The City of Houston will not be liable for a Houston police officer’s fatal crash with a
bicyclist because the officer was performing a discretionary duty while acting within the
scope of his authority in good faith while responding to a suicide emergency call, the
Texas Supreme Court decided Friday.
The case, City of Houston v. Sauls, was one of three suits stemming from police car
crashes before the court this term. Court observers said it was a noteworthy
development and might indicate the court’s interest in clarifying official immunity under
the Texas Tort Claims Act.
The other cases, involving the cities of Houston and Austin, are delayed due to
arguments being postponed and apparently will not be decided this term.
In Sauls, Justice John Devine laid out the facts in his opinion for a unanimous court.
Officers Hewitt and Curtis were responding around 9 p.m. on Oct. 8, 2019, to a 911 call
regarding a suicide in progress, a call that had been delayed for 10 minutes. Receiving
information from the dispatcher that the woman had a knife, the officers sped without
emergency lights and sirens along North Wayside, a four-lane road divided by a median
with some trees.
To avoid agitating the patient – said to be irate and destroying property — and consistent
with his general approach for responding to priority two suicide calls, Hewitt said he did
not turn on his cruiser’s emergency lights and sirens. He was driving 62 mph in a 40
mph zone.
Dwayne Foreman was bicycling on a cross street with no reflectors or lights. Officer
Curtis warned Hewitt three times to watch the bicyclist, but Hewitt said the cruiser’s
design and trees in the median prevented him from seeing Foreman until it was too late.
Foreman’s mother, Catrennia Foreman Sauls, and the next friend of Foreman’s minor
child sued the city for wrongful death. The trial court denied the city’s summary judgment
motion that asserted its immunity from suit.
The Fourteenth Court of Appeals held in a 2-1 opinion that a fact issue on the officer’s good faith
precluded summary judgment. The majority said that the officer did not explain why he
didn’t activate his emergency equipment and deactivate it before arriving at the
destination. Dissenting Justice Ken Wise said the majority’s insistence “is the type of
hindsight that official immunity is designed to prevent.”
The Supreme Court heard arguments in January from Christy L. Martin of the city
attorney’s office and Margaret Bryant of Ware, Jackson, Lee, O’Neill, Smith & Barrow.
Sauls also is represented by Michael Patrick Doyle, Patrick M. Dennis and Jeffrey I.
Avery of Doyle.
The Foreman heirs argued that Hewitt negligently and proximately caused Foreman’s
death while operating a motor vehicle, such that he would be personally liable. Their
expert, a retired former sergeant with HPD, said Hewitt was performing a ministerial
duty because, based primarily on the contents of the 911, there was no emergency. The
expert said that the 911 caller reported that her sister had not taken her medication but
was not violent or suicidal, which, along with the fact that the call was placed on hold for 10
minutes, indicated it was not a priority emergency.
The Supreme Court said that Hewitt was not privy to the 911 call and, as a
nonsupervising officer, had no discretion to respond to the call as anything other than an
emergency priority two call.
“The Foreman’s expert opinion fails to raise a fact issue on whether Hewitt was
performing a discretionary duty. As a matter of law, Hewitt was performing a
discretionary duty in responding to the emergency call when the accident occurred,”
Devine said.
The court, in its 31-page opinion, turned to whether Hewitt was performing this
discretionary duty in good-faith. The court used a test from two earlier pursuit cases,
Wadewitz and Chambers, that considers how a reasonably prudent officer would have
acted in same or similar circumstances.
“Based on his experience, Hewitt explained that when those ‘calls drop, you never know
what you are walking into’ and although a ‘patient can be merely destructive of
property,’ ‘the individual could have already injured themselves.’ Accordingly, his opinion
was that speeding at 55 to 60 miles per hour ‘was necessary and reasonable,’” said Devine.
Sauls argued that the accident might have been avoided had Hewitt used his lights
without sirens. That is not what good faith requires, the court said.
“If the test is to mean anything, it will protect officers objectively acting in good faith,
even if they could have made other reasonable decisions, may have acted negligently,
or did not consider and assess all possible subsidiary alternatives. Good faith does not
require that the officer made the best decision or eliminated all risk, especially when the
officer has acted in the heat of an emergency response and decided to adhere to the
department’s standard approach,” Devine said.
The case number is 22-1074.