City of Hous. v. Sauls

690 S.W.3d 60

CITY OF HOUSTON, Petitioner,

v.Catrennia Foreman SAULS, Individually and as Representative of the Estate of Dwayne Foreman, Deceased; and Tristena Christian, as Next Friend of D.F., a Minor, Respondents

No. 22-1074

Supreme Court of Texas.

Argued January 31, 2024

OPINION DELIVERED: May 10, 2024

On Petition for Review from the Court of Appeals for the Fourteenth District of Texas

Kyle D. Highful, for Other interested party.

Michael Patrick Doyle, Patrick M. Dennis, Margaret E. Bryant, Houston, Jeffrey I. Avery, for Respondent.

Suzanne R. Chauvin, Houston, Arturo G. Michel, Christy L. Martin, for Petitioner.

Justice Devine delivered the opinion of the Court.

In this interlocutory appeal, we decide whether the City of Houston is immune from a wrongful-death suit after its police officer, while responding to a suicide call, had an automobile accident with a bicyclist crossing the road. When police officers perform discretionary duties in good faith while acting within the scope of their authority, the law shields the officers and their government employers from civil suit,¹ The court of appeals held that a fact issue on the officer’s good faith precluded summary judgment.² We disagree and conclude that, as a matter of law, the officer was (1) performing a discretionary duty while acting within the scope of his authority in responding to the emergency call and (2) acting in good faith, given that a reasonably prudent officer in the same or similar circumstances could, have believed the actions were justified. We reverse and render judgment dismissing the case.

I. Background

On the evening of October 8, 2019, Officers Hewitt and Curtis were patrolling their assigned beat for the Houston Police Department. While they were on "call-out status" for an approved meal break at the police station, the City’s 911 line received a call around 8:50 p.m. "regarding a suicide in progress" nearby. Patrol officers do not receive 911 calls directly, and Hewitt averred that he was not privy to this one.

The 911 dispatcher classified the call as priority two,³ which is considered an emergency involving "in-progress property crimes and/or a potential threat to human welfare"—usually, a "threat to life." Priority two calls assume that if the crime or threat is not in progress, the event recently occurred or response to the scene is urgent. After receiving a priority two call, the dispatcher has five minutes to dispatch it to an officer, and the officer then has five minutes to respond.⁴ But unless the call is priority one, the dispatcher will bypass those officers who are on call-out status. Here, at 8:56 p.m., the dispatcher placed the priority two call on hold.

When the officers returned to their cruiser around 9:05 p.m., they received the dispatch call slip on their cruiser’s mobile data terminal.⁵ The call slip stated "suicide/jst occ/no wpn" with the following message: "Remarks Yes, I am trying to kill myself or harm someone else[.] No— there are not weapons involved[J PT is not on her medication … and is out of control."⁶ According to Hewitt, the dispatcher also alerted them that (1) there "was a suicide in progress with a female patient that was irate, destroying property, and had a knife"; and (2) "the call had already been holding for 10 minutes," so their response as the primary responding unit "was very urgent." The Department’s standard response to a priority two call is without emergency lights or sirens, but the officer may "get on the radio and ask … to use lights and sirens based on the[ ] circumstances" if they clearly warrant it. To avoid agitating the patient and consistent with his general approach for responding to priority two suicide calls, Hewitt did not turn on his cruiser’s emergency equipment.⁷

Although roadside lighting was dark, traffic was fairly light with clear weather and dry roads. Exiting the station, Hewitt turned right, stopped at a red light for thirty seconds, and then proceeded southbound on North Wayside. North Wayside has two southbound lanes, a center median with some trees separating the northbound and southbound lanes, and a speed limit of 40 miles per hour. Given the call’s nature and how long it had been holding, Hewitt accelerated to 62 miles per hour while traveling in the left lane next to the median as he approached Ritz Street. Seconds before reaching the intersection, Hewitt turned on his body camera.

At the same time, Dwayne Foreman was bicycling on Ritz with no reflectors or lights. Ritz intersects North Wayside from the east, and North Wayside has an opening in the median at the intersection with a turn lane but no stop sign. A person coming from Ritz across North Wayside’s northbound lanes and through the median’s opening would be required to yield the right-of-way to southbound traffic. As Hewitt approached, Foreman was traversing the median’s opening from the east on Hewitt’s left side. Curtis said "watch this guy" three times, but the cruiser’s A-pillar⁸ and trees in the median prevented Hewitt from seeing Foreman until it was too late. Foreman was just beginning to turn southbound on North Wayside when he was hit by the cruiser’s front left side, tragically ending his life.

