Opinion
No. 05-03-00644-CV.
Opinion Filed March 22, 2004.
On Appeal from the 193rd District Court, Dallas County, Texas, Trial Court Cause No. 01-11170-L.
Affirm.
Before Justices WHITTINGTON, JAMES, and O'NEILL.
MEMORANDUM OPINION
This is an official immunity case. Appellants Jose Luis Piedra et ux appeal a summary judgment granted in favor of appellees the City of Dallas and Reginald Jackson. In two issues, appellants contend the trial court erred in (1) granting appellees' motion for summary judgment and (2) failing to exclude appellees' expert's affidavit. For the following reasons, we affirm the trial court's judgment.
At almost 1:00 a.m. on December 25, 1999, appellee Officer Reginald Jackson responded to a loud music complaint at appellant Jose Luis Piedra's residence. When Jackson arrived at the residence, he heard music coming from the backyard. Jackson approached the backyard, identified himself as a police officer, and told the people there to turn down the music. After someone lowered the music, Jackson turned to leave. As he did so, Jackson heard a noise that sounded like someone "calling or siccing" a dog. Jackson then saw two dogs running toward him. Jackson feared the dogs were going to attack him and called to the people in the backyard to get their dogs. No one responded and Jackson drew his gun, pointed it at the dogs and fired. However, Jackson missed the dogs and accidently shot Piedra in the shoulder. Initially, Jackson told investigators the bullet must have ricocheted off of another surface. However, he claimed he later realized he had tripped as he fired.
Appellants sued Jackson and the City of Dallas for injuries Piedra sustained as a result of the gunshot wound. Jackson and the City filed a motion for summary judgment asserting they were entitled to judgment as a matter of law because Jackson was entitled to official immunity and the City was thus entitled to sovereign immunity. The trial court granted the motion. In his first point of error, appellants assert the trial court erred in granting the motion because appellees did not conclusively establish Jackson's official immunity defense.
The standards for reviewing summary judgment are well established. Nixon v. Mr. Prop. Mgmt Co., 690 S.W.2d 546, 548-49 (Tex. 1985). For a defendant to prevail on summary judgment, he must show there is no genuine issue of material fact concerning one or more essential elements of the plaintiff's cause of action or establish each element of an affirmative defense as a matter of law. See Elliot-Williams Co., Inc. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990).
Official immunity is an affirmative defense. Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994). A government employee has official immunity for discretionary acts performed within the scope of his authority if taken in good faith. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994).
In this appeal, appellants do not dispute that Jackson was performing a discretionary duty and was acting within the scope of his authority at the time of the injury. Appellants complain only that appellees did not conclusively establish that Jackson was acting in good faith. Specifically, appellants complain that appellees did not present evidence that Jackson considered the particularized need and risk factors that are required by the Supreme Court's opinion in Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997) before he discharged his weapon.
To establish good faith, an officer must show that a reasonably prudent officer, under the same or similar circumstances, could have believed that his conduct was justified based upon the information he possessed when the conduct occurred. See Telthorster v. Tennell, 92 S.W.3d 457, 465 (Tex. 2002). In a pursuit or emergency response case, the test for good faith is whether considering all the circumstances, a reasonably prudent officer could have believed that the need to immediately apprehend a suspect or respond to an emergency outweighed a clear risk of harm to the public in continuing the pursuit or responding to the emergency. See University of Houston v. Clark, 38 S.W.3d 578, 582 (Tex. 2000); Wadewitz, 951 S.W.2d at 467. The "need" aspect of the test refers to the urgency of the circumstances considering such factors as the seriousness of the crime or accident to which the officer responds, whether the officer's immediate presence is necessary to prevent injury or loss of life or to apprehend a suspect, and what alternative courses of action, if any, are available to achieve a comparable result. Wadewitz, 951 S.W.2d at 467. The "risk" aspect of the test refers to countervailing public safety concerns considering the nature and severity of harm that the officer's actions could cause, the likelihood that any harm would occur, and whether any risks of harm would be clear to a reasonably prudent officer. Id. In Wadewitz, the Texas Supreme Court held that where the need/risk test applies, the defendant police officer must show he specifically addressed the need for and risk of his intervention. See Wadewitz, 951 S.W.2d at 582.
