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Maria Christina GOMEZ, Appellant v. The CITY OF HOUSTON, Appellee
EN BANC MAJORITY OPINION
A motorist was involved in a traffic collision with one of several City of Houston police officers responding to the scene of a robbery in progress. The motorist sued the City, alleging negligence. The City responded by filing a plea to the jurisdiction, asserting immunity from suit. The trial court granted the plea and dismissed the motorist's suit. After a panel of this court decided this appeal, the en banc court voted to grant the City's Motion for En Banc Reconsideration, and the en banc court has reconsidered this appeal.
The motorist asserts various arguments as to why the trial court erred in granting the City's plea. We conclude that the City did not conclusively establish the good faith of the officer involved in the collision, and that a material fact issue exists as to whether that officer acted recklessly. Therefore, we reverse the trial court's judgment and remand the case to the trial court for further proceedings.
I. Factual and Procedural Background
Appellant Maria Christina Gomez was driving eastbound on Crosstimbers Road on a cold and rainy Christmas Eve morning. As she approached the intersection at Lockwood, the traffic light facing her turned green and she proceeded into the intersection. A City police car slid into the intersection and collided with Gomez's vehicle. According to Gomez, Bobby Joe Simmons, the officer who was driving the police car, was not using the police car's emergency lights or siren when his car collided with hers.
That morning Simmons was on patrol when he was dispatched to respond to a nearby armed robbery in progress. According to Simmons, an armed robbery is normally a Priority One call, but dispatch reduced this call to Priority Two due to the weather conditions. Simmons testified that as he responded to the robbery-in-progress call, he turned on his emergency lights but not his siren. Simmons explained that the Houston Police Department's policy for Priority Two calls normally requires a silent approach. Simmons further explained that an officer retains the discretion to use the emergency lights and siren on a Priority Two call when the officer deems it necessary and notifies the dispatcher. Simmons decided that he did not need to exceed the posted speed limit of 35 miles per hour to arrive safely and quickly at the robbery scene. As his patrol car approached the intersection, Simmons looked down to increase the volume of his police radio. When he looked up, he was startled to see that the Crosstimbers traffic light had turned yellow. He pressed his brakes, but he was unable to stop his police car on the wet street, and the car slid into the intersection, where it collided with Gomez's vehicle.
Houston police officer Isaac Jefferson investigated the collision and prepared the investigation report. Jefferson noted in his report, among other things, that Simmons was responding to a robbery call when the collision occurred. Jefferson also stated in his report that Simmons was driving south on Lockwood without his emergency lights or siren engaged when the signal light changed from green to yellow. Jefferson then stated that Simmons “applied his brakes but because the roads were wet he was unable to stop.” Finally, Jefferson determined that Simmons disregarded a stop-and-go signal and so was at fault in the collision.
During his deposition, Simmons testified that he received a letter of reprimand as a result of the collision. The reprimand letter notified him that he was at fault in the collision. Simmons also testified that he did not contest the fault determination because he already had admitted fault in the collision.
The City of Houston filed a “First Amended Plea to the Jurisdiction and Motion to Dismiss” (the “Jurisdictional Plea”), including as exhibits (1) a business-records affidavit containing Houston Police Department call slips associated with the robbery, (2) an affidavit of Simmons, (3) an affidavit of Jefferson, and (4) a document explaining Priority Two calls. Much of Jefferson's affidavit duplicates Simmons's affidavit. Like Simmons, Jefferson states in his affidavit that “Officer Simmons'[s] emergency lights and car headlights were on throughout this time.” Jefferson then opined that “based on all the facts stated above, another reasonably prudent law enforcement officer, including myself, under the same or similar circumstances could have believed that the need to quickly reach the incident scene outweighed any minimal risk of harm to others and that all of Officer Simmons's decisions and actions before the accident were justified and reasonable based on his perception of the facts at the time.” Finally, Jefferson concluded that “based on all the facts stated above, Simmons should not have known or believed that his driving to reach the armed robbery in progress and then to assist in pursuing the suspect posed a high degree of risk of serious injury to others and that there is no way Officer Simmons did not care about the results of any risk of injury to others.”
