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

Appellees= Motion for Rehearing En Banc Granted; Opinion of March 27, 2007 Withdrawn; Affirmed and Majority, Concurring, and Dissenting Opinions on En Banc Rehearing filed July 15, 2008

Appellees= Motion for Rehearing En Banc Granted; Opinion of March 27, 2007 Withdrawn; Affirmed and Majority, Concurring, and Dissenting Opinions on En Banc Rehearing filed July 15, 2008.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 152^nd District Court

Harris County, Texas

Trial Court Cause No. 2002-53991

D I S S E N T 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

The majority opinion concludes that (1) Green had the burden of establishing his affirmative defense of official immunity, (2) the facts necessary to establish official immunity were disputed, and (3) the trier of fact resolved those factual disputes in favor of the Alfords.  Thus, Green failed to establish his defense of official immunity, and the judgment is affirmed.  The resolution is simple and compelling, but it effectively abolishes the defense of official immunity.

There is no question the Alfords submitted, and the trial court found, sufficient facts to establish that Green acted negligently in proceeding through the intersection as he did.  However, the purpose of the doctrine of official immunity is to protect public officers from civil liability for conduct that would otherwise be actionable.  See City of Lancaster v. Chambers, 883 S.W.2d 650, 653B54 (Tex. 1994). In other words, the underlying purpose of official immunity is to free government officials to exercise their duties without fear of damage suits that would consume their time and energy and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.  Borrego v. City of El Paso, 964 S.W.2d 954, 958 (Tex. App.CEl Paso 1998, pet. denied).  Thus, evidence of negligent acts does not establish a lack of good faith.^[1] AIf a government employee acts within the scope of his employment in the performance of a discretionary duty and acts in good faith, he is entitled to official immunity even though his acts are negligent, or even illegal.@  Johnson v. Campbell, 142 S.W.3d 592, 594 (Tex. App.CTexarkana 2004, pet. denied).^[2]

To establish his good faith, Green testified that he weighed the need to respond quickly to the alarm against the risk of injury from entering the intersection on a red light.  To minimize the risk, Green said (1) he activated his emergency lights and siren before leaving the station; (2) he slowed down as he approached the intersection; (3) before entering the intersection, he activated his air horn and looked in the direction of approaching traffic; (4) he saw that no vehicles were moving; (5) he believed his view of the far right lane of Fairmont Parkway was not obstructed and, if it had been obstructed, he would have stopped; and (6) he drove slowly enough that he could have stopped in time to avoid an accident if he had seen the Alfords= vehicle.  Thus, Green presented sufficient evidence to establish the affirmative defense of official immunity. The majority holds the Alfords offered evidence rebutting Green=s assertions and, thus, created a fact issue as to whether he acted in good faith.  Having created a fact issue, the majority finds the issue was resolved against Green by the trier of fact.  Indeed, the trial judge, acting as the trier of fact in the court below, apparently disbelieved much of Green=s testimony because the trial court found that Green (1) did not assess the risk of entering the intersection as he did against the need to respond quickly to the fire alarm, (2) did not activate his siren, (3) did not use his air horn, (4) could not and did not see the far right lane of Fairmont Parkway, (5) and was driving too fast to stop when he entered the intersection.

In addition, the trial court also concluded that Green did not act in good faith because evidence was admitted showing that (1) Green was suffering from a progressive eye disease that principally blurred the vision in his right eye; (2) in 1997 or 1998, Green failed a vision test administered by the Texas Department of Public Safety; (3) Green was required to wear corrective lenses while driving; and (4) Green was not wearing corrective lenses at the time of the collision.  The court further found that Green (as he himself admitted) was aware that the fire alarm was an automatic alarm and that most automatic alarms are later discovered to be false alarms.^[3]

