City of Houston v. Brett Hatton

Opinion issued August 16, 2012.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-01068-CV
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THE CITY OF HOUSTON, Appellant
V.
BRETT HATTON, Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Case No. 2011-04420
MEMORANDUM OPINION
This lawsuit against the City arises out of a car accident involving a police
patrol car that was en route in response to an officer’s call for assistance. Hatton
sued under the Texas Tort Claims Act, claiming that the Act’s waiver of immunity
applied and that the City was liable for damages. See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.055(1) (West 2011). The City filed a plea to the jurisdiction,
seeking dismissal based on governmental immunity, which, after hearing, the trial
court denied. We reverse and render judgment dismissing the suit for lack of
jurisdiction.
Background
Events leading to lawsuit
Late one evening in July 2009, HPD Officer R. Johnson was on duty,
patrolling in northwest Houston near Antoine Drive. He heard a request for
backup on the police radio. HPD policy classifies this particular “assist the officer
call” as Priority One—the highest priority call. HPD’s order issued in connection
with that policy “assumes that a potential threat to life or the potential threat of
serious bodily injury is in progress.” A patrol officer responding to a Priority One
call must use the vehicle’s overhead lights and siren and proceed to the location
immediately. Johnson activated his emergency lights and sirens and, after some
deliberation, decided to take Antoine to the incident location.
Meanwhile, Hatton, an off-duty police officer, was driving on Antoine. He
noticed an approaching patrol car with its sirens and emergency lights on. Hatton
pulled to the side of the road to let the patrol car pass. After it passed, Hatton
checked his rear-view mirrors before resuming travel. He then saw a second patrol
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car—Officer Johnson’s—approaching. As Officer Johnson’s car neared, Hatton
heard tires screeching. He turned to see the patrol car swerve in the road, then
strike the back of his car.
Proceedings in the trial court
In January 2011, Hatton sued the City of Houston, claiming that Officer
Johnson’s negligence and negligence per se resulted in the accident and caused
him injuries. The City responded with a plea to the jurisdiction, invoking
governmental immunity and seeking dismissal of Hatton’s claims for lack of
subject matter jurisdiction. In his response, Hatton contended that the Texas Tort
Claims Act waived the City’s immunity from suit, because the accident resulted
from Officer Johnston’s ministerial actions and he failed to act in good faith.
Discussion
I. Standard of review
Texas statute allows a party aggrieved by a trial court’s interlocutory order
granting or denying a plea to the jurisdiction the right to appeal that decision. See
TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.014(a)(8) (West Supp. 2011); see id.
§ 101.001(3)(D) (West 2011). We review the trial court’s ruling on a plea to the
jurisdiction de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007) (citing
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004)).
The plaintiff must allege facts that affirmatively establish the trial court’s subject
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matter jurisdiction. Id.; City of Pasadena v. Kuhn, 260 S.W.3d 93, 95 (Tex.
App.—Houston [1st Dist.] 2008, no pet.). In determining whether the plaintiff has
satisfied this burden, we construe the pleadings liberally in the plaintiff’s favor and
deny the plea if the plaintiff has alleged facts affirmatively demonstrating
jurisdiction to hear the case. Miranda, 133 S.W.3d at 226–27; Smith v. Galveston
Cnty., 326 S.W.3d 695, 698 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
If the plea to the jurisdiction challenges the existence of jurisdictional facts,
the trial court must consider relevant evidence submitted by the parties. Miranda,
133 S.W.3d at 227. When the relevant evidence is undisputed or fails to raise a
fact question on the jurisdictional issue, the trial court rules on the plea to the
jurisdiction as a matter of law. Id. at 228. If, however, the evidence creates a fact
question regarding jurisdiction, then the trial court must deny the plea and leave
resolution of the fact issue to the fact-finder. Id. at 227–28. In reviewing the
evidence presented, we take as true all evidence favorable to the plaintiff,
indulging every reasonable inference in the plaintiff’s favor. Id. at 228.
