Arturo Montanez, Individually and as Administrator of the Estates of Maria Delaluz Montanez and Christopher Lee Rosales v. City of Three Rivers, Live Oak County

NUMBER 13-99-038-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ ARTURO MONTANEZ, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATES OF MARIA DELALUZ MONTANEZ AND CHRISTOPHER LEE ROSALES, DECEASED, ET AL., Appellants, v. THE CITY OF THREE RIVERS, LIVE OAK COUNTY, ET AL., Appellees. ___________________________________________________________________ On appeal from the 36th District Court of Live Oak County, Texas. ___________________________________________________________________ O P I N I O N Before Justices Dorsey, Chavez and Kennedy Opinion by Justice Chavez This is an accelerated appeal from the denial of a summary judgment based on the affirmative defense of immunity.(1) We affirm. Appellants Arturo Montanez, individually and as administrator of the estates of Maria De La Luz Montanez and Christopher Lee Rosales, and Santos Aguirre, Sr., individually and on behalf of minor children Omar Aguirre and Alberto Aguirre and surviving heirs Francisca Montanez and Apolonio Montanez under the Texas Wrongful Death Act filed suit against Live Oak County and Live Oak County Police Deputies Glenn Thompson and Vincent Roberts for torts arising out of a high-speed collision on U.S. Highway 281 on November 22, 1995. By two issues, appellants complain the trial court erred by granting the County's and its deputies' motion for summary judgment. Appellants also complain the trial court erred by not granting their request for a new trial. Summary Judgment A motion for summary judgment must expressly state the grounds upon which it is made. McConnell v. Southside Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993); Tex. R. Civ. P. 166a(c). Summary judgments may not be affirmed or reversed on grounds not expressly set forth in the motions presented to the trial court. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979). It must be based only on the grounds expressly presented in the motion, and a court may not rely on briefs or summary judgment evidence in determining whether grounds are expressly presented. McConnell, 858 S.W.2d at 339. Here, the motion clearly presents the grounds for summary judgment. Appellee argues that the clerk's record does not contain evidence appellants referred to in their appellate brief. However, the supplemental clerk's record contains all evidence not in the clerk's record used by the appellant to brief their arguments against the motion. The proper inquiry on appeal of summary judgment is whether the appellant fulfilled his initial burden 1) to establish as a matter of law that there remains no genuine issue of material fact as to one or more essential elements of the plaintiff's cause of action or 2) to establish his affirmative defense to the plaintiff's cause of action as a matter of law. Rhone-Poulenc, Inc. v. Kenda Steel, 997 S.W.2d 217, 222 (Tex. 1999); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant must be taken as true, with every reasonable inference indulged in favor of the non-movant, and any doubts resolved in his favor. Nixon, 690 S.W.2d at 549. Once the movant establishes an affirmative defense which would bar the suit as a matter of law, the non-movant must then produce summary judgment proof raising a fact issue in avoidance of the affirmative defense. Cameron County v. Carrillo, 7 S.W.3d 706, 711 (Tex. App.--Corpus Christi 1999, no pet.). Summary Judgment Evidence The summary judgment evidence reveals that appellants' van collided in a head-on collision with a pickup truck driven by Joseph McConnell. McConnell was headed the wrong way on a divided highway. The collision resulted in injuries and fatalities. The collision involved no vehicles other than the appellants' van and McConnell's truck. McConnell, dead at the scene, had a blood alcohol level of one hundred eighteen milligrams per deciliter. His estate settled out of court with the appellants and is not a party to this suit. Prior to the collision, McConnell stopped at a convenience store in Three Rivers. The clerks in the store testified that McConnell was acting with bizarre and inappropriate manners and that he had admitted to having been drinking. McConnell hit a utilities pole outside of the convenience store in Three Rivers and then left the scene. It was reported as a hit and run, and City of Three Rivers Police Officer Vance Roberts pulled over McConnell a few minutes after he left the convenience store. As he was questioning McConnell, Live Oak County Deputies Glenn Thompson and Vincent Roberts arrived and observed McConnell pass sobriety tests administered by Officer Vance Roberts. Since the incident was outside of the city limits, Live Oak County Deputy Thompson took over. He had McConnell drive approximately one and a half to two miles back to the convenience store. Deputies Thompson and Vincent Roberts observed McConnell drive without any signs of intoxication. After returning to the convenience store, Deputy Thompson determined that the only damage from McConnell's impact on the telephone pole was the tripping of a circuit breaker that caused the power to go out in the store. There was no property damage. City of Three Rivers Officer Vance Roberts had informed Deputy Thompson that McConnell had an expired driver's license and that he was under medical advisory review. The license had expired ten days prior to the incident. McConnell explained that a heavy work schedule as surveyor had prevented him from renewing his license and that the medical advisory review pertained to a brief stay at a state hospital for depression. A utility