While these factual findings may be damning to Green, they do not resolve the critical issue.  After a defendant has offered evidence showing he acted in good faith, he is entitled to official immunity as a matter of law unless the plaintiff offers some evidence Athat no reasonable person@ in the defendant=s Aposition could have thought that the facts justified@ the defendant=s conduct.^[4] See University of Houston v. Clark, 38 S.W.3d 578, 581 (Tex. 2000).  To make this critical showing, the Alfords relied principally upon the testimony of their expert witness, Robert Stage.  Stage testified that (1) Green caused the collision; (2) his actions were reckless; (3) he secured the first two lanes of westbound traffic but erred in failing to secure the third lane of traffic; (4) he should have come to a complete stop until he secured the third lane of traffic; and (5) he should have known that his conduct posed a high degree of risk.  Stage also testified that, in his opinion, the risk versus need balancing test was not met when Green entered the third lane of traffic without first Asecuring@ it.

Stage=s opinion that Green caused the accident is largely undisputed.  Moreover, who Acaused@ the accident is not the relevant issue.  The fact that a governmental employee was negligent will not defeat good faith.  Telthorster v. Tennell, 92 S.W.3d 457, 465 (Tex. 2002).^[5] The fact that Green=s conduct may have been Areckless@ is also unavailing.  Conduct that is clearly reckless may be reasonable in a time of crisis.  For example, in White v. Tackett, 173 S.W.3d 149, 151 (Tex. App.CFort Worth 2005), the plaintiff alleged that a Texas Department of Public Safety trooper was Areckless@ in initiating and continuing a high speed pursuit that ultimately led to her injuries.  The court agreed that the trooper=s conduct presented Aa clear risk of harm to the public in continuing, rather than terminating, the pursuit,@ but held the risk was outweighed by the need to apprehend the suspect.  Id. at 155.  The defense of official immunity exists precisely because government employees are sometimes called upon to take measured risks in the performance of their duties that may sometimes result in injury or damage to others.

Further, Stage based his opinion regarding Green=s recklessness on the fact that he had an accident.  In other words, Stage testified that because Green collided with a vehicle, his conduct, ipso facto, involved a high degree of risk.  Stage testified, AIf [Green] looked and thought it was clear and there was a vehicle there, then he didn=t take the time to look and see clearly.@  However, I do not agree with Stage=s assumption that Green=s inaccurate perception necessarily rendered it unreasonable for him to have believed that all traffic was stopped based upon his knowledge at the time.  AIf this were so, any admission that a risk existed would defeat the element of good faith, and any collision would be adequate evidence that a reasonable employee would have assessed the risk differently, thereby vitiating the doctrine of official immunity in most or all cases.  Official immunity is designed to encourage emergency personnel to take reasonably calculated risks when they have properly considered need and risk, not to punish them for having done so.@  City of San Angelo Fire Dep=t v. Hudson, 179 S.W.3d 695, 706 (Tex. App.CAustin 2005, no pet.).  Most importantly, Stage did not testify that no reasonable firefighter under the same or similar circumstances would have entered the intersection as Green did.

The Alfords also relied on the testimony of J. D. Gardner, the Chief of the Pasadena Volunteer Fire Department.  Gardner testified that no reasonable firefighter would drive a fire truck without corrective lenses if such lenses were required by the terms of his driver=s license.  While the testimony was conflicting, the trial court found that Green was not wearing corrective lenses at the time of the collision although they were required by his license.  If there had been an issue as to whether Green=s failure to wear corrective lenses was a contributing cause of the accident, Gardner=s testimony in this regard would have been sufficient to rebut Green=s defense of official immunity thereby creating a fact issue for the trier of fact. However, the trial court found Green failed to see the Alfords= vehicle, not because he failed to wear corrective lenses, but because intervening traffic was blocking his view of the far right lane.  Thus, Green=s failure to wear corrective lenses is immaterial because it was not a contributing cause of the accident. 

