Wadewitz v. Montgomery

conveys “first” opinion the court’s

jury should guilty they find Hernandez so

could receive charge. the “second” He ar-

gues that this amounted to a comment on the

weight evidence, depriving him of the

presumption of innocence denying him a

fair trial.

Because Hernandez has authority cited no support contention, this he has waived the Tex.R.App.P.

point. 74(f); see also DeBlanc State, 701,

v. 706 (Tex.Crim.App.1986), denied, 1259, rt. 501 U.S. 111 S.Ct. ce 2912, (1990); 115 L.Ed.2d 1075 v. Hefner

State, 608, (Tex.App.— 626-27 ref'd). 1987, pet.

Dallas point We overrule

three.

CONCLUSION

Having only concluded that the court’s er- Hernandez,

ror did not harm we affirm the

judgment. WADEWITZ, al.,

William Appellants, et MONTGOMERY,

Dallas al., Appellees. et

No. 10-95-049-CV. Appeals Texas,

Court of

Waco.

Jan. 1996.

Rehearing Overruled Feb.

241

OPINION CUMMINGS, Justice. interlocutory appeal This is an from the denial of trial court’s a motion for 1, 1993, judgment. car patrol On June by driven William the Officer Wadewitz of Department Waco Police collided with containing appellees, automobile the Dallas Montgomery. Appellees and sus- Michelle and, injuries consequently, tained Offi- sued Waco, cer and the Wadewitz personal appellants, injury in a Appel- suit. summary for judgment lants moved two on first, grounds; they conclusively that proved summary judgment in their that evidence Officer Wadewitz entitled to the affirma- second, immunity, tive of official defense and immunity that Wadewitz’s Officer city liability, provided shielded the from Through the Texas Tort Claims Act.1 two points Appellants argue of error summary trial in denying court erred their judgment regard motion to both Officer City. and We affirm. The evidence estab- 1, 1993, lishes June that on Officer Wadewitz was investigating burglary the scene of a previous day had occurred the aat on Valley business located the comer of Mills Drive and Greer Drive in Waco. While process of conducting investigation, his dispatched he was assist another was responding report who to a of a progress theft in in the 1400block of Colum- Avenue, bus also Waco. that,

