Linda Jackson and Terry Jackson v. City of Baytown

Affirmed and Memorandum Opinion filed May 7, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00231-CV

LINDA JACKSON AND TERRY JACKSON, Appellants

V.

CITY OF BAYTOWN, Appellee

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 2013-09168

MEMORANDUM OPINION

This is a personal-injury case arising from a police pursuit. Appellants Linda

and Terry Jackson were injured when a suspect fleeing from a police car driven by

Baytown Police Officer Aaron Corrales crashed his pickup truck into their car. The

Jacksons sued Aaron Corrales, in his official capacity as an officer with the

Baytown Police Department, and the City of Baytown for negligence and

negligence per se.1 The Jacksons claimed that Baytown waived its sovereign

immunity under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code

Ann. § 101.021 (West 2011). Baytown filed a plea to the jurisdiction and motion

for summary judgment, asserting sovereign immunity derived from Corrales’s

official immunity. The trial court granted Baytown’s plea to the jurisdiction and

motion for summary judgment. This appeal followed.

The Jacksons present two issues on appeal. In their first issue, the Jacksons

argue that Baytown is not protected from liability by sovereign immunity because

it did not conclusively establish that Corrales was protected by official immunity.

In their second issue, the Jacksons argue in the alternative that their summary-

judgment evidence was sufficient to controvert Baytown’s. Because Baytown’s

evidence conclusively established the good-faith element of their official-immunity

defense and the Jacksons’ evidence did not raise a fact issue on good faith, we

affirm the trial court’s order granting Baytown’s motion for summary judgment.2

I. Standard of Review—Summary Judgment

We review the trial court’s rulings on a motion for summary judgment de

novo. Tittizer v. Union Gas Corp., 171 S.W.3d 857, 860 (Tex. 2005). As the

movant, Baytown had to establish that no genuine issue of material fact exists and

that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); White v.

Tackett, 173 S.W.3d 149, 151 (Tex. App.—Fort Worth 2005, no pet.). We view the

summary-judgment evidence and its reasonable inferences in the light most

favorable to the respondents, the Jacksons. Tackett, 173 S.W.3d at 151. We

disregard conflicts in the evidence and accept as true evidence favorable to the

1

The Jacksons nonsuited Corrales.

2

Because summary judgment in Baytown’s favor was proper, we need not determine

whether the court erred in granting Baytown’s plea to the jurisdiction. See Tex. R. App. P. 47.1.

2

respondents. Id. Evidence favorable to the movant will not be considered unless it

is uncontroverted. Id. at 151–52. Uncontroverted evidence from an interested

witness does nothing more than raise a fact issue unless it is clear, positive and

direct, otherwise credible and free from contradictions and inconsistencies, and

could have been readily controverted. Id. at 152.

A defendant is entitled to summary judgment on an affirmative defense such

as official immunity if the defendant conclusively proves all the elements of the

affirmative defense. Id. The defendant must present evidence establishing each

element of the affirmative defense as a matter of law. Id.

II. Applicable Law—Official Immunity

Official immunity is an affirmative defense that shields governmental

employees from personal liability so that they are encouraged to vigorously

perform their official duties. Telthorster v. Tennell, 92 S.W.3d 457, 460–61 (Tex.

2002). Sovereign immunity shields a governmental employer from vicarious

liability when official immunity shields the governmental employee from liability.

Univ. of Hous. v. Clark, 38 S.W.3d 578, 580 (Tex. 2000); see Tex. Civ. Prac. &

Rem. Code Ann. § 101.021. A governmental employee is entitled to official

immunity for (1) the performance of discretionary duties (2) that are within the

scope of the employee’s authority, (3) provided that the employee acts in good

faith. Clark, 38 S.W.3d at 580. To obtain summary judgment on the basis of

official immunity, a governmental employee must conclusively establish each of

these three elements. Id. The Jacksons dispute only the third element—good faith.

