sepa-
these
write
(Tex.App.
n.r.e.)
writ ref’d
— Austin
rately to do so.
(grounds
for
are suffi
ciently specific
they
where
consist of a
I.
give
concise
statement sufficient
notice
The plurality holds that
“[n]either
grounds upon
to the
non-movant of
motion
for
nor the mo
sought).
apparent
It is
tion for reconsideration ...” raise the issue
opposing
that both
the trial court
coun
immunity.
of state law
At 100.
I dis
fully
sel were
aware of
officers’ re
agree. The record reveals that the issue of
liance on the
defense of official
affirmative
immunity
officers’ statе law
parties
immunity.
squarely
Because the
original
raised in the officers’
motion for
presented
question
official
summary judgment. Following the trial
determination,
the trial court
decid
partial summary judgment
court’s
in favor
motion,
ed this issue in
granting
it can
of the officers and
for claims made
only by applying
application
a tortuous
1983,3
under section
the officers later filed
166a(c)
plurality
Rule
concludes
reconsideration,
styled
motion for
Motion
preserved.
this issue has not been
for Reconsideration of Defendants’ First
Summary
Amended
Judgment
Motion for
ap-
Travis’s briefs filed in
court of
and Supplement
peals
to Defendants’ First
and in this
demonstrate
Tra-
Amended
Summary Judgment,
Motion for
acknowledgement
vis’s
of the officers’ re-
part
based on the then recent decision in liance on the
defense of
affirmative
Dallаs,
Dent v.
A
to
who wishes
an issue
[are]
qualified
immunity for their
or
summary judgment
before the court on
is
grossly negligent acts.” Since the trial
required to
set
“expressly
by
out” thе issue
motion,
previously granted
court had
both the
“written
or
answer
re
sponse.”
166a(c);
and the officers
as to
Tex.R.Civ.P.
claims,
Travis’s
Houston
section 1983
Travis could
Authority,
v. Clear Creek Basin
671,
only
addressing immunity to
pur
589 S.W.2d
675
state law
claims,
pose
immunity.
ensure
namely
this rule is to
that the non-
official
Further-
more,
argument
adequate
response
movant has
notice of the mov-
in Travis’s
Dist.,
fled);
munity
Indep.
appear
practical purposes
Stimpson
for all
to be
v. Plano
School
743
fact,
944,
1987,
the same.
In
as further indication of the
(Tex.App.
writ
S.W.2d
947-48
—Dallas
proper designation
confusion over
of this
denied)
immunity);
Story,
(good faith
Baker v.
type
immunity
immunity,
has been
official
639,
(Tex.Civ.App.
Antonio
621 S.W.2d
— San
called a
a
number of different names
num
1981,
n.r.e)
immunity).
(quasi-judicial
writ refd
e.g. Carpenter
ber of
Burner,
See
different courts:
v.
99,
(Tex.App.
— Waco
refer to 42 U.S.C.
3. All references to
1990,
denied) (immunity variously
known
§ 1983.
official,
governmental,
quasi-judicial
quali
or
Department
Public
which
by the Texas
officers’ actions about
Travis com
raised
discretionary
curiae,
plains were
or ministerial.
urges
Safety as amicus
Travis
immunity
no official
is
“[t]here
discretionary
The distinction between
Though
officers.”
no doubt
problematic
acts has
and ministerial
been
clearly
distinctly
more
artic-
could have
legal commentators5 and courts alike.
ulated
for their state law immuni-
the basis
point
As
Prosser and Keeton
Professors
defense,
ty
light
confusing
man- out, “the conclusion that the officer’s acts
immunity
ner in
has
which
been
‘discretionary’
probably only
is
a
courts,
quandry
by our
is
addressed
complex poli-
a more
shorthand notation for
understandable.
cy decision.”
& KEETON at
PROSSER
However,
1062.
more than one hundred
non-movаnt has notice of the
When the
years ago
distinguished
this Court
discre-
grounds upon
which
tionary
and ministerial acts
this manner:
166a(c)
sought,
purpose
of Rule
has
acts
where the
are
law
those]
[Ministerial
preserve
to
sufficiently
been
met
error.
prescribes and defines the duties to be
argued
Travis
the is-
Because
briefed
performed
precision
and cer-
immunity
sue of the officers’
from state
nothing
leave
to the exercise
tainty
to
claims,
pre-
joined
law
the issue was
judgment....
of discretion
[B]ut
properly
such that it is
before this
served
the act
be done involves the
where
Court.4
judgment,
exercise of discretion or
it
merely ministerial.
not to be deemed
II.