Officer Wadewitz first decided due call, dispatch nature he would Cameron, C. Moody, Keith Steve L. Ña- proceed Then, on be- basis. man, Howell, P.C., Waco, Lee, Smith & for car, patrol moving fore his he determined appellants. his own the route he would take to Holmes, Belton, F. Jack appellees. reported scene: crime he would drive south- Drive; bound on turn Greer left onto seven- THOMAS, C.J., Drive; Before Valley proceed and CUMMINGS lane Mills eastward VANCE, and Drive; JJ. Valley until he reached Waco applicable portion (A) 1. property damage, personal injury, of the Texas Tort Claims provides Act as follows: operation death from the arises or use equip- vehicle governmental motor-driven ment; or motor-driven A unit in the state is liable for: (1) property damage, and personal injury, and (B) employee proximately personally wrongful death would be liable caused act or omission or the of an to the claimant under Texaslaw [.] em- ployee acting (Vernon scope employ- § within his 101.021 & Rem.Code Ann. Tex.Civ.Prac. 1986) added). ment if: (emphasis Drive; judgment proof turn onto continue north- whether the estab left Waco Drive, parallel there which runs lishes as a matter of law that bound on Waco Avenue, approached genuine as to until he issue material fact whether Columbus Drive; and turn established all the ele block Waco then defendant has street, right yet-undetermined affirmative defense. Gibbs v. on a side ments Corp., him to which would take Columbus Avenue. General Motors (Tex.1970). Wadewitz, activating after his emer- Officer siren, horn, lights, gency and air arrived an affirmative Official successfully at the intersection of and Greer defense, such, the burden is on surveyed Valley for on- Mills. He road all defendant to establish of its elements. coming traffic. Mills Drive has three Kennedy, Montgomery v. going lanes of traffic in each direction with (Tex.1984); I Perry Texas A & 310-11 v. only lane in the middle. The vehicle left-turn Univ., 106, (Tex.App. 110 737 S.W.2d —Cor noticed in the west- Officer Wadewitz three n.r.e.). 1987, 'd pus Christi writ ref Govern bound lanes was a truck in the middle of employees entitled to official immu ment are proceeded to three lanes. He then cross nity arising performance from suits from the passing in lanes. After three west-bound (1) discretionary acting of their duties while truck, vehicle, Appellee’s front which of (3) (2) they good long in faith as are within travelling had in of the the innermost been authority. scope City Lancas of their of truck, lanes three west-bound and behind (Tex. 650, 653 ter v. 883 S.W.2d patrol car. collided with Officer Wadewitz’s 1994); Safety, Pub. Wyse Department v. of summary Appellants their motion for filed 1986, 224, (Tex.App 733 S.W.2d 227 . —Waco judgment grounds sov- of official and n.r.e.); Story, ref v. 621 writ 'd Baker S.W.2d denied, ereign immunity. The motion was 1981, 639, (Tex.Civ.App. Antonio 644 — San timely brought this Appellants interlocu- n.r.e.). writ ref 'd tory appeal. & Rem.Code Ann. Tex.Civ.PRAc. in dispute; one and three are not Elements 51.014(5) (Vernon (authorizing § Supp.1996) Appellees concede that Officer Wadewitz was interlocutory appeal of a denial of a motion discretionary performing a act and that for on an assertion based scope acting employ- of his was within the individual). immunity by of an only question is ment. The whether he reviewing applies A court the same acting good in faith. judg summary to standard the denial we Officer Wa- How do know whether City granting ment to of one. of City in faith? In Lan dewitz acted Whitman, 14-94-291-CV, v. No. Galveston Supreme Court caster v. enun Chambers — S.W.2d —, —[1995 slip 3 op. at WL good faith ciated a test to ascertain when Dist.], Au (Tex.App. 472322] [14th —Houston a to continue or officer makes decision either n.w.h.) 1995, 10, City gust (citing Houston suspect pursuit of a criminal discontinue (Tex.1993)). Kilburn, To v. 849 S.W.2d 810 attempting to evade arrest. The test who summary prevail judgment, on motion