To establish good faith in a police pursuit case, an officer must conclusively

prove that a reasonably prudent officer in the same or similar circumstances could

agree that the need to immediately apprehend the suspect outweighed the risk of

harm to the public in continuing the pursuit, taking into account all the factors of

3

Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997). Clark, 38 S.W.3d at

583. The officer must prove only that a reasonably prudent officer might have

believed he should have continued the pursuit. Clark, 38 S.W.3d at 581. An officer

acts in bad faith only if he could not have reasonably reached the decision in

question. Id.

[G]ood faith depends on how a reasonably prudent officer could have

assessed both the need to which an officer responds and the risks of

the officer’s course of action, based on the officer’s perception of the

facts at the time of the event. The “need” aspect of the test refers to

the urgency of the circumstances requiring police intervention. In the

context of an emergency response, need is determined by factors such

as [1] the seriousness of the crime or accident to which the officer

responds, [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, are available to achieve a

comparable result. The “risk” aspect of good faith, on the other hand,

refers to the countervailing public safety concerns: [1] the nature and

severity of harm that the officer’s actions could cause (including

injuries to bystanders as well as the possibility that an accident would

prevent the officer from reaching the scene of the emergency), [2] the

likelihood that any harm would occur, and [3] whether any risk of

harm would be clear to a reasonably prudent officer.

Wadewitz, 951 S.W.2d at 467 (internal citations omitted).

Police pursuits require a continued assessment of need and risk because

information known to a public official may change rapidly and offer little time for

deliberation. Clark, 38 S.W.3d at 582–83. An officer is not required to

affirmatively negate the existence of all circumstances or risks that did not actually

exist. Id. at 586. The balancing of need versus risk does not prevent the officer

from pursuing a suspect for traffic violations or in residential or other populated or

high traffic areas. Id. at 583.

If the officer conclusively establishes good faith, the plaintiff must

4

controvert the officer’s evidence to avoid summary judgment. To rebut an officer’s

prima facie showing of good faith, a plaintiff must establish that no reasonable

person in the defendant’s position could have thought the facts were such that they

justified the defendant’s acts. City of Pasadena v. Belle, 297 S.W.3d 525, 530–31

(Tex. App.—Houston [14th Dist.] 2009, no pet.). “If officers of reasonable

competence could disagree on this issue, the officer acted in good faith as a matter

of law.” Telthorster, 92 S.W.3d at 465. The plaintiff cannot controvert the

defendant’s good-faith evidence by showing that the defendant was negligent or

that reasonably competent officers could disagree on the issue. Id. at 467. The

plaintiff must do more than show that a reasonably prudent officer could have

decided to stop the pursuit. City of Lancaster v. Chambers, 883 S.W.2d 650, 657

(Tex. 1994).

III. Discussion

A. The evidence presented by Baytown conclusively established that

Corrales acted in good faith.

1. Baytown’s Summary-Judgment Evidence

In this case, the facts related to what occurred during the attempted traffic

stop and ensuing high-speed pursuit are essentially undisputed because the

dashboard camera footage was part of the summary-judgment evidence. In addition

to the video, Baytown provided: Officer Corrales’s affidavit; an excerpt from

Corrales’s deposition testimony; the General Offense Report for the fleeing

suspect, which included Corrales’s narrative of what happened; the deposition

testimony of Officer Chad Johnson; findings from a Pursuit Incident Data Form

submitted by Corrales’s supervisor, Officer Mark Freeman; and the affidavit of

Freeman. Officer Johnson did not observe the pursuit and his testimony contained

little on the subject of the actual circumstances faced by Corrales; therefore,

5

Johnson’s testimony has little bearing on whether Officer Corrales acted in good

faith. Although a prima facie showing of good faith in a summary-judgment setting

can be established from affidavits of co-defendants or supervisors, Ho v. Univ. of

Tex. at Arlington, 984 S.W.2d 672, 688 (Tex. App.—Amarillo 1998, pet. denied),

we need not consider Freeman’s affidavit because we conclude Corrales’s

affidavit, his deposition testimony, his written narrative as found in the offense

report, and the video footage are sufficient to establish that he acted in good faith.3

See City of La Joya v. Herr, 41 S.W.3d 755, 761 (Tex. App.—Corpus Christi 2001,

no pet.) (good faith can be established by officer’s own testimony). This evidence

shows the following:

At 11:34 p.m. on Friday, March 12, 2012, Corrales was on patrol traveling

south on Garth Road when he clocked a northbound pickup truck traveling twenty

miles per hour faster than the posted speed limit. The weather was clear, visibility

was good, and the roads were dry. Corrales turned his car around and initiated a

routine traffic stop. He activated his emergency lights and sirens and accelerated

towards the pickup truck. The driver, who was later identified as Codey

Krustchinsky, pulled over and slowed down as if to stop but then accelerated away

from Corrales. Corrales notified dispatch and called pursuit of the fleeing pickup

truck.

