99-00216 Hanks v City of San Antonio.wpd No. 04-99-00216-CV

Maria Dolores HANKS, Felix Medina, Jesse Medina, Juanita V. Luna, Phillip Lopez and Tony Lopez, Individually and on Behalf of the Estates of Dan Medina and Susie Medina,

Appellants v. CITY OF SAN ANTONIO and Galdino Villanueva, Jr., Appellees From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 96-CI-11590 Honorable Carol R. Haberman, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 22, 1999

REVERSED AND REMANDED

This suit arises out of a deadly automobile collision involving an on-duty police officer responding to an emergency call. The appellants, representatives of the estates of Dan Medina and Susie Medina, brought a wrongful death and survival cause of action against the City of San Antonio and San Antonio police officer Galdino M. Villanueva, Jr. (collectively appellees). The trial court granted appellees' motion for summary judgment on official immunity. Appellants contend the summary judgment was improperly granted. Because an underlying fact issue exists, we must reverse the summary judgment and remand the case for further proceedings.

Background

Before midnight on May 11, 1996, Officers Villanueva, McCann, McBlain, Westmoreland, and Reeder of the San Antonio Police Department were at the Diamond Shamrock Service Station on Zarzamora. Officer Villanueva heard dispatch give a code-three emergency call, "2111 West Houston, Officer in trouble. Clearing all but Central." Officer Villanueva notified the dispatcher that he was en route to the location of the reported incident. Appellees contend he activated his patrol car's emergency lights and sirens seconds after leaving the service station. However, appellants offer the deposition excerpt from a witness who heard no sirens and saw no lights on Villanueva's vehicle prior to the accident.

Officer McCann was the first to enter Zarzamora Street, with Officer Villanueva being the second unit, Officer McBlain the third and Officer Reeder the fourth. All four vehicles were proceeding north on Zarzamora in response to the "officer in trouble" call. Zarzamora is a four lane, two way street without a turning lane. Ceralvo is a two lane street with no center dividing line. The speed limit on both streets is thirty miles per hour. Santos Flores was driving a 1994, 4 door Dodge passenger car in an easterly direction on Ceralvo. He had three passengers in the car, Martha Flores, Dan Medina, and Susie Medina.

Officer McCann drove through the Zarzamora/Ceralvo intersection first, followed by Officer Villanueva's vehicle. Officer Villanueva's vehicle collided with the right side of the Flores vehicle. There is conflicting evidence as to whether Officer Villanueva or Flores had a green light. Martha Flores, Dan Medina, and Susie Medina were killed in the accident.

Maria Dolores Hanks, Felix Medina, Jesse S. Medina, Juanita Victoria Luna, Phillip Lopez and Tony H. Lopez filed suit individually and on behalf of the estates of Dan Medina and Susie Medina against the City of San Antonio and Galdino M. Villanueva, Jr. Villanueva and the City of San Antonio moved for summary judgment based on official immunity from both suit and liability. The trial court granted both motions. Appellants now appeal the trial court's order granting summary judgment.

Standard of Review

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. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex. 1985). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the nonmovant; every reasonable inference from the evidence will be indulged in favor of the nonmovant, and any doubts will be resolved in his favor. Nixon, 690 S.W.2d at 549.

A defendant may show entitlement to summary judgment by conclusively proving all elements of an affirmative defense. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). Appellees were granted summary judgment based on the affirmative defense of official immunity. A police officer is entitled to official immunity for the performance of discretionary duties within the scope of his authority, provided that he acts in good faith. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). Appellants do not contest that Officer Villanueva was performing a discretionary duty within the scope of his authority. Thus, the only issue is whether appellee's summary judgment evidence conclusively established that Officer Villanueva was acting in "good faith" in responding to the emergency call. See id. at 466; Beatty v. Charles, 936 S.W.2d 28, 30 (Tex. App.-San Antonio 1996, no writ).