provides: showing movant has the burden pursuit in a An acts in faith officer no material fact and that there is issue of prudent reasonably if under case law. judgment to as a matter of entitled circumstances, or similar could the same disputed there is a deciding Id. In whether immediately have believed that need judg precluding summary fact material issue outweighed a apprehend suspect clear ment, to the non-movant evidence favorable public continuing in risk of harm to the every will taken as true and reasonable pursuit. in favor. resolved the non-movant’s inference Co., rule of law does not Management 690 Id. at 656. While this Property Nison v. Mr. hand, (Tex.1985). it 546, directly at we find to be a de fit the facts S.W.2d 548-49 When Beverly v. See Hills summary judgment on instructive. fendant moves for (Tex. Guevara, 901, defense, 902-03 granting we affirmative review n.w.h.) 1995, (applying test App. Waco, judgment or denial of determine — injured police allegedly questioning officer who had would involve whether Officer him); handcuffing while v. negligently someone Murillo had and that acted Garza, 199, (Tex.App. 881 S.W.2d undertaking a negligence is not a factor in —San 1994, writ) (applying city no Antonio test to analysis. Chambers engineer traffic to in who had decided not Insofar as not com Chambers does signal stall a traffic at an intersection where pel police guilty of bad us find a officer occurred); City an accident later Dallas negligently, Appellants faith when he acts Books, Records, Inc., Magazines, Price Half However, the does are correct. conclusion (Tex.App. —Dallas place has in the follow no writ) (applying firing no to officer at test Chambers formula. us to Chambers directs suspect). fleeing “reasonably prudent what a officer” look at purpose The behind in the test would do under the circum same similar preserve is to Chambers the official immuni determining stances whether acted in ty long officer as as he is faith; reasonably if prudent bad performing any his designated duties and action, would have chosen the same course of reasonably prudent officer could have be then the officer will be found to have that the perform lieved need of the officer to Id. use of a “reasonable question, they might the duties whatever conducting analysis in ness” standard the be, outweighed the undeniable but unavoid necessarily implicates neg a of consideration danger public able to the at the time. See ligence. Whenever someone act rea fails to Chambers, 883 656. S.W.2d at This rationale does, in sonably anything may he be said he fits Accordingly, the facts here. Officer Wa- negligently. to have acted Under may said, law, dewitz be aas matter of to however, a officer does not waive his good in if reasonably pru have acted faith a merely neg because he acts officer, dent under the same or cir similar ligently. Id. at 656-57. cumstances, could have believed that the immediately respond need to to out his call po The a Chambers test allows weighed the clear risk harm public of to the in deciding lice officer wide latitude how to when he drove across the west-bound lanes perform discretionary duties and toler of Valley despite Mills having Drive a great negligence ates a amount of in the clear of view the traffic.2 To have contro performs in which manner he them before he Appellants’ summary verted judgment proof will found to have acted in Id. be bad faith. faith, good Appellees on must have shown negligence One can envision the amount of reasonably more that prudent than a officer something scale, sliding on tolerated like a could have to decided not drive the into on the of reasonableness left side street; they must have shown that no rea scale; eventually with reasonableness blend sonably prudent officer in Officer Wadewitz’s middle; ing negligence into somewhere in the position thought could have were the facts then, right, to continuing move to the they justified such that his actions. Id. at presence in with the reasonableness 657. negligence range completely disappearing, an