company employee came and fixed the electricity, and Deputy Thompson allowed McConnell to leave without a citation for the expired driver's license or for hitting the utilities pole. Live Oak County Deputy Vincent Roberts followed McConnell because he did not drive in the direction he said he was going to go, but made no attempt to pull him over, and then lost sight of him. Soon thereafter, McConnell was reported to the police for pulling onto the lawn of a private residence and having smelled strongly of alcohol. McConnell then headed south in the northbound lanes of U.S. 281. Deputy Vincent Roberts received the report and spotted McConnell's taillights traveling on the wrong side of the highway. Deputy Vincent Roberts activated his lights and siren and drove after him in the southbound lanes of the highway. Very soon after Deputy Vincent Roberts was able to get parallel with McConnell's truck, the collision occurred. Sovereign Immunity Live Oak County is a political subdivision of the State of Texas and is not liable for damages unless a negligent or wrongful act falls within a statutory waiver of immunity. Texas Highway Dept. v. Webber, 219 S.W.2d 70 (Tex. 1949). A government entity may be liable for police negligence in police pursuits where third parties are injured. City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994). The pertinent limitation to governmental immunity is set out in the Texas Tort Claims Act: 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 the 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 should 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 (Vernon 1997). The waiver of immunity under the Texas Tort Claims Act is subject to Sections 101.055(3) and 101.056 of the Civil Practices and Remedies Code. Section 101.055(3) states in its pertinent part: This chapter does not apply to a claim arising: (3) from the failure to provide or the method of providing police or fire protection. Tex. Civ. Prac. & Rem. Code Ann. § 101.055(3) (Vernon 1997). Section 101.056 states: This chapter does not apply to a claim based on: (1) The failure of a governmental unit to perform an act that the unit is not required by law to perform; or (2) The governmental unit's decision not to perform an act or its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the direction of a governmental unit. Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (Vernon 1997). The supreme court has interpreted Sections 101.055(3) and 101.056 as meaning that the method of performing an act refers to the governmental decision or plan for providing police protection. Driskill v. State, 787 S.W.2d 369, 370 (Tex. 1990); State v. Terrell, 558 S.W.2d 784, 787-88 (Tex. 1979). The method that the Live Oak Deputy chose to try to prevent a wreck was to approach McConnell from the highway parallel to where McConnell was driving. The fact that the deputy was not successful in preventing the wreck does not mean that there was no decision or plan for providing police protection. Appellant argues that the court should find police negligence under the rational that, "The intervention of negligent or even reckless behavior by the driver of the car where the police pursues, does not . . . require the conclusion there is a lack of proximate cause between police negligence and the innocent victims' injuries." Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). In Travis, police officers pursued a high speed chase of a suspect of solicitation of prostitution the wrong way on a divided highway at night. A head-on collision resulted. The case before the court today is different. The car that the Live Oak County Deputy was pursuing was not in flight from the law when it entered the wrong lane of the highway. At his own initiative, McConnell was driving at high risk of causing a serious collision. The deputy was not behind him on the wrong side of the divided highway; he was approaching from a parallel position. In Travis, the collision probably would not have happened if the police had not been in pursuit. In this case, Deputy Vincent Robert's interest in his pursuit was to prevent a wreck; McConnell probably would have caused the wreck regardless of whether a police officer had tried to stop him. Hence, Travis is not applicable to the facts of this case. Furthermore, Section 101.021(2) requires the use or condition of tangible personal property to be the proximate cause of the personal injury or death in order for the State to lose its immunity. The use or condition of no tangible property owned by the county caused this collision. The Ninth Court of Appeals found no waiver of immunity when a police car was used to transport an injured person to jail, where she died, instead of to a hospital, for treatment. City of Orange v. Jackson, 927 S.W.2d 784 (Tex. App.--Beaumont 1996, no writ). There was no negligence in the condition or the use of the vehicle itself that caused the plaintiff's death; rather, it was the officers' decision not to provide necessary medical treatment that caused her death. Therefore there was no waiver of immunity. Id. at 787. In the case before us today, the appellants argue that a police car was negligently used to pursue McConnell, and that the siren and flashing lights from the Live Oak County Deputy's patrol car distracted the appellant and caused the collision. As in City of Orange, the use and condition of the police car and equipment did not cause the collision. Under this rational, the cause would have been the deputy's decision to follow McConnell and try to get him off of the road. The car, siren and police lights were not negligently used or in negligently kept condition; they were used properly