Gardner was asked several times whether any reasonable firefighter would have entered the intersection at 23 miles per hour when he could not see the third lane of traffic.  In response, Gardner repeatedly testified that he believed in such a scenario the firefighter should proceed with Adue regard.@  Gardner was then asked:

Q.  Okay.  But I=m talking about all these assumptions.  If he was going 23 miles-per-hour, if he couldn=t see the last lane of traffic, if he couldn=t stop in time; that wouldn=t be due regard, would it?

A.  Oh, no, sir.

Thereafter Gardner was asked:

Q.  All right.  We were talking about due regard.  I wanted to come back to this.  This was your testimony, right, that a reasonable fire truck operator must use due regard, right?

A.  Uh-huh.

Q.  While operating a fire truck, right?  Is that Ayes@?

No. 1?

A.  Yes, sir.

Q.  Is this your testimony that a reasonable fire truck operator must use due regard?

A.  Yes, sir.

Q.  Now, I want you to consider these assumptions:

Number 2:  A fire truck has a red light on Jana, okay?

A.  Uh-huh.

Q.  Is that okay?

A.  I said yes, sir.

Q.  Westbound Fairmont Parkway has three lanes at 11 feet wide per lane, okay?

A.  Yes, sir.

Q.  Westbound Fairmont Parkway is a busy intersection, okay?

A.  Yes, sir.

Q.  The time of the collision was during Friday rush hour, okay?

A.  Okay.

Q.  The vision of the northern most lane of westbound Fairmont is obscured and the driver of the fire truck never sees the Alford truck, okay?

A.  Yes, sir.

Q.  The fire truck is traveling at a speed in which it cannot stop before it enters the northern most or third lane of westbound Fairmont Parkway?

A.  Yes, sir.

Q.  Okay.  Now, knowing all of these assumptions and taking all of these assumptions, Mr. Green would not have been acting in due regard; isn=t that right?

A.  I disagree with you.

Q.  Okay.  Well, which one of these assumptions C I mean, do you C are you disagreeing with the assumptions?

A.  How fast was the Alford truck traveling?  I mean, there is a lot of things that you are not putting in here.  The fire truck operator fulfilled his requirement by visually checking the lane of traffic and he was operating in that apparatus in due regard because it was his assumption that he had acquired the right-of-way to that intersection when he proceeded through it.

(Emphasis added).

While Gardner=s testimony comes close to creating a fact issue, the test is not whether a Areasonable@ firefighter would have slowed to 2 miles per hour, stopped, or even stepped out of the truck to physically inspect all lanes of traffic on foot.  In other words, the Atest of good faith does not inquire into >what a reasonable person would have done,= but into >what a reasonable [person] could have believed.=@  Ballantyne, 144 S.W.3d at 426 (quoting Telthorster, 92 S.W.3d at 465 quoting Wadewitz v. Montgomery, 951 S.W.2d 464, 467 n.1 (Tex. 1997)).  Here, Gardner did not testify that no reasonable firefighter could have believed the risk taken by Green when he entered the intersection against a red light was justified under the circumstances.

The Alfords contend Green is bound by the trial court=s findings of fact and that such findings created a fact issue regarding Green=s good faith.  In light of Stage=s and Gardner=s failure to testify that no reasonable firefighter would have entered the intersection as Green did under the same or similar circumstances, the question is whether a plaintiff can rebut a prima facie showing of good faith so as to create a fact issue without the benefit of expert testimony.

It is well established that if Ascientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.@  Tex. R. Evid. 702 (emphasis added). Such expert testimony is required, however, when the alleged negligence is of such a nature as not to be within the experience of laymen.  FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 90 (Tex. 2004).  When asserting the affirmative defense of official immunity, the government employee may meet his burden of showing good faith through his own testimony.^[6] Of course, the defendant employee has the requisite experience, training, etc. to testify in his own behalf precisely because he is a fireman, policeman, ambulance driver, etc.  Here, the evidence shows that Pasadena Volunteer firefighters usually have 12 weeks of training and all are certified firefighters.  Some portion of that training relates to driving emergency vehicles.  One witness, for example, described a course for driver certification that requires a minimum of 16 hours of instruction, as well as, testing and driver qualification exercises.