Appellants leaving right area at the extreme end of contend that Officer Wa- “Complete decision that could called Ab dewitz’s to enter Drive scale be Only when he did not a sence of Reasonableness.” have clear view of the when oncoming traffic part range should not be our officer’s actions fall into this right consideration as to whether he in bad extreme end of the scale will the officer responding dispatch faith in to call on be to in Id. at found have acted bad faith. (“[The They 656; inquiry June 1. such assert that an id. at 657 n. 7 ] see Chambers Appellants argue Appellees quarrel 2. Officer Wadewitz must route basis. do not with the to pro- be found have acted in a faith because Officer Wadewitz chose or his to decision basis; reasonably prudent emergency officer could have chosen the an ceed on their concern has operat- always same route did to the crime scene on Colum- been with the manner in which he reasonably prudent patrol following bus Avenue and that a officer ed his car in on an route proceed emergency could have chosen to on an basis.

244 recklessly as to free to act as analogous the abuse of discre- then

standard appel- reported driving utilized in crime tion standard review wanted to reviewing trial court late court when certain This Avenue. contention scene on Columbus only rulings; is shown an abuse of discretion obviously cannot be true. reasonably

if the trial court could not have question.”) in In other the decision reached An to undertake a officer’s decision words, negligent officer could have been high not auto speed chase at a rate does undertaking disputed activity, in even matically acting he will mean that according reasonably prudent to a throughout the duration the chase faith reasonably prudent long offi- but some instance, completion. For if an offi until its have that the officer’s cer “could believed” at properly cer decides the initiation justified the circum- actions were under reasonably follow a sus chase that could stances, then the officer will not be found high speed, pect a rate of the officer most at 656-57; Id. at see have acted bad assuredly will not be found have acted (if compe- at of reasonable id. officers then, properly if he miles down the several issue, immunity disagree on tence could road, per hour in miles decides to drive 85 (citing Malley v. recognized should be elementary front of school as the students 335, 341, Briggs, U.S. S.Ct. day. leaving at are classes the end (1986)). 89 L.Ed.2d 271 arising throughout Different circumstances faith may only be found to have acted suspect high-speed pursuit of a the officer’s absolutely no if there is reasonable basis constantly him re-evaluate his will force Therefore, Appel- Id. his decision. at decision to continue the chase. See Cham place has argument lants’ bers, (“Beyond the initial 883 S.W.2d at analysis in the is misdirected.3 Chambers chase, speed engage high in the decision to necessarily implicated in Negligence pursuit discretion involves officer’s alone, test, it, although not answer does levels, including, of which number different question in in whether the officer followed, speed, at what route should be faith.4 for, back-up closely called and how should be Appellants also contend that pursued.”). fleeing vehicle should the question on the of bad only relevant issue pro- to Officer Wadewitz’s initial decision properly is faith whether Officer Wadewitz emergency on an ceed to Columbus Avenue initially deciding in his discretion exercised did not basis and follow the route chose call, proceed on respond dispatch to the to to automatically be found to mean that he would basis, and follow the route emergency an throughout jour- in faith his that, have acted picked They assert so in his mind. ney. required to the condi- He was evaluate long reasonably prudent as officer could a decision, journey they One of tions of his arose. this Officer Wadewitz have made 6701d, by immunity been waived a Appellees section whether official has contend that article 3. Statutes, 24(e), officer, inapposite. obli police the Revised Civil which is of Id. emergency gates drivers of vehicles drive safety persons regard on the due for the of all Appellants to this court’s decision Car 4. cite road, necessarily negligence an of makes element Barner, (Tex.App. penter S.W.2d 99 v. 797 —Waco 1971, 27, April analysis. of the Chambers Act 1990, denied), proposition for the that the writ 722, R.S., 83, Leg., Tex.Gen.Laws 62nd ch. 1971 negli immunily protects doctrine all official (current Tex.Teansp.Code at 727-28 version Ann. gent This police officer. reliance is acts (Vernon Pamph.1996)); City § see 546.005 of Carpenter acknowledges misplaced. that While Chambers, 650, 656 n. 5 v. 883 S.W.2d Lancaster negligently may perform his duties an officer court, however, (Tex. 1994). ex The Chambers waiving immunity his official without fear of d, 24(e), pressly that 6701 section ruled article defense, grant license to it does not an officer addressing driver issue of whether the while any perform in reason. his duties without basis negligently an vehicle has acted of Moreover, Carpenter at was address Id. 101-02. nothing appli grossly negligently, says about the ing officer in its case the issue of whether the cability immunity doctrine to the of the official act, discretionary Chambers, performing whether was a at n. 5. 656 driver. 6701d, Therefore, any upon performed bad faith. Id. at sec the act in reliance article he had test, 24(e), which to the Chambers tion in relation 101. determining purpose solely of for the test