(1878)
50 Tex.
Simpson,
Rains v.
(quoting
the General
Commissioner
immunity
negligence liability
Official
Smith,
v.
5 Tex.
Land
government employee’s
a
offi
attaches to
Office
(1849));
Department
Wyse
see also
v.
employee’s
only
job
cial actions
when the
(Tex.
Safety,
Public
personal judgment
requires the
exercise
n.r.e.) (“[d]is-
App.
writ ref’d
government
em
and discretion. When
— Waco
require
which
cretionary actions are those
discretionary
out the
duties
ployee carries
deliberation,
judg
decision and
personal
good
job
of his
faith and acts within the
ment,
require
ministerial actions
obe
while
authority,
employee
of his
is enti
scope
of a
performance
or the
dience
orders
from
immunity
tled to official
suit. Baker
no
the actor is left
duty as
(Tex.Civ.
Story,
Hale,
choice”);
Austin
n.r.e.).
Antonio
writ ref’d
App. — San
writ); Baker,
no
contrast,
per
government employee’s
— Waco
645.
621 S.W.2d at
merely
are
ministe
formance of duties that
proposition, it seems obvi-
general
rial in
are not cloaked with official
As a
nature
threshold, then,
performing discre-
immunity.
police officers
At the
we are
ous that
acting
tionary
good
faith and
the issue of whether the
duties
confronted with
unsalvage-
grant
immunity
effectively
significant
Legis-
Parenthetically,
are
it is
of the Texas Civ-
lature amended Section 51.014
to be immune
able if the official is determined
Code in 1989 to allow
il Practices
Remedies
a trial on the merits.
after
appeal
employee
interlocutory
government
cited).
(cases
at 2814-15
Id.
105 S.Ct.
denying summary judgment
based
of an order
for such
is:
The articulated basis
*9
immunity.
& REM.
official
TEX.CIV.PRAC.
on
avoiding
importance
distraction of officials
51.014(5).
opportunity for
This rare
§
CODE
duties;
governmental
desire to
from their
just
interlocutory appellate
reveals
how
review
action;
discretionary
mini-
inhibition
avoid
legislature
the defense
importаnt the
considers
public
people from
mizing
able
deterrence of
immunity
government employees
of official
service;
unnecessary
avoiding
of an
the costs
invoked,
proce-
successfully
to be. When
trial;
insulating
from burdensome
officials
immunity
immunity
dure renders an officer's
discovery.
Id.
suit,
just immunity
liability. See
not
from
from
511, 526,
Forsyth,
105 S.Ct.
472 U.S.
Mitchell
KEETON,
e.g.,
& KEETON
PROSSER
5. See W.
2806, 2815-16,
(1985) (address-
86 L.Ed.2d
1984) (hereinafter
(5th
ed.
ON TORTS
ing right
interlocutory
from denial
(SEC-
KEETON);
&
RESTATEMENT
PROSSER
OND)
summary judgment
ty
qualified
immuni-
based
895D,
claims).
b.
very
comment
OF TORTS
The
reasons for
to section 1983
scope
within the
em-
discretionary
glossed
course
of their
acts and have
ployment should
entitled
im-
Austin,
be
to official
good
issue of
over the
faith. See
munity.
public
else
Nowhere
in
service is
68;
at
Dept.
Russell v. Texas
immunity
official
appropriate
more
or nec-
Resources,
510,
Human
essary than in police work.
In
rou-
their
denied).
(Tex.App.
writ
— Texarkana
work, police
tine
officers must be free to Unwittingly
confusion,
compounding the
split-second
make
judgments
good
faith
occasionally
Texas
have
courts
failed to
experience
training,
based on their
acknowledge
immunity
that official
is an
fear of personal liability.
without
To hold
defense
erroneously
affirmative
and have
likely
peace
otherwise “would
cause other
plaintiff
prove
shifted the burden to the
officers under similar circumstances to
defendant
that the
acted in bad faith. See
acting
flinch from
because of fear of liabili
101;
Carpenter, 797 S.W.2d at
Pierson v.
