Tamara Strickland v. Joseph Wilford Godsey

11th Court of Appeals Eastland, Texas Opinion Tamara Strickland Appellant Vs. No. 11B01B00088-CV B Appeal from Knox County City of Knox City, Texas Appellee This is an appeal in a summary judgment case. The trial court granted the City of Knox City, Texas= motion for summary judgment based upon sovereign immunity and entered a take-nothing judgment against Tamara Strickland. Because we agree that Knox City was protected by sovereign immunity, we affirm the judgment of the trial court. The summary judgment evidence shows that, at all times relevant to this lawsuit, Harry Steen was the Chief of Police for Knox City. In that capacity, he had been conducting an investigation of an accident in which another party hit a horse on Highway 6 in Knox County. The accident resulted in property damage and in physical injuries to the persons involved. At shortly after 11:00 p.m. on that same date, Chief Steen was continuing his investigation and was sitting in his parked police vehicle at the scene of the earlier accident; he was attempting to find out who owned the horse. Chief Steen=s vehicle was parked both on the shoulder and in the grass next to the shoulder on the west side of Highway 6, was on the same side as the southbound traffic, and was facing the southbound traffic on Highway 6. At this same time, Joseph Godsey was traveling south on Highway 6, and he was pulling a hay baler behind his vehicle. Godsey passed by Chief Steen=s location. While the summary judgment evidence is in conflict, Godsey stated that the headlights on Chief Steen=s vehicle were on and that they had blinded him as he passed by the location. After he passed by Chief Steen, Godsey began to pull over so that he could stop and tell Chief Steen about the headlights and their effect upon the southbound traffic. At about the same time as Godsey stopped to talk to Chief Steen, appellant was also traveling southbound on Highway 6. Appellant alleges that, as she approached the location where Chief Steen was sitting in his patrol car, the headlights from the police vehicle blinded her vision and kept her from seeing Godsey=s hay baler which was at least partially in the roadway. When she did finally see the hay baler, appellant swerved hard to the left in order to miss it and, as a result, rolled her vehicle over into the borrow ditch on the east side of the highway. Appellant suffered personal injury and property damage as a result. Appellant ultimately sued Knox City, Godsey, and an insurance company (related to underinsured motorist coverage); she did not sue Chief Steen. Knox City filed a motion for summary judgment and a supplemental motion for summary judgment. In those motions, Knox City claimed that it was entitled to sovereign immunity. Knox City based its claim to immunity on two grounds: (1) the accident did not involve the Ause@ of a motor vehicle under the Texas Tort Claims Act,[1] and (2) because Chief Steen was entitled to official immunity, Knox City retained its sovereign immunity. The trial court granted the motions and entered a take-nothing judgment against appellant and in favor of Knox City; it also severed the remaining claims from the ones against Knox City. In two points of error, appellant challenges the trial court=s rulings on the immunity issue. In her first point of error, appellant asserts that sovereign immunity has been waived in this case because the patrol car was a motor-driven vehicle and was in Aoperation@ or Ause@ at the time of the accident. In her second point of error, appellant maintains that Knox City was not entitled to sovereign immunity through Chief Steen because Chief Steen was not engaged in discretionary activities at the time of appellant=s accident and was not, therefore, entitled to official immunity. We will begin with an analysis of appellant=s second point of error. The doctrine of sovereign immunity involves two aspects: immunity from suit and immunity from liability. General Services Commission v. Little-Tex Insulation Company, Inc., 39 S.W.3d 591, 594 (Tex.2001); Federal Sign v. Texas Southern University, 951 S.W.2d 401 (Tex.1997). A governmental unit is clothed with sovereign immunity unless that immunity has been waived by the legislature. See City of San Antonio v. Hernandez, No. 04-00-00449-CV, 2001 LEXIS 2671 (Tex.App. - San Antonio Apr. 25, 2001, no pet=n h.); see also Harris County v. Dillard, 883 S.W.2d 166 (Tex.1994). The legislature has provided for waiver of sovereign immunity in certain instances set forth in the Texas Tort Claims Act. These instances of waiver are limited and are narrowly defined. Texas Department of Criminal Justice v. Miller, 44 Tex. Sup. Ct. J. 963 (June 21, 2001). It is the prerogative of the legislature to waive or not to waive the protection afforded by sovereign immunity. Federal Sign v. Texas Southern University, supra. Those instances in which the legislature has provided for waiver of immunity, as relevant here, are set forth in Section 101.021 of the Texas Tort Claims Act, which provides in relevant part: A governmental unit in this 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. In order to prevail upon a motion for summary judgment based upon an affirmative