245 (Vernon 1986); § these conditions was the state of the traffic & 101.021 Ann. Rem.Code Hills, Valley 902; to City Beverly Drive before he decided 911 at see S.W.2d of Books, 376; its cross west-bound lanes from Greer Drive. 883 S.W.2d at Car Half-Price Barner, (Tex. argument penter 99, Appellants’ v. 797 101 Officer Wadewitz S.W.2d denied). App. Appellants’ in good must have acted faith at the of writ time —Waco points simply judg the collision two of error are overruled. The proper- because he acted ly journey ment affirmed. began when he first his is without merit. Justice, VANCE, dissenting. response In their Appellants’ mo presents appeal question: This What judgment, tion Appellees sub by of level conduct an officer will be exam- mitted to the trial court affidavit from ined determine if is entitled to Ramsey, police Dan a former officer in the in good because he acted Temple Department Police who had investi faith? gated between to 5000 automobile acci majority focuses dents, Officer Wadew- who had of received over hours itz’s conduct at Valley the intersection of specialized training in the of area accident Drive, Mills Drive and Greer rather than his reconstruction, who was certified Collision action, overall course of to find a fact issue by Department Reconstruction the Texas of about It relies on the assertion Safety, Public and who had been certified expert reasonably prudent that “no Specialized Driving Performance Instructor police under the same or cir similar vehicles Texas A M& Universi cumstances could have entering believed that that, ty. Ramsey stated reviewing after the inside any lane when he could not see accident, scene of damage to the traffic, possible outweighed the clear risk of vehicles, the depositions of Officer Wa- public entering harm to the that lane when dewitz and Dallas Montgomery, it I inquiry did.”1 believe that this is too opinion reasonably no prudent police thus, and, narrow principles violates the officer would have entered the innermost Lancaster Chambers and frustrates west-bound lane of Mills Drive the immunity. City the function of official way Officer Wadewitz did on June (Tex. Lancaster v. Appellants offered ev 1994). idence that Officer Wadewitz had acted rea sonably crossed, when he without a clear Perhaps “reasonably prudent the officer” traffic, view of the the three west-bound formulation good-faith of the Chambers test Valley lanes of Ap- Mills Drive on June should be recharacterized.2 Id. at 656. It pellees’ Ramsey affidavit from was more appear “necessarily implicate can a consid- than sufficient to controvert Appellants’ as of negligence,” majority eration states sertion in summary judg their motion for recognizing immunity while that official ment Officer good Wadewitz acted in just negligently. not waived because one acts faith at time of See accident. Cham Perhaps majority saying negli- bers, Accordingly, 883 S.W.2d at 657. gence conclusively does not establish bad trial court did not err in denying Appellants’ so, faith but is evidence of bad If I motion. believing disagree, entirely that the two are concepts. “Despite similarity different be- Appellant’s We need not consider second [good gener- tween this standard and a faith] point of concerning City’s error claim of test, negligence al equivalence should be sovereign immunity because have we de implied.” Id. at 656 n. 5. clined to find as a matter law that Officer protection Wadewitz was immunity entitled under policy Official is a doctrine that immunity the official government doctrine. Tex.Civ.PRAC. employees liability relieves for deposition expert mind; question 1. At a said that his criti- 2. Good faith is of state of inquiry hypothetical asks what a negli- cism of Officer officer could Wadewitz that was hand, Negligence, have on gent entering believed. the other lane third compared hypothetical focuses on conduct to the Drive when he did. "reasonable-man” standard. instances. Those their some

injured performance of discretion- during the

ary by a officer mil almost duties

always specific to point be to some able took or failed take.

action that the officer act, specific rath-

If we focus whether conduct, is the than the overall course of

er good faith must

basis on which officer’s tested, will cease be a

meaningful public policy. fact that The mere

something happened as a result proof that

officer’s conduct will be is not entitled to offi-

lacked faith and immunity.3

cial

Examining question of whether Officer faith when deter- proceed basis and

mined to take in the route he would

then determined received, that he had

responding to the call conduct, I agree with

ie. his overall course of summary judgment

Appellants that the evi- conclusively establishes that did.

dence notes, Appellees majority even the do

As the quarrel those decisions Officer

Wadewitz. Appellants’ points of

I would sustain the

error, denying vacate the court’s order trial summary judgment, and enter

the motion for Appellants on immunity.4

grounds of official BURGESS, Appellant,

James Mary JARAMILLO

Maria Lourdes a/k/a Jaramillo, Appellee.

Lou

No. 02-95-158-CV. Texas, Appeals

Court

Fort Worth. 11, 1996.

Jan. 15, 1996.

Rehearing Overruled Feb. City of Waco and Officer protect Qualified “all but the 4. Both the acts knowingly benefit of the official immuni are entitled plainly incompetent those who vio County, S.W.2d ty. DeWitt Harris Lancaster v. late the law.” (Tex. 1995). (Tex. 1994).

Case Details

Case Name: Wadewitz v. Montgomery

Court Name: Court of Appeals of Texas

Date Published: Feb 14, 1996

Citation: 914 S.W.2d 239

Docket Number: 10-95-049-CV

Court Abbreviation: Tex. App.