holding that summary-judgment evidence was sufficient to raise a fact issue as to cause in fact where suspect driver and chasing police officers all entered oneway access road going the wrong direction and suspect driver crashed head-on into plaintiffs’ car, and defense counsel had conceded that “fact issues remain.”
How later courts described this case
- holding that summary-judgment evidence was sufficient to raise a fact issue as to cause in fact where suspect driver and chasing police officers all entered oneway access road going the wrong direction and suspect driver crashed head-on into plaintiffs’ car, and defense counsel had conceded that “fact issues remain.”
- observing that official immunity serves the following important public policies: avoiding inhibition of discretionary action, minimizing deterrence of qualified people from government service, avoiding costs of unnecessary trial, and insulating officials from burdensome discovery
- concluding testimony that officers knew crash was possible when they gave chase raised fact issue that officers’ conduct was proximate cause of crash that caused plaintiffs’ injuries
- stating that, under the facts before it, the officers “were performing discretionary duties” but that a fact question existed regarding their good faith
Written by the judges who cited it.
The opinion
COOK, Justice,
dissenting.
I respectfully dissent. In this case, all the police officers and the City are entitled to prevail as a matter of law and, therefore, the court of appeals’ judgment should be affirmed. As a matter of law, under the facts in this ease, the police officers are not a proximate cause of the injuries. The Court also ignores many of the facts in this case. After the accident, the suspect stated to investigating officers that he fled to avoid apprehension because of outstanding warrants for his arrest: one for armed robbery and one on a motion to revoke his probation for a burglary conviction. Atkins was a convicted felon in violation of his parole.
Moreover, the entire chase took place in less than two minutes. The officers’ decision to pursue Atkins did not play a part in bringing about the accident. Atkins had decided to run for it before the officers ever began their pursuit.
Proximate cause is an essential element of actionable negligence. Payne & Keller v. P.P.G. Industries, 793 S.W.2d 956, 958 (Tex.1990). Therefore, the summary judgment in favor of the City must be affirmed if the City’s summary judgment evidence shows that, as a matter of law, the police officers were not a proximate cause of the accident. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (1970). I believe that the City’s evidence establishes this as a matter of law.
In Dent v. City of Dallas, 729 S.W.2d 114 (Tex.App.—Dallas 1986, writ ref’d n.r.e.), the court examined the issue of a police officer’s liability to an innocent third party who is injured or killed in an accident involving a suspect being pursued by a police officer. The court held that the sole proximate cause of the accident, as a matter of law, was the suspect’s grossly negligent behavior in fleeing from the police officer and by ignoring all traffic laws during his flight until he crashed into the decedent. Id. at 116 . In this case, the court of appeals looked to Dent for instruction and determined that, as a matter of law, in circumstances such as these, the police officers are not a proximate cause of the injuries. With this refinement, the court of appeals followed the reasoning of Dent .
The police officers were not a proximate cause of the accident. In holding other *106 wise, the Court ignores substantial authority from other jurisdictions that recognizes that an officer’s conduct in electing to pursue a lawbreaker is not the proximate cause of injuries resulting from the lawbreaker’s negligence. See United States v. Hutchins, 268 F.2d 69, 72 (6th Cir.1959); State of West Virginia v. Fidelity and Casualty Co. of N.Y., 263 F.Supp. 88, 90-91 (S.D.W.Va.1967); Pagels v. City and County of San Francisco, 135 Cal.App.2d 152, 153-56 , 286 P.2d 877, 878-79 (1955); Draper v. City of Los Angeles, 91 Cal.App.2d 315, 318 , 205 P.2d 46, 48 (1949); City of Miami v. Horne, 198 So.2d 10, 12-13 (Fla.1967); Downs v. Camp, 113 Ill. App.2d 221, 227 , 252 N.E.2d 46, 50 (1969); Bailey v. L.W. Edison Charitable Foundation, 152 Ind.App. 460, 466 , 284 N.E.2d 141, 145 (1972); Thornton v. Shore, 233 Kan. 737, 753 , 666 P.2d 655, 668 (1983); Chambers v. Ideal Pure Milk Co., 245 S.W.2d 589, 590-91 (Ky.1952); Oberkramer v. City of Ellisville, 706 S.W.2d 440, 442 (Mo.1986); Blanchard v. Town of Kearny, 145 N.J.Super. 246, 248 , 367 A.2d 464, 465 (Law Div.1976); Roll v. Timberman, 94 N.J.Super. 530, 536 , 229 A.2d 281, 284 (1967); Silva v. City of Albuquerque, 94 N.M. 332, 333 , 610 P.2d 219, 220 (Ct.App. 1980); Mitchell v. State, 108 A.D.2d 1033, 1034 , 486 N.Y.S.2d 97, 99 (1985); Simmen v. State, 81 A.D.2d 398, 400 , 442 N.Y.S.2d 216, 218 (1981); Stanton v. State, 29 A.D.2d 612, 612-14 , 285 N.Y.S.2d 964, 967-69 (1967); Wrubel v. State, 11 Misc.2d 878, 879-81 , 174 N.Y.S.2d 687, 689-90 (Ct.Cl. 1958); McMillan v. Newton, 63 N.C.App. 751, 753 , 306 S.E.2d 470, 472 (1983); Jackson v. Olson, 77 Or.App. 41, 44-47 , 712 P.2d 128, 130-31 (1985).
The Court requires officers to abandon their instinct, training and experience while attempting to perform their legally imposed duties. Police officers are required to exercise their discretion in performing police duties. The Court’s opinion will deter officers’ willingness to execute their office with decisiveness and the judgment required for the public welfare.
Each year thousands of innocent Americans are killed by drunken drivers. Because of the lack of action by our elected representatives to take steps necessary to rid our streets of drunken drivers, the role of the men and women in blue has become even more important. Unfortunately, a significant number of hot pursuits involve drivers trying to avoid a DWI-drug arrest. See Operational Planning Section of the California Highway Patrol, Pursuit Study 72 (1983). By discouraging the pursuit of these fugitives, the Court would add to this already overwhelming problem.
Additionally, nearly thirty-six million Americans were victims of serious crimes in 1989, including nearly nineteen thousand murder victims. Witkin, Cops Under Fire, U.S. News & World Report, Dec. 3, 1990, at 33. In the first six months of 1990, reported violent crimes increased by ten percent over the comparable period the previous year. Id.
Furthermore, official immunity protects the police officers under the facts in this case. It is important to remember that the thin blue line is the only thing that separates each of us from the jungle that is increasingly overtaking our society. To hold the police officers liable for their conduct in this case would be to make them the insurers for the negligent damage caused by those who violate our laws. The police officers of this state should not be liable for the negligent conduct of drug dealers, drunken drivers, and other felons.