Later, in Telthorster v. Tennell, the Supreme Court considered whether a defendant police officer must address the particularized Wadewitz need/risk factors to obtain summary judgment in an arrest case, in which the injury did not result from a hot pursuit or emergency response. See Telthorster, 92 S.W.3d at 457. The court concluded the Wadewitz need/risk factors did not apply because the policy considerations underlying the need/risk analysis were not implicated in such a case. Telthorster, 92 S.W.3d at 462-64. For example, the specific risks the test was designed to address, i.e., "the inherent risks that high-speed driving poses to those utilizing public streets and highways" did not arise in an arrest case. Telthorster, 92 S.W.3d at 463-64. The court further declined to apply the test because "a high risk of liability in [an arrest case] would likely compel arresting officers to act hesitantly when immediate action is required, subjecting themselves and the public to unnecessary `risks, and seriously hamper[ing] their efforts to apprehend dangerous criminal suspects.'" Telthorster, 92 S.W.3d at 464 (citing United States v. Merrit, 695 F.2d 1263, 1274 (10th Cir. 1982)).
Similar policy considerations lead us to conclude the particularized need/risk test does not apply in this case, which involves a police officer's decision to use force to protect himself from an immediate threat. The "need" in such cases is evident, i.e., the officer's need to defend himself. Requiring an officer to make a particularized risk assessment when an immediate response is necessary would unjustifiably increase the danger to police officers. Cf. Wadewitz, 92 S.W.3d at 464 (explaining how requiring an officer to consider need/risk factors in arrest case can increase danger to officers and public). Moreover, it is clear that application of the need/risk analysis presupposes an officer's ability to first consciously assess the needs and risks at issue before choosing whether or not to intervene. However, an officer faced with an immediate threat is not making a discretionary decision regarding whether or not to intervene — rather, he is responding to outside forces. Therefore, we conclude the particularized Wadewitz need/risk factors do not apply to this case. Thus, appellees' failure to expressly consider those factors was not fatal to their motion for summary judgment. Because appellants do not complain that appellees failed to meet their burden to conclusively establish good faith under the general test, we need not decide that issue. We overrule appellants' first point of error.
In their second point of error, appellants contend the trial court erred in overruling their objection to appellees' expert's affidavit. Appellees' motion for summary judgment was supported by the affidavit of Jeffrey Cotner. In his affidavit, Cotner, a teacher at the Dallas Police Academy, stated he reviewed various statements and reports related to the investigation of the shooting and, after doing so, concluded that Jackson's actions were reasonable and in compliance with the Dallas Police Department's General Orders. Appellants objected to Cotner's affidavit because Cotner did not review all available evidence and did not himself interview Jackson. Appellants urged the trial court to exclude the affidavit under rule 403 because Cotner did not have a sufficient factual basis for his opinion. On appeal, appellants assert the trial court should have excluded the affidavit under rule 702 because (1) Cotner was not qualified and (2) the expert testimony did not assist the trier of fact.
To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if the specific grounds were not apparent from the context. See 33.1; Birnbaum v. Law Offices of G. David Westfall, P.C., 120 S.W.3d 470, 476 (Tex. App.-Dallas 2003, pet. filed); Arthur's Garage, Inc. v. Racal-Chubb Sec. Sys., 997 S.W.2d 803, 816 (Tex. App.-Dallas 1999, no pet). An objection in the trial court that does not comport with the complaint on appeal does not preserve error. G.T. Mgmt., Inc. v. Gonzalez, 106 S.W.3d 880, 885 (Tex. App.-Dallas 2003, no pet.). Here, appellants did not object to Cotner's affidavit under rule 702. Therefore, nothing is presented to review. We overrule appellants' second point of error.
We affirm the trial court's judgment.