Opinion

Telthorster v. Tennell

  • 45 Tex. Sup. Ct. J. 948
  • 92 S.W.3d 457
  • 2002 Tex. LEXIS 97
  • 2001 WL 1898483
Court
Texas Supreme Court
Filed
Jun 27, 2002
Status
Published
Author
Owen
On the bench
O'Neill, Phillips, Owen, Hankinson, Jefferson, Rodriguez, Enoch, Hecht, Baker
Cited by
230 cases
Authority
More cited than 13.0%

recognizing need/risk analysis from Chambers was “crafted in an attempt to tailor a test that would better weigh the risks that high-speed chases and responses pose to the general public” and holding inherent risk to general public previously considered in cases involving high-speed chases was not implicated in cases involving injuries to suspect by law enforcement officer during arrest

How later courts described this case

  • recognizing need/risk analysis from Chambers was “crafted in an attempt to tailor a test that would better weigh the risks that high-speed chases and responses pose to the general public” and holding inherent risk to general public previously considered in cases involving high-speed chases was not implicated in cases involving injuries to suspect by law enforcement officer during arrest
  • holding officer acted in good faith when his drawn gun inadvertently discharged and injured suspect and noting that the court of appeals’ “focus on the fact that [the suspect] turned out to be unarmed and thus presented no risk of harm” was “unduly informed by hindsight”
  • holding plaintiff did not controvert good faith where evidence was conclusory and did not establish that no reasonable officer would have been concerned for his safety under the particular facts of the case
  • noting that in University of Houston v. Clark “[w]e held that a police officer’s summary judgment proof does not offer a suitable basis for determining good faith unless it sufficiently assesses the Wadewitz need/risk factors” (citing 38 S.W.3d 578, 584-85 (Tex. 2000))

Written by the judges who cited it.

The opinion

Justice OWEN,

concurring.

The Court correctly decides the only issue that is before it, and I join the Court’s opinion. The Petitioner in this case, Mark Telthorster, asked the Court to decide only whether the need-versus-risk factors applied in Wadewitz v. Montgomery, 951 S.W.2d 464 (Tex.1997), an emergency response case, should be applied when a police officer arrests a suspect. Telthorster argues in this Court that “official immunity protects a police officer if the act was (i) made in exercise of a discretionary duty; (ii) performed in good faith; (iii) in the scope of his or her official authority.” Telthorster has not urged this Court to recognize a privilege similar to that described in section 132 of the Restatement (Second) of Torts for law enforcement officials when they use force for the purpose of effecting an arrest or recapture. The briefing in this case does not advocate any type of privilege or similar rule of law in negligence cases.

Thus, while I think that the privilege Justice Enoch’s concurring opinion would apply may have merit, I would not decide whether to recognize such a privilege until we have full briefing and argument on that point.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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