During his flight, Krustchinsky performed a series of maneuvers that were

illegal and dangerous to himself, his passenger, and others on the road. He ran

multiple red lights and a stop sign. He drove on the wrong side of the road. He

passed cars on the shoulder. According to Corrales, Krustchinsky reached speeds

in excess of 100 miles per hour. Based on Krustchinsky’s behavior, Corrales

3

Because we do not consider Freeman’s affidavit in determining whether Corrales acted

in good faith, we do not reach the Jacksons’ sub-issue pertaining to the admissibility of

Freeman’s affidavit. See Tex. R. App. P. 47.1.

6

determined that Krustchinsky might be intoxicated and that he posed a serious

threat to public safety. Corrales concluded that Krustchinsky needed to be stopped.

Corrales noted in his affidavit that he considered the traffic conditions and

the number of pedestrians present. The video shows that no pedestrians were

present at any time during the pursuit. The video also shows that traffic was

moderate during the initial phases of the pursuit. The pursuit began in a

commercial area that was well lit. Corrales asserted that he considered terminating

the pursuit, but he observed a decrease in the amount of traffic after he and

Krustchinsky passed the intersection of Garth Road and Interstate 10. Based on the

change in traffic conditions, Corrales decided to continue the pursuit.

Corrales testified that he approached Krustchinsky’s pickup to obtain the

license plate number but was unable to acquire a positive identification. Corrales

stated that he believed Harris County law-enforcement personnel were deploying

spike strips, but he never received confirmation that these alternative measures had

in fact been deployed.

The pursuit continued northbound on Garth Road until Garth Road

intersected with F.M. 1942. Krustchinsky turned west onto F.M. 1942, running a

stop sign in the process. The video shows that Corrales slowed down at the stop

sign before proceeding through the intersection. Near the end of the pursuit,

Krustchinsky attempted to pass two cars. He passed the first car on the westbound

shoulder and tried to pass a second car, which was driven by the Jacksons, by

veering from the westbound shoulder into the eastbound traffic lanes. During this

maneuver, Krustchinsky rear-ended the Jacksons’ car, sending it careening off the

road and seriously injuring the Jacksons. Corrales was far enough behind

Krustchinsky that he avoided the accident. Krustchinsky stopped his pickup shortly

after the collision, and Corrales detained Krustchinsky and his passenger. The

7

pursuit lasted approximately six minutes.

2. Analysis

The evidence presented by Baytown shows that Corrales assessed the need

for police intervention. Corrales observed Krustchinsky speeding in moderate

traffic in a commercial area late on a Friday night. Corrales initiated a traffic stop.

Krustchinsky pulled over as if to stop but then accelerated away from Corrales.

Krustchinsky violated multiple traffic laws in an effort to evade Corrales.

According to Corrales, Krustchinsky was driving recklessly. Corrales suspected

that Krustchinsky was intoxicated. Krustchinsky’s commission of multiple traffic

violations that put other drivers at risk and—given the day of the week and the

time of night—the possibility that Krustchinsky was intoxicated demonstrated a

need for Corrales to apprehend Krustchinsky. See Tex. Dep’t of Public Safety v.