according to the deputy's decision to get a drunk driver off of the wrong side of the highway. It is possible that Deputy Vincent Roberts could have attempted to get McConnell off of the road without using his siren and police lights, but in doing so, he would not have fully warned other drivers on either side of the highway of the dangers of a police action in progress. The supreme court has recently ruled on the difference between causation by the condition or use of property and causation by negligent actions by government employees. In this case, a patient involuntarily committed to a county mental health facility for severe depression eloped through hospital doors that were negligently left unlocked and threw himself in front of a truck. Dallas County Mental Health and Retardation v. Bossley, 968 S.W.2d 339 (Tex. 1998). The collision that ensued was not caused by the lock on the hospital door; it was caused by the state hospital's failure to keep the patient inside of the hospital door. Id. at 343. Here, as in both Dallas County Mental Health and Retardation and City of Orange, there was no statutory waiver of the case at bar. "The requirement of causation is more than a mere involvement [of property]." Id. at 343. "If only involvement were required, the waiver of immunity would be virtually unlimited, since few injuries do not somehow involve tangible personal or real property." Id. at 343. "Requiring only that a condition or use of property be involved would conflict with the Act's basic purpose of waiving immunity only to a limited degree." Id. at 343. Here, the siren and police lights are not a proper link between the damage suffered by appellants and the police force. They do no more than provide appellants with a condition that makes liability for the injury possible under the statute. Thus, since the County cannot be held liable for actions of its officers under the doctrine of sovereign immunity as a matter of law, there is no statutory waiver of immunity. Official Immunity We now address the trial court's denial of summary judgment of the deputies' qualified immunity defense based on the deputies' official, or qualified immunity claim. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(5) (Vernon 1995); Kilburn, 849 S.W.2d at 812; Vega, 951 S.W.2d at 27. Under the Texas Tort Claims Act, a governmental entity may bear liability for its employees' torts if, among other things, "the employee would be personally liable to the claimant according to Texas law . . . ." Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1) (Vernon 1997). Conversely, if qualified immunity protects the employee from liability, then the governmental entity's sovereign immunity remains intact. Kilburn, 849 S.W.2d at 812; DeWitt v. Harris County, 904 S.W.2d 650, 656 (Tex. 1995). In this case, a sovereign immunity claim may be based on an individual's assertion of qualified immunity and falls within the scope of § 51.014(5). Kilburn, 849 S.W.2d at 812; City of Mission v. Ramirez, 865 S.W.2d 579, 582 (Tex. App.--Corpus Christi 1993, no writ). Official or qualified immunity is an affirmative defense. City of Lancaster v. Chambers, 883 S.W.2d at 653. When seeking summary judgment on an affirmative defense, the burden is on the defendant to establish all essential elements of the defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). No disputed question of material fact can remain on the affirmative defense. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990). Official immunity is meant to protect government operations from the harassment of litigation, not to shield police officers or other government employees from liability. Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994); See Westfall v. Erwin, 484 U.S. 292 (1988). Police officers are entitled to official immunity from suits arising from the performance of their 1) discretionary duties 2) in good faith as long as they are 3) acting within the scope of their authority. City of Lancaster, 883 S.W.2d at 653. On appeal, we must determine whether the summary judgment evidence proves that Deputies Glenn Thompson and Vincent Roberts are entitled to official immunity as a matter of law, i.e., whether the evidence shows that they were performing a discretionary function, acting in good faith, and within the scope of their authority. Appellants make no argument that the deputies' actions did not involve discretionary duties performed within the scope of their authority. After reviewing the evidence, we conclude that the police deputies were performing a discretionary function within the scope of their authority. Thus, the disputed issue is whether appellants sufficiently proved the element of good faith as a matter of law. In City of Lancaster, the supreme court stated that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." City of Lancaster, 883 S.W.2d at 656. A police officer acts in good faith in a high speed chase if a reasonably prudent officer, under the same or similar circumstances, could have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm to the public in continuing the pursuit. Id. at 656. The "could have believed" aspect of the good faith test means that, in order to be entitled to summary judgment, a police officer must prove that a reasonably prudent officer might have had the same belief. Id. at 656-57. Immunity should be recognized if officers of reasonable competence could disagree on the issue. Id. at 657 n.8. Appellants attack the motion for summary judgment, contending that Deputy Vincent Roberts failed to act as a reasonably prudent officer by pursuing McConnell, creating a clear risk of harm to the public that was not outweighed by the necessity