After Gomez filed suit against the City, the City filed the Jurisdictional Plea asserting that the trial court lacked jurisdiction over the claims because the City had not waived its governmental immunity. The City made two arguments in its Jurisdictional Plea. First, the City asserted that Simmons was protected by official immunity, which preserved the City's governmental immunity. Second, the City argued that it was immune because the emergency exception in the Texas Tort Claims Act (the “Act”) barred any possible waiver of its governmental immunity. The trial court granted the City's plea and dismissed Gomez's lawsuit. This appeal followed.
In December 2018, a panel of this court reversed the trial court's judgment and remanded the case to the trial court for further proceedings, issuing a memorandum opinion authored by Justice Busby, in which Chief Justice Frost and Justice Boyce joined. The City filed a Motion for Rehearing and a Motion for En Banc Reconsideration. Under Texas Rule of Appellate Procedure 49.3, this court must deny the Motion for Rehearing because Justices Boyce and Busby are no longer on this court. See Tex. R. App. P. 49.3 (stating that “A motion for rehearing may be granted by a majority of the justices who participated in the decision of the case. Otherwise, it must be denied.”). A majority of the en banc court voted to grant the Motion for En Banc Reconsideration, and the en banc court has reconsidered this appeal. Today, the en banc court withdraws the memorandum opinion and judgment of December 21, 2018, and issues this En Banc Majority Opinion and the en banc court's judgment. Justice Jewell has authored an En Banc Dissenting Opinion, in which Justices Wise and Spain join.
II. Issues and Analysis
A. Standard of Review
In filing the Jurisdictional Plea, the City challenged the trial court's subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Because subject-matter jurisdiction is a question of law, we conduct a de novo review of the trial court's granting of the plea. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In the Jurisdictional Plea, the City challenged the existence of jurisdictional facts; so, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. See id. If the evidence created a fact question as to the jurisdictional issue, then the trial court should have denied the Jurisdictional Plea. See id. at 227–28. But, if the relevant evidence was undisputed or failed to raise a fact question on the jurisdictional issue, then the trial court should have ruled on the Jurisdictional Plea as a matter of law. Id. at 228.
B. The City's Failure to Establish Official Immunity as a Matter of Law
The City, as a municipality and political subdivision of the State, cannot be vicariously liable for an employee's acts unless its governmental immunity has been waived. City of Pasadena v. Belle, 297 S.W.3d 525, 529 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Under the facts of this case, the only possible waiver of the City's immunity from suit and liability is found in section 101.021 of the Act, which provides in relevant part:
A governmental unit in the state is liable for ․ property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law․
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1) (West 2011).
The parties agree Gomez's claims arise from the use of a motor vehicle. They also agree that Simmons was acting within the scope of his employment when he responded to the dispatcher's call. One of the matters the parties dispute, which we address here, is whether Simmons “would be personally liable to the claimant[s] under Texas law.” A second dispute, which we address in section C, below, is whether an exception to the section 101.021 waiver applies.
The City contends the evidence conclusively establishes that Simmons retained his official immunity because he responded to the robbery call in good faith. According to the City, that means Simmons could not be personally liable to Gomez according to Texas law, and the City retains its governmental immunity. Gomez asserts on appeal that the City failed to establish good faith as a matter of law because the City's proof of good faith presumed that Simmons activated his car's emergency lights, even though there is a fact issue on this point, and the City should have based its proof of good faith on Simmons not having activated his car's emergency lights.
Because official immunity is an affirmative defense, the burden rests on the City to establish all elements of the defense. See Green v. Alford, 274 S.W.3d 5, 16 n.11 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (en banc); Belle, 297 S.W.3d at 530. Under the official-immunity defense, a government employee may be immune from a lawsuit that arises from the performance of the employee's discretionary duties in good faith, provided the employee was acting within the scope of the employee's authority. Belle, 297 S.W.3d at 530. As explained above, only good faith is in dispute.