II. Governmental immunity
Under the doctrine of governmental immunity, political subdivisions of the
State, including municipalities, cannot be held liable for the actions of their
employees unless a constitutional provision or statute waives that immunity. See,
e.g., City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011); City of
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Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994). The Texas Tort Claims
Act waives governmental immunity in limited circumstances. See Dep’t of (Tex.
Crim. App. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Section 101.021 of
the Act provides:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused
by the wrongful act or omission or the negligence of an
employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from
the operation or use of a motor-driven vehicle or motor-
driven equipment; and
(B) the employee would be personally liable to the claimant
according to Texas law; and
(2) personal injury and death so caused by a condition or use of
tangible personal or real property if the governmental unit
would, were it a private person, be liable to the claimant
according to Texas law.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011). The Act also
enumerates exceptions to the waiver of immunity. See id. §§ 101.051–.067 (West
2011).
Because the Act provides that a governmental unit may only be liable when
“the [negligent] employee would be personally liable to the claimant,” whether the
employee is entitled to official immunity also affects whether the Act’s limited
waiver of governmental immunity applies. Id. § 101.021(1)(B); see DeWitt v.
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Harris Cnty., 904 S.W.2d 650, 653 (Tex. 1995). “If the employee is protected
from liability by official immunity, the employee is not personally liable to the
claimant and the government retains its sovereign immunity under subsection 1.”
DeWitt, 904 S.W.2d at 653 (citing K.D.F. v. Rex, 878 S.W.2d 589, 597 (Tex.
1994), and City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex. 1993)). “A
governmental employee is entitled to official immunity: (1) for the performance of
discretionary duties; (2) within the scope of the employee’s authority; (3) provided
the employee acts in good faith.” Univ. of Houston v. Clark, 38 S.W.3d 578, 580
(Tex. 2000); City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994).
Hatton does not dispute that Officer Johnson was acting in the course and scope of
his employment as an HPD officer, but asserts that the City is not immune because
Johnson was performing ministerial acts or, alternatively, that he did not perform
his discretionary acts in good faith.
A. Discretionary or ministerial duties?
In response to the City’s plea, Hatton challenged the City’s claim that
Johnson was performing discretionary duties when the collision occurred. “If an
action involves personal deliberation, decision, and judgment, it is discretionary;
an action that requires obedience to orders or the performance of a duty to which
the employee has no choice is ministerial.” Ramos v. Tex. Dep’t of Pub. Safety, 35
S.W.3d 723, 727 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (citing
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Chambers, 883 S.W.2d at 654); accord City of Dallas v. Brooks, 349 S.W.3d 219,
225 (Tex. App.—Dallas 2011, no pet.). In determining whether an act is
discretionary, the issue is whether an employee was performing a discretionary
function, not whether he had the discretion to do an allegedly wrongful act while
discharging that function or whether the employee’s job description includes
discretionary duties. Ramos, 35 S.W.3d at 727 (citing Chambers, 883 S.W.2d. at
653).
Hatton contends that Johnson’s operation of the patrol vehicle in responding
to a Priority One call to assist another officer is a ministerial act, because he had no
choice but to respond to the call, and his actions thus involved “traffic judgment”
only. Simple, nonemergency driving by a police officer while on official business
is a ministerial act that does not entitle the officer to official immunity. Harris
Cnty. v. Gibbons, 150 S.W.3d 877, 886 (Tex. App.—Houston [14th Dist.] 2004, no
pet.). In some situations, though, an officer’s operation of a vehicle “involves
personal deliberation or the exercise of professional expertise, decision, or
judgment.” Brooks, 349 S.W.3d at 225. Examples of discretionary activities
include high-speed chases, investigations, traffic stops, and an officer’s decision to
violate traffic laws to respond as quickly as possible to an officer’s call for
assistance. See, e.g., Chambers, 883 S.W.2d at 655 (deeming officer’s decision to
undertake and conduct high-speed pursuit of suspect a discretionary function);
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Brooks, 349 S.W.3d at 222 (holding that police officer who had accident while en
route to “Code 1 call for cover” from another police officer requesting backup for a
combative, suicidal person was performing discretionary function); Harless v.
