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Reversed and Rendered and Majority and Dissenting Opinions filed March 27,2007.


In The


Fourteenth Court of Appeals



NO. 14-05-00407-CV







DWAINIA ALFORD, Individually, and as Next Friend of AARON ALFORD, and RONALD ALFORD, Appellees



On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 2002-53991



D I S S E N T I N G    O P I N I O N

Because the trial court did not find that Green=s failure to wear corrective lenses caused the accident, the majority dismisses as irrelevant Chief Gardner=s opinion that no reasonable firefighter would drive a fire truck without wearing required corrective lenses.  Because the majority fails to review this testimony under the appropriate standard of review, I respectfully dissent. 


The majority correctly states the context in which this issue arose: Green moved for judgment as a matter of law on the theory that he is protected by official immunity.  But the majority makes no mention of the applicable standard of review, which requires us to review all of the evidence, indulge every reasonable inference that would support the verdict, and to disregard contrary evidence except in certain well-defined circumstances not present here. City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005).

This standard is not altered when the issue is one of official immunity: in order to establish good faith as a matter of law when the facts are in dispute, an officer must base his need-risk assessment on the facts in the light most favorable to the nonmovant, because we assume those facts are true.  Harris County v. Smyly, 130 S.W.3d 330, 334 (Tex. App.CHouston [14th Dist.] 2004, no pet.).  The majority, however, has not only ignored evidence that supports the verdict, but has added the additional qualification of causation in determining whether favorable evidence may be considered.  This qualification is not found in the case law establishing the standard of review applicable to motions for judgment as a matter of law,[1] nor is it found in cases specifically discussing determinations of official immunity.[2]  In adding such a requirement, the majority appears to merge the threshold determination of official immunity from suit with findings required to support liability.

Moreover, the majority rejects the evidence at issue because the trial court named intervening traffic as the reason that Green could not see the Alfords= truck.[3]  But the trial court heard evidence that the accident could have been caused by several factors, including Green=s poor eyesight.  This raises an additional concern with the majority=s formulation of the standard of review: if a reviewing court can consider evidence that an official did not act in good faith only if the harm was caused by the same facts that defeat a finding of good faith, then a court faced with multiple theories of causation must make or obtain a finding on causation before it can determine whether the official is immune from suit.  This is contrary to precedent.  See City of Lancaster v. Chambers, 883 S.W.2d 650, 657 (Tex. 1997) (stating that, after the defendant makes a prima facie case for official immunity, the plaintiff may defeat the affirmative defense by showing that A>no reasonable person in the defendant=s position could have thought the facts were such that they justified defendant=s acts.=@) cf. id at 653 (in determining whether an official was performing a discretionary function, the Court did not focus on the wrongful act, but instead stated that Athe court=s focus should be on whether the officer is performing a discretionary function, not on whether the officer has discretion to do an allegedly wrongful act while discharging that function.@).

If the evidence refuting good faith pertains to the official=s performance of a discretionary duty within the scope of his authority, the reviewing court is not required to disregard that evidence simply because the performance of that duty included additional misconduct that actually caused the harm alleged.  See id. (stating that government officials Aare entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority.@).  Instead, courts simply measure good faith against a standard of objective legal reasonableness.  Id. at 656.  Moreover, an officer seeking to overturn a trial court=s finding that he failed to act in good faith must address all evidence in the record that is material to the good faith determination without regard to whether the evidence is also material to causation.  See City of Keller, 168 S.W.3d at 825B26; Smyly, 130 S.W.3d at 334.[4] 

Good faith depends on how a reasonably prudent officer could have assessed both the need to which the officer responds and the risks of the officer=s course of action, based on the officer=s perception of the facts at the time of the event.  Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997) (citing Chambers, 883 S.W.2d at 656).  In concluding that Green did not act in good faith and was therefore not entitled to official immunity, the trial court could have considered evidence of the facts perceived by Green, including the following facts pertaining to the risk involved in his conduct:

$                   Green has suffered from a progressive eye disease since at least 1995;

$                   He failed a vision test conducted by the Department of Public Safety as early as 1997 or 1998;

$                   Approximately ten months before the collision, Green reported to his eye specialist that he experienced decreased distance vision and blurring, but did not want a special corrective lens prescription because of his work as a firefighter;