Barner,
ty.” Carpenter v.
Dist.,
Independent School
(Tex.App.
denied)
— Waco
[14th Dist.]
— Houston
(citing
Creighton,
Anderson v.
483 U.S.
n.r.e.). Only
writ ref’d
a few cases discuss
3034, 3039-40,
107 S.Ct.
97 good
faith
the context of a claim of
(1987)).
L.Ed.2d 523
“Creating
poten
immunity
to а commonlaw cause of
public’s
tial does not
serve
interest.”
similarity
action. Because of the
between
Id. Were there no
personal
good
applies
as it
faith
to the defense of
liability
circumstances,
under such
“the
qualified immunity
claims,
to section 1983
prudent
gov-
would
reluctant
to enter
addressing good
these cases
faith in that
per-
ernmental service
competent
and even
are
context
instructive.
sons who
public
entered
life
would
Supreme
United States
Court ad-
zealous in discharging their
Bak-
duties.”
good
qualified immunity
dressed
faith in
er,
suit III. (the immediately suspect apprehend Similarly, demonstrate the record fails to element); subjective entitled to officer, 2) reasonably prudent police a Act Tort Claims under the Texas circumstances, or similar under the same State, (“TTCA”). general rule the its As the clear risk of harm would know that im are political subdivisions agencies public continuing doc on the mune from tort based to im- substantially outweighs the need immunity. sovereign State trine of (the apprehend suspect ob- mediately (Tex.Civ. Brannan, element). jective ref'd). politi As App. —Waco State, standard, plaintiffs burden cal subdivision Under immunity from Mesquite enjoys absolute one or more of the elements is to defeat specific waiver of liability absent of official immuni- tort defense the affirmative immunity. Turvey v. applica- for its See prima facie case ty once *11 Houston, (Tex.1980); law, 602 S.W.2d be affirmed. As a matter of under the ease, Univ., police Lowe facts in v. Texas Tech 540 S.W.2d this the officers are not proximate injuries. a applicable pro cause of the The waiver ignores many Court also provides: vision of TTCA of the facts this the accident, suspect case. After the stat- governmental A unit in the state liable investigating ed to officers that he fled to for: apprehension outstanding avoid because of 1) property damage, personal injury, and warrants for his arrest: one armed proximately death wrong- caused robbery and on a mоtion to revoke his ful negligence act or omission or the probation burglary for a conviction. At- employee acting an the scope within kins was a convicted felon in violation of if: employment parole. his A) property damage, personal inju- Moreover, place the entire chase took ry, or operation death arises from the less than minutes. two The officers’ deci- or a use of motor-driven vehicle or sion pursue part Atkins play did not a equipment; motor-driven bringing about accident. Atkins had B) employee personally would be decided to run for it before officers according liable to the claimant to Tex- began pursuit. ever law; Proximate is an essential element 2) personal injury and so death caused negligence. of actionable & Payne Keller by a or personal condition use of tangible Industries, v. P.P.G. property real property govern- or if the (Tex.1990). Therefore, summary judg- would, mental private per- unit were it a ment in favor of the must affirmed son, be according liable claimant if City’s summary judgment evidence Texas law. that, law, police shows as matter of a (em- Tex.Civ.PRAC. & Rem.Code 101.021 proximate officers were not cause of the phasis supplied). accident. See Gibbs v. Motors General It plain follows from the language of Corp., I S.W.2d be- section 101.021 that the City’s liability un- City’s lieve that evidence establishes der depends personal TTCA on the lia- this as a matter of law. bility police Carpenter, its officers. Dallas, In Dent v. 102; S.W.2d Wyse, 228; 114 (Tex.App. ref’d — Dallas Dent, 729 at 117. Because there is n.r.e.), the court examined the issue of a a fact pertaining issue to the officers’ lia- police officer’s to an innocent third bility, judgment appeals court party injured who is killed in accident must ground be reversed on this as well. involving suspect being pursued by * * * * * * police The court officer. held that sole foregoing reasons, For the I concur in accident, proximate cause as a mat However, judgment. I respect- Court’s law, suspect’s negli ter of grossly fully portion dissent the opinion gent fleeing behavior in from the respondents which holds that have failed to by ignoring officer and all traffic laws dur preserve error the issue of official im- ing flight until he crashed into the munity City’s liability under the case, decedent. at 116. In this Id. TTCA. appeals looked to instruc Dent that, tion and determined as a matter of PHILLIPS, C.J., GONZALEZ,J., join law, these, circumstances concurring opinion. in this proximate cause of officers are COOK, Justiсe, refinement, dissenting. injuries. With reasoning of court of followed the case, I respectfully dissent. In this Dent. are entitled and, prevail as a matter of there- law officers were not a fore, appeals’ holding the court of other- should cause the accident.