In this context, a court must measure good faith against a standard of objective legal reasonableness, without regard to the police officer's subjective state of mind. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). To be entitled to summary judgment, the City must carry the burden to prove conclusively that a reasonably prudent police officer, under the same or similar circumstances, could have believed his actions were justified based on the information he possessed at the time. Telthorster v. Tennell, 92 S.W.3d 457, 465 (Tex. 2002). The City need not prove that it would have been unreasonable not to take these actions, or that all reasonably prudent officers would have taken the same actions. See id. Rather, the City must prove conclusively that a reasonably prudent officer, under the same or similar circumstances, might have reached the same decision. See id. That Simmons may have been negligent will not defeat good faith; this test of good faith does not inquire into “what a reasonable person would have done,” but into “what a reasonable officer could have believed.” Id. (internal quotations and citations omitted). The good-faith standard is analogous to an abuse-of-discretion standard that protects “ ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Texas Dept. of Public Safety v. Bonilla, 481 S.W.3d 640, 643 (Tex. 2015) (per curiam) (quoting City of San Antonio v. Ytuarte, 229 S.W.3d 318, 321 (Tex. 2007) (per curiam)).
If the City met its summary-judgment burden, then to have raised a fact issue, Gomez must have done more than show that a reasonably prudent officer could have reached a different decision. See id. Instead, Gomez must have offered evidence that no reasonable officer in Simmons's position could have believed that the facts were such that they justified Simmons's conduct. See id.
In this context, good faith depends on how a reasonably prudent officer could have assessed both the need to which the officer was responding 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, 951 S.W.2d at 467. The “need” aspect of the balancing test refers to the urgency of the circumstances requiring police intervention. Id. In the context of an emergency response, need is determined by factors such as: (1) the seriousness of the crime or accident to which the officer is responding; (2) whether the officer's immediate presence is necessary to prevent injury or loss of life or to apprehend a suspect; and (3) what alternative courses of action, if any, are available to achieve a comparable result. Id. The “risk” aspect refers to the countervailing public-safety concerns: (1) the nature and severity of the harm the officer's actions could cause (including injuries to bystanders as well as the possibility that an accident would prevent the officer from reaching the scene of the original emergency); (2) the likelihood that any harm would occur; and (3) whether any risk of harm would be clear to a reasonably prudent officer. Id.
To prevail, a governmental defendant's proof must sufficiently address these need/risk factors. Telthorster, 92 S.W.3d at 462. An expert giving testimony regarding good faith must discuss what a reasonable officer could have believed based on the officer's perception of the facts at the time of the event, and this discussion must be substantiated with reference to both the need and risk aspects of the balancing test. See Wadewitz, 951 S.W.2d at 466–67; Belle, 297 S.W.3d at 531. In addition, the facts of the case may require the expert to provide a continuing assessment of the need and risk factors because emergency responses and police pursuits may involve rapidly changing circumstances. Belle, 297 S.W.3d at 531. A reviewing court analyzing these factors first must determine whether the governmental unit met its initial burden to prove conclusively the police officer's good faith. Id. Only when it has been determined that the governmental unit met this burden does the court address whether the nonmovant's evidence raises a genuine issue of material fact on the issue of good faith. Id.
When faced with “an official traffic-control device,” a motorist is required to stop and “may proceed when the intersection can be safely entered without interference or collision with traffic using a different street or roadway.” Tex. Transp. Code Ann. § 545.151(a)(2) (West 2011). Police officers are authorized to violate traffic laws in certain circumstances, but they may do so only when it is safe. See id. § 546.001(2) (authorizing police officer to “proceed past a red or stop signal or stop sign, after slowing as necessary for safe operation.”).
We turn first to the question of whether the City met its initial burden to prove conclusively Simmons's good faith. As this court has held, an opinion that a police officer acted in good faith does not conclusively establish good faith when the opinion is reached “by assuming the truth of disputed facts.” Green, 274 S.W.3d at 20; City of Brazoria v. Ellis, No. 14-14-00322-CV, 2015 WL 3424732, at *5 (Tex. App.—Houston [14th Dist.] May 28, 2015, no pet.) (mem. op.).
