# Ervin v. James

> Court of Appeals of Texas · March 10, 1994 · 874 S.W.2d 713

URL: https://www.frixlaw.com/law-library/cases/9773205

## Case

- **Full name:** Edward ERVIN and Keith Lilley, Appellants, v. Bonnie JAMES, Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** March 10, 1994
- **Citations:** 874 S.W.2d 713; 1994 Tex. App. LEXIS 474; 1994 WL 74445
- **Precedential status:** Published
- **Opinion:** Dissent by Sears
- **Judges:** Sears, Lee, Morse
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

SEARS, Justice,
dissenting.
I respectfully dissent.
Appellee sued appellants for personal injuries sustained when appellants allegedly used excessive force to arrest her. Appellants’ affidavits in support of their motion for summary judgment state basically that they arrested appellee because she was assaulting a male citizen, and that they “... never intended to injure Bonnie James in any way....” There is no summary judgment proof that the movants did not use excessive force, and there is no summary judgment proof that movants acted in “good faith.”
Appellee’s affidavit in opposition to appellants’ motion for summary judgment states that she was assaulted by the defendants; that she was knocked to the floor by the defendants and was seriously injured; and that she sustained a fracture of the lateral portion of the clavicle and dislocation of the acromioclavicular joint. Appellee further swears in the affidavit that the appellants “... used greater force than was necessary ... used excessive force ... [and] there was no need to use the force that they used....”
The non-movant is entitled to have all reasonable inferences made and all doubts resolved in her favor. University of Texas Health Science Center at Houston v. Big Train Carpet of El Campo, Inc., 739 S.W.2d 792 (Tex.1987). Governmental immunity is an affirmative defense and the movants must conclusively prove all the elements of the affirmative defense, as a matter of law, such that there is no genuine issue of material fact. Montgomery v. Kennedy, 669 S.W.2d 309, 310-311 (Tex.1984). This court has previously held that in order to establish immunity from personal liability, a government official or employee must establish that: (1) his status or action can be classified as quasi-judicial; (2) his actions were within the scope of his authority; and (3) he acted in good faith. Chapman v. Gonzales, 824 S.W.2d 685 -687 (Tex.App.—Houston [14th Dist.] 1992, writ denied). Although the majority recognizes this hurdle, the opinion leaps the last hurdle for the movants. In dealing with the issue of good faith, the majority opinion finds that the movants’ “proof establishes their subjective belief that they acted in good faith.” (emphasis added) The problem with that statement is that: (1) there is no summary judgment proof establishing the “subjective” belief that the movants acted in good faith; and (2) there is no summary judgment proof of what others would do in the same or similar situation in order to show objective proof that they acted in good faith.
This court has previously dealt with governmental employee immunity in a summary judgment situation, and has found that the affidavits of the officers established “the objective good faith belief ...”, and further, that the affidavit of a non-party to the offense found that the movants had “... in his expert opinion, acted in good faith and in compliance with department policy....” City of Houston v. Newsom, 858 S.W.2d 14, 18 (Tex.App. — Houston [14th Dist.] 1993, no writ). Therefore, in order to establish the affirmative defense in the Newsom case, the movant officers not only established their subjective belief that they acted in good faith, by swearing they acted in good faith in their affidavit, but, they further supplied an affidavit from a non-party showing the non-party’s objective belief that the officers not only acted in good faith but in compliance with department policy. Clearly, we do not have such proof in the summary judgment appeal before us. Not only have the officers failed to allege, much less prove, “good faith” by proof of their subjective intent, but they also have failed to provide evidence of any objective compliance with the good faith requirement.
Justice Comyn, in his concurring opinion in Travis 1 , gave a detailed analysis of what a party claiming immunity must prove in order to support a finding of good faith. He stated:
A proper resolution of the good faith element in the affirmative defense of official immunity requires an inquiry into the permissible intentions of the police officer and *719 the reasonableness of the officer’s actions in light of the risk of harm to the public.
His opinion indicates that both subjective and objective proof of intent are necessary to establish good faith. Justice Cornyn went on to state that an officer fails to act in good faith if:
(1) The officer knows that a clear risk of harm to the public in continuing the pursuit substantially outweighs the need to immediately apprehend the suspect (the subjective element); or,
(2) A reasonably prudent police officer, under the same or similar circumstances would know that the clear risk of harm to the public and continuing the pursuit substantially outweighs the need to immediately apprehend the suspect (the objective element).
Further, once the defendant establishes the prima facie case for an application of the official immunity, a plaintiff need only defeat one of the elements of the affirmative defense in order to defeat a summary judgment. Id. Although Justice Comyn’s opinion focused on police automobile chases, and Justice Robinson’s City of Houston v. New-som (supra), case focused on the discharge of firearms, these standards should also apply to any claim of governmental immunity by a peace officer. In other words, appellee can defeat appellants’ motion for summary judgment by showing either that the officers knew that there was a clear risk of harm to appellee that substantially outweighed the need to immediately apprehend her, or, that reasonably prudent police officers, under the same or similar circumstances, would have known that there was a clear risk of harm to appellee in continuing their aggressive attempts to apprehend her.
Appellee has without question stated facts sufficient to raise a fact question as to “good faith” by stating that: “... I was assaulted and seriously injured by the defendants before I offered any resistance to any act on their part.... I was knocked to the floor by the defendants and was seriously injured as a result and approximate cause of that assault by the defendants_ I sustained a fracture ... [a] dislocation_ [T]he defendants ... used greater force than was necessary to effect an arrest.... [Tjhey used excessive force against me and they caused the injuries ... these injuries are very serious and disabling.... [Tjhere was no need to use the force that they used against me nor to cause this type of injury_” I would find that this affidavit at least raises a fact question as to whether the appellants acted in good faith. Questions of intent, belief, or lack of intent or belief have been held to be uniquely fact questions for the trier of fact after considering all relevant evidence. See Foreca S.A. v. GRD Dev. Co., 758 S.W.2d 744 (Tex.1988), and Kielwein v. Gulf Nuclear Inc., 788 S.W.2d 746 (Tex. App. — Houston [14th Dist.] 1990, no writ).
Although I recognize that an important thrust of governmental immunity is to protect peace officers from claims by criminals of abusive handling, we must be careful to protect the right to seek redress when the force used by officers to effect an arrest outweighs the need to immediately apprehend the suspect, or, when a reasonably prudent officer would know that there was a clear risk of harm to the individual in continuing his actions.
In summation, appellants have failed to prove the affirmative defense of governmental immunity in that they have failed to prove conclusively that they acted in good faith, and that there is no genuine issue of material fact. See Montgomery v. Kennedy, (supra), 669 S.W.2d at 310-311 . Unless the movants conclusively establish the affirmative defense, the non-movant plaintiff has no burden in response to a motion for summary judgment filed on the basis of an affirmative defense. Torres v. Western Casualty & Sur. Co. 457 S.W.2d 50, 52 (Tex.1970). Therefore, the fact that the majority finds appellees’ affidavit in opposition to be conclusional, is of no moment. She didn’t even have to file a controverting affidavit. I would affirm the judgment of the trial court.
. Travis v. City of Mesquite, 830 S.W.2d 94, 104 (Tex.1992).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9773205. Public record. Not legal advice.