106 wise, representatives steps necessary to take to ignores the Court substantial authori- recognizes drivers, jurisdictions ty rid our streets of drunken role electing pur- that an officer’s conduct of the men women blue has become is sue lawbreaker important. Unfortunately, even more injuries resulting from the law- cause of significant pursuits number of hot involve negligence. See United v. States breaker’s trying DWI-drug arrest. drivers to avoid a Hutchins, (6th Cir.1959); 69, 268 F.2d 72 Operational See Planning Section Fidelity v. Virginia State West Patrol, Study Pursuit Highway California N.Y., 88, Casualty Co. F.Supp. 90- 263 (1983). By discouraging 72 (S.D.W.Va.1967); Pagels v. 91 add to this fugitives, these the Court would Francisco, County San Cal.App.2d 135 already overwhelming problem. 152, 153-56, 877, (1955); P.2d 286 878-79 nearly thirty-six Additionally, million Draper Angeles, 91 v. Los Cal. Americans were victims of serious crimes 315, (1949); 318, 46, App.2d 205 P.2d 48 1989, nearly including nineteen thousand 10, Horne, 198 City Miami v. 12- So.2d Fire, Cops Witkin, Under murder victims. (Fla.1967); Camp, v. 113 Downs 13 Ill. 3, 1990, Report, & World Dec. U.S. News 221, (1969); 227, 46, App.2d 252 N.E.2d 50 1990, report In the first months of 33. six Bailey v. Edison Foun- L.W. Charitable by percent increased ten ed violent crimes dation, 460, 466, 284 N.E.2d Ind.App. 152 period previous comparable over the Shore, v. 141, (1972); Thornton 145 233 Id. year. 753, 655, 737, (1983); P.2d 668 Kan. 666 Furthermore, immunity protects Co., v. Milk Chambers Ideal Pure 245 in this police officers under the facts Oberkramer 589, (Ky.1952); 590-91 important It case. remember Ellisville, 440, v. 442 706 only thing sepa- line thin blue is the Kearny, Town Blanchard v. (Mo.1986); jungle from the 464, rates each of us 246, 248, N.J.Super. 465 145 367 A.2d society. Timberman, overtaking To (Law Div.1976); increasingly our Roll v. 94 281, 530, 536, their con- N.J.Supеr. officers liable for 229 A.2d 284 hold (1967); City Albuquerque, v. make them 94 duct this case would be Silva 219, damage (Ct.App. negligent N.M. 610 P.2d the insurers State, 108 A.D.2d 1033, 1980); Mitchell v. our laws. The by those who violate caused 97, Simmen 1034, (1985); N.Y.S.2d this state should not be officers of State, 400, 398, 442 N.Y.S.2d v. drug 81 A.D.2d conduct of for the liable State, v. (1981); Stanton dealers, drivers, felons. and other drunken 612, 612-14, 285 967- A.D.2d N.Y.S.2d State, v. Wrubel (1967); Misc.2d (Ct.Cl. 879-81, 174 N.Y.S.2d 689-90 Newton,
1958); N.C.App. McMillan v. (1983); Jack- 306 S.E.2d Olson, 41, 44-47, Or.App.
son P.2d 130-31 Roger and Allan L. BACON abandon requires officers to Court Petitioners, Shannon, P. instinct, training experience while legally
attempting perform their im- required posed Police officers are duties. INC., DEVICES, Respondent. GENERAL in performing their discretion to exercise No. D-2304. opinion de- Court’s will police duties. The willingness to execute their officers’ ter of Texas. Supreme Court with decisiveness office June public required for the welfare. Ameri- of innocent year Each thousands Be- drivers. killed drunken
cans are by our elected of the lack of action