After the accident, Officer Sartor with the Department’s vehicular crimes division investigated the crash. Sartor concluded that a reasonably prudent officer could have believed that the need to reach the scene of the suicide outweighed the risk of harm to others from Hewitt’s driving and that Hewitt’s speed was not excessive. In Sartor’s experience, the norm for police officers responding to those kinds of calls is roughly around 15 to 20 miles per hour over the speed limit. Although he acknowledged that had Hewitt requested and used lights and sirens, the accident possibly could have been avoided, Sartor also concluded that even if Hewitt had been traveling the speed limit, the cruiser still would have struck Foreman.

Foreman’s heirs and estate (collectively, the Foremans⁹) sued the City for wrongful death, alleging that the City’s employee negligently and proximately caused Foreman’s death while operating a motor vehicle, such that the employee would be personally liable. The City moved for traditional summary judgment, asserting that its immunity from suit was not waived under the Tort Claims Act because Hewitt was entitled to official immunity.¹⁰ The City’s evidence consisted of Hewitt’s affidavit and excerpts from Sartor’s deposition transcript. In response, the Foremans presented Sartor’s full deposition transcript, an expert declaration from Todd White (a retired former sergeant with the Department), and the message log report recovered from the cruiser’s mobile data terminal.¹¹ The trial court denied the motion, and the City appealed.

On interlocutory appeal,¹² a divided court of appeals affirmed. The majority held that the City did not conclusively establish Hewitt’s good faith—a necessary element for official immunity—through the required need-risk factors.¹³ In considering those factors, the majority noted that Hewitt (1) "never explicitly nor implicitly addressed why" he did not temporarily activate his emergency equipment and deactivate it before arriving at the destination and (2) "never addressed that he assessed the risk of collision … in light of the facts" that he was traveling in the dark without emergency equipment and with impediments to sight.¹⁴ Justice Wise dissented, concluding that the City did not need to expressly identify all possible alternatives, Hewitt’s explanation that emergency equipment could agitate the patient was sufficient, and Hewitt’s affidavit considered the factual circumstances affecting the risk.¹⁵ In Justice Wise’s view, the majority’s insistence that Hewitt should have addressed the alternative of temporarily using emergency equipment "is the type of hindsight that official immunity is designed to prevent."¹⁶

The City filed a petition for review, which we granted to clarify the scope of official immunity.

II. Discussion

[1] We begin with a broad overview of the applicable law and standard of review. A city performing governmental functions may not be sued for its employees’ conduct unless a plaintiff demonstrates the Legislature waived the city’s governmental im- munity.¹⁷ To do so, the Foremans rely on Section 101.021(1) of the Tort Claims Act. Among other things, this provision makes a city liable for a death arising from the operation of a motor vehicle and proximately caused by an employee’s negligence if the "employee would be personally liable" under Texas law.¹⁸ Thus, if a legal doctrine protects the employee from personal liability, Section 101.021(1) does not waive immunity.

[2, 3] One such doctrine is official immunity, a common-law affirmative defense.¹⁹ Official immunity shields government employees from liability in civil lawsuits that, with the benefit of hindsight, would second-guess their performance of discretionary duties and force them to defend decisions that were reasonable when made.²⁰ If these lawsuits distracted officials with litigation burdens and deterred their "willingness to execute [their] office with the decisiveness and the judgment required by the public good," the public would suffer.²¹ And "some of the most capable candidates would be deterred from entering public service if heavy burdens on their private resources from monetary liability were a likely prospect for errors in judgment."²²

[4] Given the utmost need for effective police officers of good character, the doctrine is perhaps most vital in police work.²³ In protecting the public, "officers must be free to make split-second judgments … based on their experience and training, without fear of personal liability" for every mistake.²⁴ Otherwise, "the constant threat of suit could ‘dampen the ardor of all but the most resolute, or the most irresponsible.’ "²⁵ Especially in volatile and changing circumstances, a high risk of personal liability could cause...