HOUSTON – A Texas appeals court has reversed the denial of summary judgment to the City of Houston and, on jurisdictional grounds, instead dismissed a case brought by plaintiffs whose father was struck and killed by a Houston police officer while crossing the street, in the vicinity of a nearby police action.
On Aug. 29, Fourteenth Court of Appeals justices Ken Wise, Charles A. Spain and Meagan Hassan reversed the 61st District Court of Harris County, Texas’s ruling, in Rachel Morris and Mia Sanders’ case versus the City of Houston.
Hassan wrote the Court’s opinion in this case.
“At approximately 9 p.m. on Aug. 14, 2021, Houston Police Officers Kpotie and Young were working with the Houston Police Department crime suppression team on a prostitution operation targeting an area in southwest Houston. As part of the operation, an undercover officer was supposed ‘to engage the services of a prostitution suspect and take them to a pre-arranged location in an unmarked vehicle.’ Officers Kpotie and Young sat in one of the marked police vehicles involved in the operation. Both officers wore their police uniform and waited for a surveilling unit to notify the marked units that there was ‘a good case.’ When Officers Kpotie and Young received the notification, Officer Kpotie drove toward a pre-arranged location at which marked units were supposed to arrest the suspect. As Officer Kpotie was following the undercover unit, he was driving his marked unit above the speed limit, but did not activate the lights or siren,” Hassan said.
“At a traffic light, he made a left turn onto Bissonnet Street. As he continued westbound following ‘the direction of travel being called out by the surveilling officer,’ Officer Young saw ‘a shadow suddenly appear in front of the passenger side of our vehicle.’ She told Officer Kpotie ‘to watch out.’ Officer Kpotie did not see a pedestrian, who was later identified as 69-year-old Steve Sanders, until Officer Young alerted him that Sanders was running across Bissonnet Street. Sanders was dressed in black and ran across the street outside of a crosswalk. Officer Kpotie steered the police car to the left when he saw Sanders, but his attempt to avoid hitting Sanders failed. He hit Sanders with the right front of the car and Sanders landed on the pavement. Sanders died as a result of the collision.”
Rachel Morris and Mia Sanders, the decedent’s daughters, sued the City in August 2022 for negligence and wrongful death, under the Texas Tort Claims Act.
In September 2022, the City filed an answer and special exceptions, citing, among other things, governmental immunity from suit and liability and official immunity as an affirmative defense to all of appellees’ claims.
“On June 16, 2023, the City filed a traditional and no-evidence motion for final summary judgment on immunity, arguing the trial court lacked jurisdiction over appellees’ claims because the City’s immunity was not waived. In that regard, the City argued that (1) Officer Kpotie did not breach a duty that proximately caused the accident; (2) Sanders was the proximate cause of the accident; (3) ‘Officer Kpotie would not be personally liable under the common law based upon the sudden emergency inferential rebuttal;’ (4) it was ‘shielded by the official immunity of its employee’ Officer Kpotie; and (5) ‘the TTCA’s Emergency Exception preserves Houston’s immunity.’ As evidence in support of its motion, the City attached affidavits from Officers Kpotie and Young,” Hassan said.
“Appellees filed their summary judgment response on July 3, 2023. In the portion titled response to no-evidence motion for summary judgment, appellees argued regarding breach of duty and proximate cause that ‘they have met their burden to establish more than a scintilla of evidence that Officer Kpotie’s operation of his police cruiser 20 m.p.h. above the posted speed limit in low light conditions constitute a breach of the duties imposed on every Texas driver in the prudent operation of a motor vehicle on Texas roadways and that this breach of duties was a proximate cause of Mr. Sanders’ death.’ Regarding sole proximate cause, appellees argued they ‘have presented more than a scintilla of evidence that Officer Kpotie’s acts and omissions of driving 20 m.p.h. above the posted speed were a proximate cause of the incident.’ With respect to sudden emergency, appellees argued that Officer Kpotie’s ‘negligent operation of his vehicle negates the applicability of the ‘sudden emergency’ defense.”
On July 19, 2023, the trial court signed an order denying the City’s “motion for no-evidence summary judgment and motion for traditional summary judgment.” The City filed an objection to the trial court’s failure to rule on the City’s evidentiary objections, but the trial court did not make a ruling on the objection. The City filed a timely notice of interlocutory appeal.
In bringing the case forward to the Fourteenth Court of Appeals, the City maintains that the “the trial court erred in denying its summary judgment motion because it is shielded by Officer Kpotie’s official immunity and thereby retained its governmental immunity.”
In its analysis of whether Kpotie was entitled to governmental immunity, the appellate court found that Officer Kpotie and the City proved that he did in fact act in good faith, during the discharging of his official police duties in this circumstance.
“Both officers explained in their respective affidavits that (1) Officer Kpotie was driving ‘as safely as possible, by looking around, observing traffic conditions and motorists’; (2) Officer Kpotie was not distracted by his phone, the police radio, or any other device; (3) the roads were dry, the weather was clear, and the ‘traffic was medium’; (4) other motorists around him ‘were going about the same speed as [he] was’; and (5) Officers Kpotie and Young ‘were stuck in the middle of a bunch of cars that were going roughly the same speed, which prohibited [them] from catching up with the suspect vehicle,’ causing the officers to believe that ‘Officer Kpotie’s speed [was] generally safe and appropriate for the situation and the safety of other motorist[s] and others in the area,” Hassan stated.
“The officers also discussed why it was reasonable for Kpotie to not activate his marked unit’s lights and siren, namely (1) to not ‘tip off other suspects’ and ‘blow the cover of other undercover units’; (2) there is a risk of causing an accident every time emergency equipment is activated; (3) the traffic was unusually busy that evening; (4) there were no exigent circumstances that would have justified the activation of emergency equipment; and (5) for the protection of the undercover officer while attempting to reach the location to arrest the suspect. Based on the officers’ affidavits, we conclude the City met its summary judgment burden to make a prima facie showing of Officer Kpotie’s good faith.”
Furthermore, the appeals court added that because it determined that the City met its initial burden to prove Officer Kpotie’s good faith, the burden then shifted to the appellees to present controverting evidence.
“Appellees were required to offer evidence that no reasonable police officer in Officer Kpotie’s position could have believed that the facts were such that they justified his actions. Appellees did not present any controverting evidence. Therefore, the City conclusively proved that Officer Kpotie acted in good faith. Based on the evidence presented, we conclude the City established as a matter of law that Officer Kpotie would be entitled to official immunity for his conduct at the time of the accident. Because Section 101.021(1) of the TTCA waives immunity only if the governmental employee would be personally liable under Texas law, the City retained its governmental immunity from suit and has established that it is entitled to summary judgment. Accordingly, we sustain the City’s issue,” Hassan said.
“Having sustained the City’s issue, we reverse the trial court’s order denying the City’s motion for summary judgment and render judgment dismissing appellees’ claims against the City for want of subject matter jurisdiction.”
Fourteenth Court of Appeals for the State of Texas case 14-23-00570-CV
61st District Court, Harris County, Texas case 2022-50930
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com