of McConnell's apprehension. Appellants further contend that Deputy Thompson failed to act as a reasonably prudent officer because he did not administer any field sobriety test at McConnell's previous stop, ignored signs of intoxication, and released McConnell with a suspended license. Both deputies acted as reasonably prudent officers. As discussed above, Deputy Vincent Roberts acted as a reasonably prudent officer when he pursued McConnell instead of letting him continue to drive rapidly on the wrong side of the divided highway. Deputy Thompson could have administered field sobriety tests on McConnell, but he had already witnessed McConnell pass the sobriety tests administered by Three Rivers Police Officer Vance Roberts and then drive approximately one and a half to two miles back to the convenience store without any signs of intoxication. Using his discretion, Deputy Thompson decided that McConnell was not an intoxicated driver and decided not to arrest McConnell for driving with an expired license that was under medical review. Appellants have not adequately substantiated their allegations about a lack of good faith. Appellants' expert has failed to present controverting evidence that no reasonable officer in Deputy Thompson's position could have thought the facts were such as to justify his actions. He mischaracterizes the events and conditions of the scenario before the wreck. His conclusions are based on incorrect information, and he makes conclusory assertions that are not substantiated in the record. An expert's testimony will support summary judgment only if it is, "clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted" Tex. R. Civ. P. 166a(c). "Conclusory statements by an expert are insufficient to support or defeat summary judgment." Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). The supreme court has articulated that an expert testifying about good faith must address what a reasonable officer could have believed under the circumstances and must substantiate each element of the Chambers test. Wadewitz, 951 S.W.2d at 466-67. Appellants' expert witness mistakenly described the expired license as a suspended license. To have an expired license, a driver need only fail to renew his license on time. Tex. Transp. Code Ann. § 521.271 (Vernon 1999). McConnell's license was a week and a half overdue. A driver must be incapable of safely operating a motor vehicle, or have affirmatively acted in violation of the law or of a restriction on his license for his license to be suspended. Tex. Transp. Code Ann. §§ 521.291, 521.294 (Vernon 1999). Driving with a suspended license is a more serious offense. Appellants' expert witness mistakenly contradicted the record by stating that McConnell was not given a sobriety test. Both County Deputies witnessed McConnell pass a sobriety test administered by the City of Three Rivers Police Officer. Since driving with a suspended license is a more serious offense than driving with an expired license, and not administering any sobriety tests under the conditions of this incident would have clearly been grounds for an attack on the deputities' good faith, the conclusions of appellants' expert are not well grounded. Appellants' expert determined that McConnell fled detainment and was in a state of panic, with no facts to support this conclusion. The record states that he was investigated and allowed to leave. Since there is no proof in the record to support this conclusion, this attack on the officers' good faith is not adequately substantiated. Appellants' summary judgment proof does not meet the Wadewitz standard. They therefore have not produced summary judgment proof raising a fact issue in avoidance of the affirmative defense of official immunity. Motion for new trial An appellate court may only reverse a trial court's denial of a motion for new trial if the trial court abused its discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). Appellants base their motion for a new trial upon a claim of newly discovered evidence. The evidence they wish to introduce is a toxicologist's report that describes the effects alcohol consumption has on an individual, and the testimony of a student studying to be an emergency medical technician regarding a conversation about McConnell's condition he had with Deputy Vincent Roberts before the accident. A party who moves for new trial based upon the existence of newly discovered evidence has the burden of showing: 1) that the evidence has come to his knowledge since trial, 2) that it is not due to a lack of due diligence that the evidence did not come sooner, 3) that the evidence is not cumulative, and 4) that the evidence is so material that it would probably produce a different result if a new trial were granted. Jackson v. VanWinkle, 660 S.W.2d 807, 809 (Tex. 1983). Appellants have done little more than present some additional evidence. They have not shown that the evidence has come to their knowledge since the date the summary judgment was granted,(2) that they could not have had the evidence at an earlier time, or that the evidence would change the result of the trial. We see no abuse of discretion in the trial court's decision not to grant the motion for a new trial. We affirm the judgment of the trial court. MELCHOR CHAVEZ Justice Do not publish. Tex. R. App. P. 47.3 Opinion delivered and filed this the 8th day of June, 2000. 1. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(5) (Vernon Supp. 1999). 2. Summary judgment hearings are characterized as "trials" for the purpose of requests for a motion for a new trial based on newly discovered evidence. Goswami v. Metropolitan Sav. and Loan Assoc., 751 S.W.2d 487, 490 (Tex. 1988).