Christopher Green v. Dwainia Alford, Individually and as Next Friend of Aaron Alford and Ronald Alford

Appellees= Motions for Rehearing En Banc Granted; Opinion of March 27, 2007 Withdrawn; Affirmed and Majority, Concurring, and Dissenting Opinions on En Banc Rehearing filed July 15, 2008

Appellees= Motions for Rehearing En Banc Granted; Opinion of March 27, 2007 Withdrawn; Affirmed and Majority, Concurring, and Dissenting Opinions on En Banc Rehearing filed July 15, 2008.             

In The

Fourteenth Court of Appeals

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NO. 14-05-00407-CV

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CHRISTOPHER GREEN, Appellant

V.

DWAINIA ALFORD, INDIVIDUALLY AND AS NEXT FRIEND OF AARON ALFORD, AND RONALD ALFORD, Appellees

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 2002-53991

C O N C U R R I N G   O P I N I O N  O N  E N   B A N C   R E H E A R I N G

I join in the en banc court=s judgment, but I respectfully disagree with both the majority=s description of the legal standard applicable to the official immunity analysis and the majority=s decision to address whether the record contains sufficient evidence that no reasonable person in Green=s position could have believed that the facts justified his conduct.

                    Legal Standard Applicable to Official Immunity Analysis

In his first issue, Green argues that the trial court erred by denying his motion for judgment as a matter of law.  In that motion, Green asserted that the evidence at trial conclusively proved his defense of official immunity.  To sustain this issue, this court would have to conclude that the evidence at trial conclusively proved that Green acted in good faith.^[1] To determine whether Green acted in good faith, this court must use the objective standard adopted in City of Lancaster v. Chambers^[2] and ask whether a reasonably prudent official, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when he engaged in the conduct.^[3]

Good faith depends on how a reasonably prudent official could have assessed both the need to which the official was responding and the risks of the official=s course of action, based on the official=s perception of the facts at the time of the event.^[4] The Aneed@ aspect of the test refers to the urgency of the circumstances requiring an emergency response, and need is determined by factors such as the seriousness of the incident to which the official is responding, whether the official=s immediate presence is necessary to prevent injury or loss of life, and what alternative courses of action, if any, are available to achieve a comparable result.^[5] The Arisk@ aspect of good faith, on the other hand, refers to the countervailing public safety concerns: the nature and severity of harm that the official=s actions could cause (including injuries to bystanders as well as the possibility that an accident would prevent the official 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 reasonably prudent official.^[6] If the record contains conflicting evidence regarding the circumstances upon which this objective determination of good faith is based, then, for the record to show good faith, it must contain evidence that proves good faith under the above legal standard based on the circumstances^[7] and the official=s conduct shown by the legally sufficient evidence favorable to the claimant.^[8]

                                       The Official Immunity Analysis

The evidence presented at trial would enable reasonable and fair-minded people to find that the following circumstances existed when Green entered the intersection:

$        Green was responding to an automatic fire alarm at a building approximately one-half mile from the fire station, and the overwhelming majority of automatic fire alarms are false alarms or do not require the immediate presence of a firefighter; 

$ Green has suffered from keratoconus, a progressive eye disease, since at least 1995;

$ Approximately ten months before the collision, Green reported to his doctor that he experienced decreased distance vision and blurring, and he refused a special contact lens prescription due to his job as a firefighter;                                                    

$ On December 9, 2002, Green reported to his eye specialist changes in his visual acuity; he had blurring of his vision and experienced difficulty watching television;

$ At the time of the accident, Green was driving the fire truck in violation of a restriction on his driver=s license that required him to wear corrective lenses while driving;

$ Other firefighters were available to drive the fire truck;

$ When Green entered the intersection of Fairmont Parkway and Jana, it was evening rush hour on the Friday beginning Labor Day weekend;

$ Green had actual knowledge that traffic would be heavy at this intersection;

$ The speed limit on Fairmont Parkway was 45 miles per hour;

$ When Green entered the intersection, the traffic light facing him was red;

$ The traffic light facing westbound Fairmont Parkway was green;

$ The fire truck weighed 39,500 pounds;

$ Trucks in the southernmost and middle lanes of westbound Fairmont Parkway impaired Green=s view of the northernmost lane of traffic;

$ Green did not see the northernmost lane of westbound Fairmont Parkway;

$ Green would have been delayed by 15B30 seconds by stopping or slowing as necessary to ascertain that all traffic had yielded.

As to Green=s conduct, reasonable and fair-minded people could find, based on the trial evidence, that, while not wearing corrective lenses required by his driver=s license, Green drove the fire truck into the northernmost lane of westbound Fairmont Parkway at 23 miles per hour and did not use the fire truck=s horn or siren. 

Green did not introduce evidence that applied the legal standard for good faith to the above circumstances and the above conduct.  Under the applicable legal standard, the record contains no trial evidence that a reasonably prudent official, under circumstances similar to or the same as those stated above, could have believed that engaging in the above-described conduct was justified based on the information Green possessed when he entered the intersection.  Therefore, the burden never shifted to the Alfords to present evidence that no reasonable person in Green=s position could have believed that the facts justified his conduct (hereinafter AClaimant=s Burden@).^[9] Accordingly, this court need not address our dissenting colleague=s contention that expert testimony would be necessary for the Alfords to satisfy this burden. Under the applicable standard of review, the evidence presented at trial would enable reasonable and fair-minded people to find that Green did not prove that he acted in good faith.^[10]

The cases upon which Green relies are not on point.^[11] Green=s argument that this court should disregard circumstances or conduct that otherwise would be relevant to the good faith inquiry unless they proximately caused the collision contradicts authority from the Supreme Court of Texas and from this court.^[12] For this reason, the trial court did not err in denying Green=s motion for judgment as a matter of law, and Green=s first issue is properly overruled.

