Employee not entitled to official immunity as asserted in summary judgement

University of the Incarnate Word v. Valerie Redus, et al., No.04-21-00115-CV, (Tex.App.—San Antonio, July 29, 2022)

This appeal stems from a deadly force claim allegedly committed by a University of the Incarnate Word (“UIW”) police officer. UIW appealed a denial of its motion for summary judgment. The Fourth Court of Appeals affirmed the denial.

Student Cameron Redus (“Redus”) was stopped by UIW Cpl. Christopher Carter (“Carter”) for suspicion of driving while intoxicated. A physical altercation ensued after Carter attempted to arrest Redus, which ultimately resulted in Carter shooting Redus five times, killing him. Redus’ parents brought forth a wrongful death and survival action against UIW and Carter, alleging negligence and gross negligence. UIW filed a traditional motion for summary judgment based on Carter’s qualified immunity and, derivatively, UIW’s immunity from suit. The trial court denied the motion and UIW filed this appeal.

To establish official immunity, the state equivalent of what is commonly known as “qualified immunity,” the defendant must conclusively establish that the employee was 1) performing a discretionary duty, 2) within the scope of the employee’s authority, and 3) the performance of that duty was done in good faith. The only element in dispute was whether Carter was acting in good faith. The crux of the appellate court’s analysis rests upon a previous holding by this court (Saenz v. Gonzalez in 2002) that, where underlying facts are in dispute, the court cannot consider a defendant expert’s affidavit establishes good faith because the disputed fact issue precludes summary judgment. Here, UIW was relying on sworn testimony and affidavits which state that Redus was not only the aggressor, but that he had taken Carter’s baton and was using it to assault Carter. However, appellee’s testimony, affidavits, and even the audio during the incident called into question whether Redus was the initial aggressor or had even gained possession of Carter’s baton. Because the underlying fact of whether Redus was the aggressor underlay UIW’s argument that Carter was acting in good faith, the appellate court found that the evidence created a material fact issue precluding the grant of immunity at this stage. The appellate court also made an effort to note that UIW further failed to make any argument for official immunity based on the assumption that appellee’s version of the facts was taken as true. As such, the appellate court affirmed the trial court’s denial of UIW’s motion for summary judgment.

If you would like to read this opinion, click here. Panel consists of Chief Justice Martinez and Justices Alvarez and Rodriguez. Opinion by Justice Rodriguez.

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