Rodriguez, 344 S.W.3d 483, 496 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(indicating that officer’s assertion that suspect was driving recklessly could satisfy

the need aspect of the balancing test); see, e.g., City of San Antonio v. Trevino, 217

S.W.3d 591, 595–96 (Tex. App.—San Antonio 2006, no pet.) (need aspect

satisfied when officer saw a car parked in front of a house known for drug and

stolen-vehicle trafficking; the car sped away as the officer approached to

investigate; and the officer later observed the suspect violate numerous traffic

laws).4

4

See also Mem’l Villages Police Dep’t v. Gustafson, No. 01-10-00973-CV, 2011 WL

3612309, at *6 (Tex. App.—Houston [1st Dist.] Aug. 18, 2011, no pet.) (mem. op.) (need aspect

satisfied when the fleeing suspect was unidentified and a person of interest in a string of

burglaries); Royal v. Harris Cnty., No. 14-08-00551-CV, 2010 WL 610604, at *4–*5 (Tex.

App.—Houston [14th Dist.] Feb. 23, 2010, pet. denied) (mem. op.) (need aspect satisfied when

officer observed a vehicle traveling the wrong direction on a toll road at a high rate of speed,

believed the driver was intoxicated, and knew the driver had recently caused an accident); City of

Richmond v. Rodriguez, No. 01-08-00471-CV, 2009 WL 884810, at *5 (Tex. App.—Houston

[1st Dist.] April 2, 2009, no pet.) (mem. op.) (need aspect satisfied when officer observed a

8

The evidence shows that Corrales considered available alternatives. This

factor may be satisfied when the evidence shows that the officer was unable to

obtain the fleeing suspect’s license plate number or otherwise identify the fleeing

suspect. See Clark, 38 S.W.3d at 585; Trevino, 217 S.W.3d at 595–96; Tackett, 173

S.W.3d at 154. Here, Corrales testified that he approached Krustchinsky’s vehicle

but was unable to obtain a complete license plate number. Officer Corrales also

considered the use of spike strips as another alternative means of apprehending

Krustchinsky. He testified to requesting spike strips but was never told whether the

spike strips were deployed. Finally, Corrales acknowledged during his deposition

that ramming the suspect and requesting a roadblock were possible alternatives,

but he noted that these methods were not available because they violated

department policy.

The evidence shows that Corrales assessed the risks of the pursuit. Corrales

acknowledged in his affidavit that pursuits present a risk to public safety. He stated

that he considered the weather and driving conditions as well as the amount of

traffic in deciding whether to pursue Krustchinsky. The video showed that

visibility was good; the weather was clear; and the pavement was dry. When the

pursuit commenced, the streets were well-lit and traffic was moderate. Corrales

motorcycle travelling at night without a headlight at a high rate of speed, posing a danger to

himself, other motorists, and nearby property); Tackett, 173 S.W.3d at 154–55 (need aspect

satisfied when officer considered (1) the fleeing suspect’s speed, (2) unlawful attempts to evade

detention for a mere traffic stop, (3) both suspects’ appearances in comparison to the luxury car

they were in, and (4) the high-crime nature of the area where the officer first observed the

suspects); City of Dallas v. Garcia, No. 05-97-00805-CV, 1998 WL 130060, at *3–*4 (Tex.

App.—Dallas March 24, 1998, no pet.) (not designated for publication) (need aspect satisfied

when officers observed a car run a red light, believed the car might be stolen, and observed the

car violate multiple traffic laws during the pursuit). But see Loftin v. Morales, 187 S.W.3d 533,

541–42 (Tex. App.—Tyler 2005, no pet.) (need aspect was not satisfied when officers pursued a

speeding vehicle for twenty-seven minutes; believed the car was stolen; knew who the car was

registered to and that the car was not reported stolen; and pursued the vehicle at high speeds

through a neighborhood).

9

activated his lights and siren when the pursuit began and kept them on throughout

the pursuit. The video also shows that Corrales consistently slowed down as he

approached intersections with red lights or stop signs, indicating that he was

considering the possibility of a collision and taking precautions to avoid one.

The evidence shows that Corrales continued to assess both the need and the

risks of the pursuit. Corrales testified that he considered terminating the pursuit

near the intersection of Garth Road and I-10. He chose not to do so because traffic

significantly lightened after the intersection. The video confirms his testimony.

During the course of the pursuit, Corrales observed Krustchinsky continue to

violate traffic laws and put other drivers at risk—heightening the need to

apprehend Krustchinsky.