While driving is certainly in the sphere of experience for the average laymen, few have any experience driving emergency vehicles. Moreover, to rebut a defendant=s showing of good faith so as to create a fact issue, the plaintiff must first show that Ano reasonable person in the defendant=s position could have thought the facts were such that they justified defendant=s acts.@  Chambers, 883 S.W.2d at 657 (emphasis added).  Driving an emergency vehicle in contravention of normal traffic laws, where a delayed response could prove fatal to one or more persons, in crowded conditions is simply not an activity within the common experience of laymen.  Thus, under the circumstances presented here, the Alfords were required to proffer the testimony of an expert witness.  Of course, the Alfords offered the testimony of several experts, but none testified that no reasonable firefighter could have believed he was justified in entering the intersection as Green did after weighing the risk of an accident against the need to respond to the emergency alarm.

Without expert testimony that no reasonable firefighter would have proceeded through the intersection as Green did, the Alfords did not (1) offer any evidence to rebut Green=s prima facie defense of official immunity and (2) no fact issue exists on this issue for the trier

of fact to resolve.  Accordingly, I respectfully dissent.

/s/      J. Harvey Hudson^*

Senior Justice

Judgment rendered and Majority, Concurring and Dissenting Opinions filed July 15,  2008. (Guzman, J., majority and Frost, J., concurring.)

En Banc.^** (En Banc court consists of Chief Justice Hedges and Justices Yates, Anderson, Fowler, Frost, Seymore Guzman, Brown, Boyce and Hudson.)

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^[1]  Official immunity is, under certain circumstances, an absolute privilege.  It is founded on the theory that the good it accomplishes in protecting the rights of the general public outweighs any wrong or injury which may result to a particular individual.  Thus, by shielding government officials against harassment and inevitable hazards of vindictive or ill‑founded damage suits filed in response to actions officials take while fulfilling their official responsibilities, the privilege protects the public interest.  This is true even though the privilege may result in individual citizens suffering some pecuniary loss due to the malicious acts of government officials.  Cloud v. McKinney, 228 S.W.3d 326 (Tex. App.CAustin 2007, no pet.).

^[2]  AThus qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.@  Chambers, 883 S.W.2d at 656.

^[3]  Here, the alarm was, in fact, a false alarm.

^[4]  AOnce the defendant presents proof that a reasonable [person] in the same or similar circumstances would have taken the same action, the burden shifts to the plaintiff to show that no reasonable [person] in the defendant=s position could have thought the facts were such they justified the defendant=s act.@ Souder v. Cannon, 235 S.W.3d 841, 853 (Tex. App.CFort Worth 2007, no pet.).

^[5]  The purpose of common‑law official immunity is to protect public officials from being forced to defend their decisions that were reasonable when made, but upon which hindsight has cast a negative light. Id. at 463.

^[6]  See Freeman v. Wirecut E.D.M., Inc., 159 S.W.3d 721, 730 (Tex. App.CDallas 2005, no pet.) (holding policer office may establish good faith through his own testimony); Zuniga v. Navarro & Assocs, P.C., 158 S.W.3d 663, 672 (Tex. App.CCorpus Christi 2005, pet. denied) (holding good faith may be established in summary judgment context by the defendant official=s own affidavit);  Gidvani v. Aldrich, 99 S.W.3d 760, 764 (Tex. App.CHouston [1st Dist.] 2003, no pet.) (holding district attorney could establish good faith in summary judgment context by his own affidavit); Hayes v. Patrick, 45 S.W.3d 110, 116 (Tex. App.CFort Worth 2000, pet. denied) (holding police officer may establish good faith in context of summary judgment by his own affidavit); Beatty v. Charles, 936 S.W.2d 28, 31 (Tex. App.CSan Antonio 1996, no writ) (holding good faith may be established by expert testimony or the defendant police officer=s testimony).

^* Senior Justice J. Harvey Hudson sitting by assignment

^** .En Banc