The Texas Supreme Court is weighing whether the family of a bicyclist who was killed by a police officer responding to an emergency call can proceed with their lawsuit or if immunity bars the claim.
Houston has argued the lawsuit brought by the mother, Catrennia Foreman Sauls, and child of Dwayne Foreman, who was killed by an officer driving 62 mph in a 40-mph zone in 2019, has to be dismissed under the “emergency exception” to the Texas Tort Claims Act, which shields police from such suits if they’re responding to an emergency. But lower courts have declined to dismiss the case after finding there is a disagreement between the parties as to whether the officer was actually responding to an emergency.
That factual dispute, the courts have held, precludes summary judgment.
Foreman was riding his bicycle the night of Oct. 8, 2019, without a headlamp when he was struck by a marked police cruiser. The officer was on his way to respond to a priority two emergency call for a suicide in progress.
The officer’s emergency lights and sirens were not on, and he previously stopped at a stop light before encountering Foreman. The officer has said his view was obstructed.
The Sauls case is the first of three cases involving police crashes and the emergency exception to the TTCA that the high court is hearing this term. The city has argued it met its initial summary judgment burden under a needs-risk assessment the Texas Supreme Court has established for determining whether a police officer was acting in good faith. But the 14th Court of Appeals opinion made the assessment more burdensome than the high court requires, the city argues.
“How would a post hoc analysis of the needs and the risk ever be the way to decide whether somebody in the past acted in good faith?” Justice Jimmy Blacklock asked the city of Houston’s lawyer.
Christy Martin, of the city attorney’s office, said she agreed it may not be the way to decide.
“We don’t need to look back post hoc and nitpick what the officer did,” Martin said. “The court just wants to see that the officer gave some thought to the needs and the risks of their actions. Did they do an analysis at all? And if they did, great, that’s what the court needs to see.”
Blacklock said it was a “bizarre construct” to ask whether an officer in an emergency situation weighed needs and risks “in the way that we now as lawyers and judges sit around with hours and hours to think about it.”
Martin agreed and called it “Monday-morning quarterbacking” with the benefit of hindsight.
“So is the answer just there should be immunity always?” Justice Brett Busby interrupted.
Martin paused.
“Speaking as a governmental unit, yes,” Martin said with a laugh. But then she continued. “Not necessarily.”
The test for good faith dates back to the Texas Supreme Court’s 1997 decision in Wadewitz v. Montgomery, Martin said. In that instance, the trial court denied summary judgment and the appeals court found a Waco police officer did not act in good faith when he struck a car, injuring its occupants, while responding to an emergency call. The Supreme Court then affirmed the appeals court’s judgment.
The Wadewitz test elaborated on a standard previously decided in another case, City of Lancaster v. Chambers, in 1994, and is often referred to as the Chambers-Wadewitz need-risk assessment.
But maybe it needs to be replaced with the less rigorous standard set in Telthorster v. Tennell in 2002, Martin suggested. In that case, brought by a person who suffered injuries during an arrest, the justices found a Navasota police officer acted in good faith during the arrest.
The city has argued in court briefs that the less rigorous standard ought to apply in this case because the plaintiffs have challenged whether the call was an emergency.
Martin argued there’s a distinction between an emergency call versus an emergency situation.
“So is your position that … there’s really no need for official immunity anymore in an emergency situation?” Busby asked.
Not necessarily, Martin responded again.
“A court can assume without deciding under official immunity without going into the emergency exception,” she said.
Margaret Bryant, of Ware, Jackson, Lee, O’Neil, Smith & Barrow, argued for Sauls that the risk analysis is needed in this case because the officer created an inherent danger to bystanders with his speeding.
“The city seems to take the position that it’s unrefuted that it was an emergency call because it was a priority two call … but that testimony is hardly without contradiction or inconsistencies,” Bryant said.
The dispatcher and officer were not following the city’s required timeline for a priority two call, Bryant pointed out. She also pointed to a police standards expert who identified alternative actions the officer could have taken.
“You’re saying that courts should look and say whether or not it truly fits the bill of an emergency and then, also, whether it was treated as an emergency?” Justice Jane Bland asked. “Those are two things we should look at in addition to whether the dispatch characterized it as one?”
Yes, Bryant responded, “That goes to the purpose of the statute, too, which is to balance … protecting the public versus the need for prompt response.”
Blacklock asked whether the statute also intends to avoid “disincentivizing police officers from worrying about negligence liability during situations that are emergencies.” Officers wouldn’t know whether they’re protected by a “heightened liability rule” until after responding to the situation, he said.
“I don’t think it’s a heightened liability standard,” Bryant responded. “It’s whether or not there’s immunity.”
During rebuttal, Martin told the court that its 2022 ruling in City of San Antonio v. Maspero seems to instruct lower courts to “tread lightly.” In that case, the Texas Supreme Court ruled a family stuck by a drug trafficking suspect who fled police at nearly 100 mph couldn’t sue the city because the emergency exception applied. Two of the family’s children were killed in the crash.
“We need to make sure that officers who are dispatched to a code two are free to trust that they are protected for a rapid response to try to save lives,” Martin said.