In sum, the evidence shows that Corrales assessed both the need to

apprehend the suspect and the risk of harm to the public when he initiated pursuit

of the suspect and when he chose to continue the pursuit. See Clark, 38 S.W.3d at

581. Corrales addressed the need to stop the suspect based on the seriousness of the

situation as a whole. He stated that he believed the suspect, who was unidentified

at the time, might be intoxicated and was attempting to evade identification and

arrest. Corrales discussed his evaluation of the risks to the public. He observed the

weather and traffic conditions. Based on his evaluation of the needs and risks,

Corrales believed the need to initiate and continue his pursuit of the suspect

outweighed the risk of harm to the public. See id. at 586. The evidence regarding

Corrales’s ongoing balancing of both the need for and the risks associated with the

pursuit conclusively establishes that a reasonable officer in Corrales’s

circumstances could have believed that the need to apprehend the suspect

outweighed a clear risk of harm to the public in continuing, rather than terminating,

10

the pursuit. See Tackett, 173 S.W.3d at 155 (citing Clark, 38 S.W.3d at 587–88).5

We overrule the Jacksons’ first issue.

C. The evidence presented by the Jacksons did not raise a fact issue on

Corrales’s good faith.

We now consider whether the evidence presented by the Jacksons raised a

fact issue on Corrales’s good faith. The Jacksons had to show that no reasonable

officer in Corrales’s position could have believed that the circumstances justified

his conduct. Telthorster, 92 S.W.3d at 466–67. To refute Baytown’s evidence of

good faith, the Jacksons rely primarily on the expert report and deposition

testimony of Dr. George L. Kirkham and a Baytown Police Department General

Order regarding emergency driving and pursuit procedures.

Dr. Kirkham opined in his report that “no reasonably competent law

enforcement officer could possibly conclude that continued pursuit of the suspect

vehicle in this case was justified based on the circumstances described by Officer

Corrales himself and confirmed to exist by the dash camera mounted in his patrol

car.” In support of his conclusion, Dr. Kirkham first asserted that Corrales’s

actions violated the Baytown Police Department’s pursuit policy. An officer’s

5

The Jacksons argue that Corrales’s affidavit and deposition testimony are not valid

summary-judgment evidence because his testimony is contradictory. They first contend

Corrales’s affidavit indicates that he suspected Krustchinsky was intoxicated, but Corrales’s

deposition testimony indicated that he “had no idea what offense [Krustchinsky] might have

committed, if anything at all, other than evading the traffic stop for speeding.” The Jacksons are

mistaken. Corrales asserted in his deposition testimony and in his affidavit that he suspected

Krustchinsky might be intoxicated.

The Jacksons next argue that Corrales’s affidavit and deposition testimony were

contradictory on the subject of his ability to identify Krustchinsky. The salient point in

Corrales’s affidavit and deposition testimony is that he attempted, but was unable, to identify

Krustchinsky during the pursuit. On this record, we cannot say that Corrales’s testimony was

contradictory. Cf. Tex. Dep’t of Public Safety v. Cordes, 85 S.W.3d 342, 347–48 (Tex. App.—

Austin 2002, no pet.) (official immunity not established when officer stated in affidavit that

stopped car did not obstruct his view of intersection but stated in deposition that stopped car did

obstruct his view).

11

good faith is not rebutted merely by evidence that he violated the law or

department policy in making his response. Johnson v. Campbell, 142 S.W.3d 592,

596 (Tex. App.—Texarkana 2004, pet. denied); Williams v. Hous. Firemen’s Relief

& Ret. Fund, 121 S.W.3d 415, 436 (Tex. App.—Houston [1st Dist.] 2003, no pet.);

see Royal, 2010 WL 610604, at *9. Rather, the test of good faith is one of

objective legal reasonableness—that is, whether a reasonable officer could have

believed his or her conduct to be lawful in light of clearly established law and the

information possessed by the officer at the time the conduct occurred. City of

Lancaster, 883 S.W.2d at 656; Williams, 121 S.W.3d at 436.

Section 2.01 of the policy at issue provided:

B. Officers shall balance the need for pursuit and apprehension

against the probability and severity of damage or injury. The

Officer shall consider the seriousness of the offense which the

evader or reckless evader committed.