$                   Within approximately three months after the accident, his vision was so blurred he had difficulty watching television;

$                   A restriction on Green=s driver=s license requires him to wear corrective lenses;

$                   He never reported any problems with his vision to the Pasadena Volunteer Fire Department;

$                   Photographs taken at the scene of the accident show Green without glasses;

$                   The firefighter who was sitting next to Green at the time of the accident testified that Green was not wearing glasses;

$                   At the time of the accident, Green was driving the fire truck in violation of the restriction on his driver=s license;[5]

$                   Other firefighters were available to drive the fire truck at that time;

$                   The accident occurred during evening rush hour on the Friday beginning Labor Day weekend;

$                   Green knew there was heavy traffic at this intersection at the time of the collision;

$                   When he drove the fire truck into the intersection, the traffic light facing him was red;

$                   Green did not slow down before entering the intersection, and was traveling too fast to stop for any traffic proceeding west in the northernmost lane of Fairmont Parkway;

$                   He activated the fire engine=s lights, but did not activate its sirens;

$                   He could not see the northernmost lane of traffic westbound on Fairmont Parkway before the collision; and

$                   He was aware that driving into this lane without determining whether any vehicles traveling in that lane had yielded to the fire truck posed a high degree of risk of serious injury.

The trial court also could have considered evidence that Green was aware of the following facts concerning the need for him to act as he did:

$                   At the time of the accident, Green was aware that he was responding to an automatic fire alarm at a building approximately one-half mile from the fire station;

$                   He sought no other information about the reason for the alarm;

$                   He was aware that the overwhelming majority of automatic fire alarms are false alarms or do not require the immediate presence of a firefighter; and

$                   By failing to stop or slow down as necessary at the intersection, Green reduced his response time by 15B30 seconds.

Finally, the trial court could have considered expert evidence of the objective standard of reasonableness.  Jerry Gardner, Chief of the City of Pasadena Fire Department, categorically agreed that, if other drivers were available, no reasonable fire truck operator could believe that it would be reasonable to respond to a call by driving a fire truck without wearing corrective lenses required by a restriction on the firefighter=s driver=s license.  Although Gardner ultimately opined that Green acted in good faith, he admitted that he reached that opinion by assuming the truth of disputed factsCincluding the assumption that, if required to do so, Green was wearing corrective lenses at the time of the accident.

In sum, the evidence favorable to the verdict demonstrates that at the time of the accident, Green had a restricted driver=s license, but was not wearing the required corrective lenses at the time he collided with the Alfords= vehicle.  Thus, when considered under the appropriate standard of review and in light of the objective standard of reasonableness, the evidence is sufficient to show that Green was not operating the fire truck in good faith at the time of the accident.

I would therefore affirm the trial court=s conclusion that Green is not entitled to official immunity from suit.  Because Gardner is an expert whose testimony rebuts Green=s prima facie showing of good faith, I would not reach the question addressed by the majority concerning the type of testimony required to rebut a prima facie showing of good faith.  I would instead address Green=s remaining challenges to (1) the legal and factual sufficiency of the evidence supporting the trial court=s finding that he acted recklessly, and (2) the trial court=s refusal to apply  a statutory damages cap.






/s/        Eva M. Guzman






Judgment rendered and Majority and Dissenting Opinions filed March 27, 2007.

Panel consists of Justices Anderson, Hudson, and Guzman. (Hudson, J., majority).

[1]  See generally City of Keller, supra.

[2]  See generally Wadewitz v. Montgomery, 951 S.W.2d 464 (Tex. 1997); City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex. 1997); cf. Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon 2005) (waiving governmental immunity for property damage, personal injury, and death Aproximately caused@ by employees, and personal injury and death Acaused@ by tangible personal or real property).

[3]  This finding is not inconsistent with an inference that Green=s visual impairment would have prevented him from clearly seeing the Alfords= vehicle in the absence of intervening traffic.

[4]  Under the appropriate standard of review, we must accept evidence supporting the verdict if a reasonable factfinder could, regardless of whether an appellant denies that such evidence is true.  I therefore respectfully disagree with the majority=s discussion and conclusions in footnote 5.

[5]  Operating a motor vehicle without corrective lenses in violation of a driver=s license restriction is a misdemeanor criminal offense.  See Tex. Transp. Code Ann. ' 521.221 (Vernon 1999).