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Click here for the full text of this decision FACTS:At 5:15 p.m. on Aug. 30, 2002, Christopher Green, a volunteer fireman for the Pasadena Volunteer Fire Department, received notice on his pager of an automatic fire alarm activation. He arrived at the fire station in less than five minutes. Green then drove a large fire truck out of the station accompanied by several other firemen. Green approached the intersection of Jana and Fairmont Parkway. Ronald Alford testified that he and his wife, Dwaina Alford, and their son, Aaron Alford, approached the same intersection. As Ronald began to slow his pickup truck in anticipation of stopping for a red light, the light turned green. Alford looked to his right and left, took his foot off the brake and entered the intersection at approximately 30 miles per hour. Alford claimed that he never saw or heard Green’s fire truck until the impact. Dwaina, like her husband, testified that she never heard a siren or horn before the impact. The collision injured all three members of the Alford family. In contrast, Green testified that he activated his emergency lights and siren even before he exited the fire station. Approaching the intersection, Green said that he began to periodically sound his horn as well. Green testified that he began crossing the intersection at no more than 10 miles per hour. Green stated that he was moving slowly enough to stop for a vehicle if he had seen a vehicle entering the intersection. However, Green said that his first sighting of the Alford’s pickup was simultaneous with the collision. According to Green, the Alfords’ pickup truck struck the right front corner of the fire truck, rolled over and careened into a utility pole supporting the traffic signal lights. Green said after the impact, his fire truck was sitting stationary in the intersection. Green remained in the intersection for a few seconds staring at the Alfords’ wrecked vehicle. Green then proceeded to drive across the intersection and park his fire truck on Jana. Green and the other firefighters on his truck then went to the Alfords’ vehicle and began administering medical care to the occupants. Riding shotgun in the cab with Green that day was Richard Lawhorn, another volunteer fireman, who largely backed up Green’s account. About nine witnesses testified. Most witnesses driving in other vehicles stated that they saw the fire truck’s emergency lights and heard its siren or horn. Two witnesses said they saw neither, but another witness said that he saw the truck’s flashing lights. After weighing all the evidence, the trial court found that: 1. Green entered the intersection of Jana and the westbound lanes of Fairmont Parkway on a red traffic light; 2. because of traffic in the southernmost and middle lanes of Fairmont Parkway, Green did not see the northernmost lane of Fairmont Parkway; 3. at the time of impact, the fire truck was traveling at 23 miles per hour; 4. the fire truck entered the intersection at a speed too fast to stop for westbound traffic that might be entering the intersection; and 5. at the time of the collision, Green was not using the fire truck’s siren or other audible warning signal. At the close of evidence, Green moved for judgment as a matter of law on the theory that the doctrine of official immunity protected him from liability. The trial court considered but rejected the defense. On appeal, Green argued that the trial court erred in refusing to render judgment in his favor based on the doctrine of official immunity. HOLDING:Reversed and rendered. Official immunity, the court stated, protects public officials from suit arising from performance of their discretionary duties in good faith within the scope of their authority. Although Green was not a paid city employee at the time of the accident, the court did not dispute that he was a public official, potentially protected by the defense of official immunity. Likewise, the court did not dispute that Green was within the scope of his authority and exercising discretionary duties when he proceeded through the intersection. The only contested question, the court stated, is whether Green exercised his duties in good faith to entitle himself to immunity. To determine whether Green acted in good faith, the court examined the record to see whether a reasonably prudent official, under the same or similar circumstances, “could have believed that his conduct was justified based on the information he possessed when the conduct occurred. The court dubbed this a “risk versus need” analysis. In the context of an emergency response, the court stated, the “need” aspect of the test refers to the urgency of the circumstances requiring official intervention. The “risk” aspect of the analysis refers to the countervailing public safety concerns. Under the facts presented here, the court found that Green presented sufficient evidence to establish the affirmative defense of official immunity. The Alfords, the court stated, contended that they offered evidence rebutting Green’s defense. The trial court agreed. The trial court also concluded that Green did not act in good faith because of evidence showing that: 1. Green suffered from a progressive eye disease that principally blurred the vision in his right eye; 2. in 1997 or 1998, Green failed a vision test administered by the Texas Department of Public Safety; 3. Green was required to wear corrective lenses while driving; and 4. Green was not wearing corrective lenses at the time of the collision. The trial court further found that Green was aware that the fire alarm was an automatic alarm and that most automatic alarms are later discovered to be false alarms. While these factual findings may be “damning to Green,” the court disputed the trial court’s findings and stated that they did not resolve the issue of good faith. After a defendant has offered evidence of good faith, the court stated that the defendant is officially immune as a matter of law unless the plaintiff offers some evidence that no reasonable person in the defendant’s position could have thought that the facts justified the defendant’s conduct. The fact that a governmental employee was negligent or even reckless, the court stated, will not defeat good faith. Conduct that is clearly reckless may be reasonable in a time of crisis. Accordingly, the court held that: Green made an adequate showing that he acted in good faith; the Alfords did not rebut Green’s showing of good faith so as to raise a fact issue in that regard; and Green was entitled to official immunity. OPINION:Hudson, J.; Hudson and Anderson, J.J. DISSENT:Guzman, J. “Because the trial court did not find that Green’s failure to wear corrective lenses caused the accident, the majority dismisses as irrelevant Chief J.D. 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.”

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