defense, such as immunity, the movant must come forward with summary judgment evidence for each element of the affirmative defense. American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Nichols v. Smith, 507 S.W.2d 518 (Tex.1974); Anderson v. Anderson County, 6 S.W.3d 612, 614 (Tex.App. - Tyler 1999, pet=n den=d). If the movant conclusively establishes the defense, then it is incumbent upon the non-movant to come forward with summary judgment evidence to the contrary. Torres v. Western Casualty and Surety Company, 457 S.W.2d 50 (Tex.1970) Official immunity is a bar to liability and, when established, protects the party claiming it from individual liability in the lawsuit. University of Houston v. Clark, 38 S.W.3d 578 (Tex.2000). Official immunity protects governmental employees, in their individual capacities, from liability relative to: (1) the performance of discretionary duties, as opposed to ministerial ones, (2) within the scope of the employee=s authority, (3) if the employee acts in good faith. City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex.1994). If the employee is shielded from liability by virtue of official immunity, then the governmental entity retains its sovereign immunity. DeWitt v. Harris County, 904 S.W.2d 650 (Tex.1995) On the question of official immunity, the briefing in this court is directed solely to whether Chief Steen was performing discretionary acts at the time of appellant=s accident. Appellant maintains that Chief Steen=s activities were ministerial and that he is not protected by official immunity. Knox City argues that his acts were discretionary and that Chief Steen is protected. We will limit our discussion to that area addressed by the parties. Those actions which involve personal deliberation, decision, and judgment are discretionary. Ministerial acts are acts A[w]here the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.@ Downing v. Brown, 935 S.W.2d 112, 114 (Tex.1996), citing City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex.1994). If an action requires obedience to orders or the performance of a duty to which the employee has no choice, the action is ministerial. City of Lancaster v. Chambers, supra. While the definitions are easily stated, the application of those principles is much more difficult. Even ministerial acts will require some exercise of discretion. In making the determination, we look at the character of the discretion exercised. Only acts involving governmental discretion are protected by official immunity. Kassen v. Hatley, 887 S.W.2d 4, 11 (Tex.1994). Whether Chief Steen was negligent or violated the law is irrelevant in determining whether he was engaged in discretionary or ministerial acts. Carpenter v. Barner, 797 S.W.2d 99 (Tex.App. - Waco 1990, writ den=d). Official immunity protects officers even though they act negligently. City of Lancaster v. Chambers, supra at 655. Furthermore, the issue is not whether a governmental employee had the discretion to perform an allegedly wrongful act while discharging the function. City of Lancaster v. Chambers, supra at 653. Generally, a police officer who is driving his vehicle in an official but non-emergency situation is performing a ministerial function. Woods v. Moody, 933 S.W.2d 306 (Tex.App. B Houston [14th Dist.] 1996, no writ); see also City of Lancaster v. Chambers, supra at 655. However, special circumstances can change that function into a discretionary one. Such circumstances include, but are not limited to, situations involving high-speed chases, emergency medical transportation, traffic stops, and investigations. See City of Wichita Falls v. Norman, 963 S.W.2d 211 (Tex.App. B Fort Worth 1998, pet=n dism=d w.o.j.), and cases cited therein. Merely driving a police vehicle in an official but non-emergency situation involves traffic discretion, but not governmental discretion. The officer is called upon to make the same decisions that the general public would be required to make; no governmental discretion is involved. Woods v. Moody, supra at 308-09. When Chief Steen arrived at the scene of the first accident, the ministerial function of driving to the scene of the accident came to an end as he began and continued to investigate the accident. The investigation involved the exercise of governmental discretion, not just traffic discretion. Chief Steen=s actions during his investigation involved personal deliberation, decision, and judgment and, therefore, were discretionary. Chief Steen was entitled to official immunity. Because Chief Steen was entitled to official immunity, Knox City was entitled to sovereign immunity. DeWitt v. Harris County, supra at 653; see also Section 101.021(1)(B), Texas Tort Claims Act. The trial court did not err when it granted the take-nothing summary judgment against appellant. Appellant=s second point of error is overruled. In view of our holding in connection with appellant=s second point of error, we need not discuss her first point of error. We affirm the judgment of the trial court. JIM R. WRIGHT JUSTICE September 13, 2001 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]All references to the Texas Tort Claims Act refer to TEX. CIV. PRAC. & REM. CODE ANN. ' 101.001 et seq. (Vernon 1997 & Supp. 2001).