C. Officers shall not engage in pursuit when it reasonably appears

that the potential harm to person or property arising from such

pursuit outweighs the potential harm threatened by the escaping

offender. In the absence of an outweighing danger to persons or

property, a peace officer shall not engage in pursuit whenever it

reasonably appears that apprehension of the escaping offender

by other means is likely.

The language of the policy suggests that compliance requires a balancing of

interests similar to that required by Wadewitz to establish whether an officer acted

in good faith. The evidence in this case shows that Corrales conducted the

necessary balancing and acted reasonably when deciding to initiate and continue

the pursuit. Therefore, Dr. Kirkham’s assertion that Corrales violated the policy is

not sufficient to show that no reasonable officer could have believed that he

complied with the policy.

Dr. Kirkham next implied that Corrales did not need to pursue Krustchinsky

12

because the basis for the initial stop was a minor traffic infraction. This conclusion

does not alone establish that no reasonable officer could have decided to pursue

Krustchinsky under the particular circumstances confronting Corrales—namely,

that Krustchinsky pretended to pull over; may have committed a felony when he

fled from Corrales, see Tex. Penal Code Ann. § 38.04 (West Supp. 2014)6; violated

numerous traffic regulations; and put the public at risk in his attempt to avoid

apprehension. See Johnson, 142 S.W.3d at 596 (good faith judged on the basis of

what the officer perceived at the time); see also Clark, 38 S.W.3d at 583

(balancing of need-risk factors does not prevent officers from pursuing suspects for

traffic violations).

With regard to other factors pertinent to Corrales’s good faith, Dr. Kirkham

tended to agree with Corrales’s assessment of the situation, which supports a

conclusion that Corrales acted in good faith. For instance, Dr. Kirkham

acknowledged in his deposition that no pedestrians were present during the pursuit.

He conceded that the traffic was lighter once the pursuit passed the intersection of

Garth Road and I-10. He further conceded that the road was dry and the weather

was clear. And, he acknowledged that Corrales was unable to identify

Krustchinsky.7

Dr. Kirkham recognized in his report that Corrales did consider the use of

spike strips as an alternative to continuing the pursuit, but he claimed that Officer

6

The record does not indicate whether Krustchinsky was charged or convicted of any

crimes.

7

The Jacksons contend that the video evidence “demonstrates the truck’s make and

model was likely able to be determined.” To the extent this argument attempts to raise a fact

issue as to whether Corrales was able to identify Krustchinsky during the pursuit, Dr. Kirkham’s

own testimony negates the Jacksons’ position. Dr. Kirkham agreed that Officer Corrales was

never able to identify the vehicle. Cf. Loftin, 187 S.W.3d at 541–42 (officers could have

identified driver when they had the name of the registered owner and knew that car was not

reported stolen).

13

Corrales could have ended the pursuit safely if he had waited for the spike strips to

be deployed. Testimony that a reasonably prudent officer could have decided to

stop the pursuit, however, is not sufficient to controvert an officer’s good faith. See

Chambers, 883 S.W.2d at 657. Furthermore, the evidence indicates only that spike

strips were requested, not that they had been deployed.

Indulging every reasonable inference in favor of the Jacksons, we conclude

that the Jacksons’ evidence is insufficient to controvert Baytown’s proof on good

faith. See Clark, 38 S.W.3d at 587. We overrule the Jacksons’ second issue.

IV. Conclusion

Baytown conclusively established that Corrales acted in good faith. The

Jacksons did not controvert Baytown’s evidence of good faith. Because Corrales is

protected from personal liability based on official immunity, Baytown is protected

from liability under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code

Ann. § 101.021; Clark, 38 S.W.3d at 580. Therefore, summary judgment in favor

of Baytown was proper. See Harris Cnty. v. Ochoa, 881 S.W.2d 884, 890 (Tex.

1994). We affirm the trial court’s judgment.8

/s/ Marc W. Brown

Justice

Panel consists of Justices Jamison, Busby, and Brown.

8

We need not address the city’s argument regarding whether the Jacksons’ injuries arose

from Corrales’s operation or use of a motor-driven vehicle. See Tex. R. App. P. 47.1.

14