Analysis

Good faith in official immunity cases is measured against a standard of objective legal reasonableness, without regard to the officer's subjective state of mind. City of Lancaster v. Chambers, 883S.W.2d 650, 656 (Tex. 1994). To be entitled to summary judgment, an officer must prove that a reasonable prudent officer, under the same or similar circumstances could have believed that the action taken was justified. Id. at 656-57. The officer does not need to prove that it would have been unreasonable to take a different action; nor must the officer prove that all reasonable prudent officers would have acted as he did. Id. at 657.

To establish good faith, appellees rely on Officer Villanueva's affidavit, an eye-witness affidavit, and an expert witness affidavit. Officer Villanueva's affidavit described the circumstances in which he received the dispatcher's code three call and his belief that he had the right of way. He knew the dispatch indicated an officer was in distress and required an immediate emergency response. He believed he had a green light at the intersection of Zarzamora and Ceralvo and was operating his car as an emergency vehicle with lights and sirens. The appellees' supporting witness's affidavit concurs that Officer Villanueva went through a green light at the Zarzamora/Ceralvo intersection and was operating his lights and siren.

In response, appellants directed the trial court's attention to deposition testimony from two witnesses, Elsie Sanchez and Jose Sanchez, who both contend that Villanueva had a red light at the intersection and Flores had a green light.

Witness Elsie Sanchez:

Q. Okay. Mrs. Sanchez, do you recall-if that little car that you said you saw at the intersection that went through that was struck by the police officer, do you recall whether or not it had a red or a green light?

A. It had a green.

Q. And are you sure of that?

A. Yeah. I'm sure of it.

Witness Jose Sanchez:

Q. Okay. now you said probably. Do you-that was my next question. Did the police officer have the green light from-

A. The first one.

Q The first one did? Okay. How about the second that was involved in the accident?

A. The second one, no sir. No sir.

Jose Sanchez also testified that Villanueva was not operating his light and sirens prior to the collision:

Q. You could hear it coming down Zarzamora?

A. Yes, sir.

Q. You could hear-

A. I could hear the speed, but I didn't hear no sirens. That's the second car.

Q. Right.

A. But I didn't hear no sirens and I didn't see no flashing lights. Like usually you see them on the courts when they're coming.

Q. Uh-huh.

A. And at that time, the second car didn't have no siren nor flashing lights.

Q. Were you absolutely positive of that?

A. Yes, sir.

Appellees' expert witness concludes that Villanueva's actions were reasonable, discretionary, justified, and necessary. In his opinion, any reasonable law enforcement officer in the United States could have believed that the need to respond outweighed the risk involved in this case. He based his conclusions on a variety of sources including the accident report, witness statements, depositions, police guideline materials, police reports, an accident reconstruction, and toxicology reports.

Appellees' summary judgment evidence does not adequately substantiate Officer Villanueva's and their expert's conclusions about the existence of good faith. Summary judgment may be based on the uncontroverted testimony of an expert witness but only if it is clear, positive, and direct; otherwise free from contradictions and inconsistencies, and readily controvertible. Wadewitz, 951 S.W.2d at 466. The expert testimony must address what a reasonable officer could have believed under the circumstances and that testimony must be substantiated with references to each aspect of the Chambers balancing test. Wadewitz, 951 S.W.2d at 467; Hale v. Pena, 991 S.W.2d 942, 945 (Tex. App.-Fort Worth 1999, no pet.); Clark v. University of Houston, 979 S.W.2d 707, 711 (Tex. App.-Houston [14th Dist.] 1998, no pet.). Mere conclusory statements by an expert that a reasonable officer could have taken the same action is insufficient to meet the summary judgment burden. Pena, 991 S.W.2d at 944.