Niles, 100 S.W.3d 390, 398 (Tex. App.—San Antonio 2002, no pet.) (holding that
officer’s decision to violate traffic laws in order to quickly reach scene of
suspected criminal activity and assist another officer there was discretionary act);
see also City of San Angelo Fire Dep’t v. Hudson, 179 S.W.3d 695, 704 (Tex.
App.—Austin 2005, no pet) (holding that manner of firefighter’s driving in
response to emergency situation was discretionary function as matter of law); City
of Houston v. Flaniken, 108 S.W.3d 555, 557 (Tex. App.—Houston [14th Dist.]
2003, no pet.) (holding that operation of ambulance in response to emergency
situation was discretionary function as matter of law). Here, like the firefighter in
Hudson and the ambulance driver in Flaniken, Johnson had no choice but to
respond to the Priority One request for assistance. In responding to the orders,
however, Johnson, like the other drivers, relied on his professional experience and
expertise in judging the traffic, weather conditions, and alternative routes to
determine the safest and most expedient way to reach his destination. The
requirement that Johnson operate the patrol car with the emergency lights and
sirens activated underlines the fact that he was not constrained by the ordinary
traffic rules, but rather was required to use his professional judgment in responding
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to the call. We hold that Johnson was performing a discretionary act when the
accident occurred.
Good faith
The parties further contest whether Johnson acted in good faith. The good-
faith standard is not the equivalent of a general negligence test, which addresses
what a reasonable person would have done—it is more lenient, giving “ample
room for mistaken judgments” by protecting “all but the plainly incompetent or
those who knowingly violate the law.” Chambers, 883 S.W.2d at 656 (quoting
Swint v. City of Wadley, 5 F.3d 1435, 1441–42 (11th Cir. 1993)), quoted in Tex.
Dept. of Pub. Safety v. Rodriguez, 344 S.W.3d 483, 490 (Tex. App.—Houston [1st
Dist.] 2011, no pet.). To prevail on the good-faith requirement for official
immunity, the City must show that a reasonably prudent officer in the same or
similar circumstances might have believed that the action should have been taken.
Junemann v. Harris Cnty., 84 S.W.3d 689, 694 (Tex. App.—Houston [1st Dist.]
2002, pet. denied) (citing Chambers, 883 S.W.2d at 657–58). To defeat that proof
at this stage in the proceedings, the plaintiff must raise a fact issue suggesting that
no reasonably prudent officer in the same position would have considered that the
facts warranted the acting officer’s conduct. Ballantyne v. Champion Bldrs., Inc.,
144 S.W.3d 417, 426 (Tex. 2004), cited in Rodriguez, 344 S.W.3d at 490;
Junemann, 84 S.W.3d at 694. The plaintiff’s evidence must address the degree,
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likelihood, and obviousness of the risks created by the officer’s actions.
Junemann, 84 S.W.3d at 694. (citing Wadewitz v. Montgomery, 951 S.W.2d 464,
467 (Tex. 1997)).
This good-faith test requires us to balance the need for intervention with the
countervailing severity of potential public safety concerns. Rodriguez, 344 S.W.3d
at 488 (citing Univ. of Houston v. Clark, 38 S.W.3d 578, 581 (Tex. 2000));
Junemann, 84 S.W.3d at 693–94 (citing Wadewitz, 951 S.W.2d at 467). In
reviewing the officer’s actions, we consider (1) the seriousness of the crime or
accident to which the officer is responding, (2) whether the officer’s immediate
presence is necessary to prevent injury or loss of life or to apprehend a suspect, and
(3) what alternative courses of action, if any, were available to achieve a
comparable result. Wadewitz, 951 S.W.2d at 467. In assessing the countervailing
public safety concerns, we consider (1) the nature and severity of the harm the
officer’s actions could cause, (2) the likelihood that any harm would occur, and (3)
whether the risk of harm would be clear to a reasonably prudent officer. Id.