Though the majority acknowledges that this court need not address our dissenting colleague=s conclusion that expert testimony would be necessary for the Alfords to satisfy the Claimant=s Burden, in an obiter dictum, the majority nevertheless concludes that the testimony of Green=s expert, Chief Gardner, satisfies the Claimant=s Burden.^[13] As our dissenting colleague points out, Chief Gardner did not testify that no reasonable person in Green=s position could have believed that the facts justified his conduct.^[14] This court need not address whether expert testimony would be necessary for the Alfords to satisfy this burden for another reason.  Under the applicable legal standard, the record contains no trial evidence that a reasonably prudent official, under circumstances similar to or the same as those stated above, could have believed that engaging in the above-described conduct was justified based on the information Green possessed when he entered the intersection.^[15] Therefore, the Alfords were not required to satisfy the Claimant=s Burden in the trial court, and any failure to do so is not grounds for reversal on appeal. For this reason, it is unnecessary for this court to address whether expert testimony is required to satisfy the Claimant=s Burden or whether Chief Gardner=s expert testimony is sufficient to do so.   

                                                      Conclusion

It is proper for the en banc court to grant the Alfords= motion for rehearing, to vacate the panel opinion, and to affirm the trial court=s judgment.^[16]

/s/      Kem Thompson Frost

Justice

Judgment rendered and Majority, Concurring, and Dissenting Opinions on En Banc Rehearing filed July 15, 2008.

En Banc Court consists of Chief Justice Hedges, Justices Yates, Anderson, Fowler, Frost, Seymore, Guzman, Brown, and Boyce, and Senior Justice Hudson.^* (Guzman, J., majority) (Hudson, S.J., dissenting).

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^[1]  See Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 423B24 (Tex. 2004).

^[2]  883 S.W.2d 650, 656 (Tex. 1994).

^[3]  See Ballantyne, 144 S.W.3d at 426.

^[4]  See Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997); Chambers, 883 S.W.2d at 656.

^[5]  See Wadewitz, 951 S.W.2d at 467.

^[6]  See id.

^[7]  The majority states that this court should look at Athe circumstances concerning risk and need as the evidence indicates [the official] perceived them.@  See ante at p.19.  This statement indicates that evidence is relevant only if it shows what the official subjectively perceived.  However, under Texas law, courts apply an objective standard and presume that Green perceived the surrounding circumstances found by the trier of fact to exist.  See Harris County v. Smyly, 130 S.W.3d 330, 334 (Tex. App.CHouston [14th Dist.] 2004, no pet.); City of Houston v. Davis, 57 S.W.3d 4, 7 (Tex. App.CHouston [14th Dist.] 2001, no pet.).

^[8]  See Smyly, 130 S.W.3d at 334; Davis, 57 S.W.3d at 7.  The majority states that the evidence must prove good faith under the above legal standard Abased on the facts and reasonable inferences favoring the claimants.@ See ante at p.15.  However, there may be some facts and reasonable inferences favoring the claimants that do not pertain to the official=s conduct and the circumstances under which the official engaged in that conduct.  Therefore, it would be more accurate to state that there must be evidence that proves good faith under the above legal standard based on the circumstances and the official=s conduct shown by the legally sufficient evidence favorable to the claimant.

^[9]  See University of Houston v. Clark, 38 S.W.3d 578, 581 (Tex. 2000).

^[10]  See Clark, 38 S.W.3d at 587B88 (concluding that evidence did not conclusively prove that public official acted in good faith because there was no evidence addressing whether there were available alternatives to the course of action chosen by the official); Wadewitz, 951 S.W.2d at 467 (concluding that evidence did not conclusively prove that public official acted in good faith because there was no evidence addressing the Arisk@ aspect of good faith); Smyly, 130 S.W.3d at 335 (concluding that evidence did not conclusively prove that public official acted in good faith because there was no evidence applying the good-faith legal standard to the circumstances shown by the evidence favorable to the claimant); Davis, 57 S.W.3d at 7 (same as Smyly).

^[11]  See City of San Angelo Fire Department v. Hudson, 179 S.W.3d 695, 703B07 (Tex. App.CAustin 2005, no pet.)  (involving evidence in which there was no conflict as to the circumstances and which reflected a high risk from a burning building in which there were adults and children); Johnson v. Campbell, 142 S.W.3d 592, 594B96 (Tex. App.CTexarkana 2004, pet. denied) (involving evidence in which there was no conflict as to the circumstances and which reflected a need for an immediate response based on a report of a threat that a woman might be shot); Rivas v. City of Houston, 17 S.W.3d 23, 26B29 (Tex. App.CHouston [14th Dist.] 2000, pet. denied) (applying legal standard for good faith significantly different from the standard under Texas law because the jury was charged on that different standard without objection).

^[12]  See Wadewitz, 951 S.W.2d at 467; Chambers, 883 S.W.2d at 656; Smyly, 130 S.W.3d at 335; Davis, 57 S.W.3d at 7.

^[13]  See ante at p.20, p.21, n.18.

^[14]  See post at p.7.

^[15]  See Clark, 38 S.W.3d at 581.

^[16]  As noted in the majority opinion, the trial evidence is legally and factually sufficient to support the challenged findings regarding recklessness.  In addition, Green failed to establish, as a matter of law, that he is covered by liability insurance for an amount not exceeding $100,000 as required by section 108.002(a)(2)(C) of the Texas Civil Practice and Remedies Code.  Therefore, the second and third issues also lack merit. 

^* Senior Justice J. Harvey Hudson sitting by assignment.