Under Chambers, good faith is measured by how a reasonable prudent officer could have assessed both the need to which an officer responds and the risks of the officer's course of action, based on the officer's perception of the facts at the time of the event. Chambers, 883S.W.2d. at 657. The "need" refers to the urgency of the circumstances requiring police intervention. Wadewitz, 951 S.W.2d at 467. Need in an emergency response is determined by such factors as the seriousness of the crime or accident to which the officer responds, whether the officer's immediate presence is necessary to prevent injury or loss of life or to apprehend a suspect, and what alternative course of action, if any, is available to achieve a comparable result. Id. at 467. Conversely, risk "refers to the countervailing public safety concerns: the nature and severity of harm that the officer's actions could cause (including injuries to bystanders as well as the possibility that an accident would prevent the officer from reaching the scene of the emergency), the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonable prudent person." Id. at 467.

The need to which Officer Villanueva responded was a code three "officer in distress" emergency dispatch call that required an immediate response. According to appellees' expert consideration of the risk was evidenced by his use of the emergency equipment, lights, sirens and the blow horn, his estimated traveling speed, the viability of alternative routes, consideration of road conditions, by driving in the inner lane and permitting traffic to move to the right, and by virtue of his training.

Appellees' expert begins his analysis with the conclusion that Officer Villanueva utilized all his emergency equipment shortly after responding to the dispatch call. Appellants' witnesses offered conflicting testimony. In addition, appellees' expert addresses the needs and risks of Officer Villanueva's actions without addressing whether or not he had a red or green light and whether that requires any different police action or considerations. Because we must view the evidence in the light most favorable to the nonmovant, appellant must show as a matter of law that a reasonable prudent officer could have believed his actions to be justified if the light was red. Pena, 991 S.W.2d at 945. Appellants' summary judgment evidence fails to analyze "the degree, likelihood and obviousness of the risks" created by driving the patrol car through the red light. Id. at 945. Unresolved material fact issues preclude summary judgment. Cf. City of San Antonio v. Garcia, 974 S.W.2d 756, (Tex. App.-San Antonio 1998, no pet.)(Fact issue as to whether defendant exhibited hostile behavior leading to his arrest prohibited summary judgment based on official immunity); Martinez v. Mikel, 960 S.W.2d 158, 160 (Tex. App.-San Antonio 1997, no pet.)(Fact issue as to whether individual's hands were in his pockets when he failed to immediately respond to directions, so that reasonably prudent officer would have perceived need to use deadly force, or were merely at his side, precluded summary judgment based on official immunity).

To controvert appellees' expert, appellants offered the deposition testimony of Deputy Chief Albert A. Ortiz who stated that if the jury did not believe that Villanueva had his sirens on, his emergency lights activated, and a green light, then he was in violation of police procedure. Because there remains a disputed fact issue, whether the light was red or green and whether Officer Villanueva was operating his lights and sirens in advance of the accident, we need not reach the issue of whether the appellants' deposition testimony is competent summary judgment evidence. See Garcia, 974 S.W.2d at 758.

Appellees argue that the underlying factual disputes should not prevent summary judgment because the proper focus of our inquiry is on the officer's perception of events at the time of the incident. However, we have previously held that even a generous interpretation of Wadewitz and Chambers does not suggest that summary judgment would be proper when an officer's perception of the facts squarely conflicts with eye-witness testimony. Mikel, 960 S.W.2d at 160.

We note that the facts surrounding the officer's actions were not at issue in Wadewitz or Chambers. Further, such an interpretation of these cases would amount to the recognition of absolute immunity and would contradict the well-established rules which guide our review of a summary judgment order.

Id.

After reviewing all the summary judgment evidence under the appropriate standard, we conclude that the evidence does not establish as a matter of law that a reasonably prudent officer under the same or similar circumstances could have believed that proceeding through the intersection was justified. The inconsistencies in the underlying summary judgment evidence as to whether Villanueva ran a red light or was operating his lights and sirens prior to entering the intersection create genuine issues of material fact. Therefore, appellees failed to establish as a matter of law that Villanueva acted in good faith. Because the summary judgment evidence creates genuine issues of material fact about his actions, appellees were not entitled to summary judgment on the affirmative defense of official immunity from suit. The judgment of the trial court is reversed, and this cause is remanded for further proceedings.

Tom Rickhoff, Justice

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