In Johnson’s affidavit, accompanying the City’s plea to the jurisdiction, he
averred that:
 The night of the accident, the weather was clear and dry, and the traffic
was very light.
 Officer Johnson chose Antoine as the preferred route because it is a
major thoroughfare, was paved, was lit by overhead street lights, and
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would allow him to drive directly to the dispatch location, an apartment
complex a few miles away.
 Officer Johnson was aware that, in the past two years, two officers had
been shot, one fatally, at the same apartment complex.
 He was traveling above the posted speed limit at a speed at which he felt
he could safely maneuver.
 Officer Johnson noticed Hatton’s car stopped in the right lane ahead
when he arrived at a “jog” or curve in the road he had not previously
noticed.
 His tire hit the curb and he attempted to slow down the patrol car.
 Right after the curve, the street lanes narrowed as they passed over a
bridge.
 Officer Johnson attempted to steer his car back into the left lane, but was
unable to regain control before striking Hatton’s car.
The City also provided an affidavit from Sergeant M. Reutzel, a nineteen-year
HPD veteran. Sergeant Reutzel was Officer Johnson’s direct supervisor and the
first officer who arrived at the accident scene. Sergeant Reutzel testified that he
had a chance to observe the accident scene and the placement and damage to the
cars. He reviewed the accident investigation report, including Hatton’s and
Johnson’s statements. Sergeant Reutzel opined that:
Based on the statements of both officers in the police report and the
findings of the investigative officer, the actions of Officer Johnson,
immediately prior to accidentally striking the curb, were within the
protocols for responding to a Priority 1 “assist the Officer” call.
....
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If given the same assignment in the same or similar conditions,
another reasonably prudent Texas peace officer could have chosen to
travel on Antoine to reach the call location, could have scanned the
area to make sure that other vehicles were yielding to the emergency
vehicle, could have missed the jog or curve in the roadway, and could
have attempted to regain control of the patrol vehicle in the same or
similar manner as Officer Johnson.
In addition, a third affidavit supported the City’s plea to the jurisdiction.
Lieutenant Kennedy, who has served with the Houston Police Department for
nearly thirty years, reviewed the accident report and Johnson’s statement and also
opined that Johnson was acting in good faith when the accident occurred.
In opposition to the City’s evidence, Hatton claims that Johnson’s failure to
notice the curve in Antoine before the bridge calls into question the reasonableness
of his decision to take that route. Hatton also faults Johnson’s decision to travel at
speeds above the posted limit. Relying on Harless, Hatton contends Johnson was
not justified in using excessive speed because another officer was already en route
to the dispatch location ahead of him. See Harless, 100 S.W.3d at 399–400
(finding fact issue on good faith because no evidence supported officers’
“subjective beliefs about the alleged seriousness of the crime to which they were
responding, or whether their immediate presence was necessary to prevent injury
or loss of life or to apprehend a suspect”; officers decided to follow another officer
who had been dispatched to investigate report of suspicious activity, possibly
burglary). The record, however, does not show that Johnson was aware of the
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patrol car ahead of him or whether any other patrol car was likely to arrive at the
dispatch location ahead of him. Officer Johnson and Sergeant Reutzel both
testified that the weather conditions, light traffic, and urgency of the call justified
Johnson’s speed. Hatton fails to raise a fact issue as to whether no reasonably
prudent officer in the same position could have considered that the facts justified
the acting officer’s conduct. The evidence shows that Officer Johnson acted in
good faith. We therefore hold that official immunity protects Johnson;
consequently, sovereign immunity protects the City from Hatton’s suit.
Conclusion
The trial court erred in denying the City’s plea to the jurisdiction. We
therefore reverse the order of the trial court and render judgment dismissing
Hatton’s suit for lack of jurisdiction.
Jane Bland
Justice
Panel consists of Justices Bland, Massengale, and Brown.
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