Simmons stated in his affidavit, “I believe that a reasonably prudent law enforcement officer under the same or similar circumstances could have believed that my actions were justified based on my perception of the facts at the time․” But the actions to which Simmons refers include his driving with his car's overhead emergency lights activated. Jefferson offered his opinion that “based on all of the facts stated above, another reasonably prudent law enforcement officer, including myself, under the same or similar circumstances could have believed that ․ all Officer Simmons'[s] decisions and actions before the accident were justified and reasonable based on his perception of the facts at the time.” One of the facts on which Jefferson based this opinion is that the overhead emergency lights of Simmons's patrol car were on at all relevant times.
Thus, the City's evidence of good faith assumes the truth of a disputed fact — that Simmons was using his overhead emergency lights as he approached the Crosstimbers intersection. Simmons testified that he used overhead emergency lights continuously from the beginning of his response to the armed-robbery call, but the record contains other evidence that he did not do so. This evidence includes (1) Gomez's affidavit testimony that Simmons was not using his vehicle's overhead emergency lights and (2) Jefferson's determination in his investigation report that Simmons was not using his vehicle's overhead emergency lights before the collision.
Neither Simmons nor Jefferson proffered a good-faith opinion based on a need-versus-risk analysis under the alternative scenario that Simmons was not using his car's overhead emergency lights as he approached the Crosstimbers intersection. No witness testified that, presuming Simmons did not use his car's overhead emergency lights, a reasonably prudent police officer, under the same or similar circumstances, could have believed Simmons's actions were justified based on the information the officer possessed at the time. Because no witness testified that the standard for good faith was satisfied if Simmons did not use his car's overhead emergency lights, we conclude the City did not demonstrate conclusively that Simmons acted in good faith. See Green, 274 S.W.3d at 20 (concluding that defendant did not conclusively demonstrate that firefighter acted in good faith where defendant's expert's good-faith opinion assumed the truth of disputed facts); Tex. Dep't of Public Safety v. Bonilla, 509 S.W.3d 570, 578–80 (Tex. App.—El Paso 2016, pet. denied) (concluding that governmental entity did not present any evidence that, taking the risk assessment facts as the summary-judgment record showed them to be, a reasonable officer could have come to the same decision); Ellis, 2015 WL 3424732, at *5–7 (concluding that the governmental entity did not conclusively demonstrate that the police officer acted in good faith because the entity's witnesses assumed the truth of the disputed fact that the officer was using his siren as he approached the intersection); Collins v. City of Houston, 14-13-00533-CV, 2014 WL 3051231, at *6 (Tex. App.—Houston [14th Dist.] July 3, 2014, no pet.) (mem. op.) (holding opinions failed to establish good faith because they “relie[d] on assumptions that are not supported by the record”); Harris Cnty. v. Smyly, 130 S.W.3d 330, 335 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (concluding that the governmental entity did not conclusively demonstrate that deputy sheriff acted in good faith in case in which entity's expert witnesses did not base their good-faith opinions on the disputed facts in the light most favorable to the non-movants); Junemann v. Harris Cnty., 84 S.W.3d 689, 694–95 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (holding that when officer's failure to activate lights was disputed, testimony that did not evaluate risks associated with failure to activate lights was insufficient to establish good faith conclusively).1
The City cites the Supreme Court of Texas's opinion in Texas Dept. of Public Safety v. Bonilla, a case in which a Texas Department of Public Safety trooper ran a red light and caused a car accident in which Merardo Bonilla sustained injuries. See 481 S.W.3d 640, 642 (Tex. 2015) (per curiam). The trial court denied the Texas Department of Public Safety's plea to the jurisdiction, and the court of appeals affirmed, giving “decisive weight to evidence that a reasonably prudent officer could have made a different decision.” Id. at 643.
The supreme court reversed, concluding that the court of appeals had applied an incorrect legal standard. See id. at 642–43. The high court stated that “[t]he relevant test ․ is not whether the officers assessed the needs and risks differently, but whether no reasonable prudent officer could have assessed the need and risks as the [law-enforcement officer] did in this case.” Id. at 643. The supreme court noted that evidence a reasonable law-enforcement officer could have resolved the need/risk analysis differently does not overcome competent evidence of good faith. Id. at 644. Emphasizing that the proper focus should be on what a reasonable officer could have believed, the high court stated that the determinative inquiry is whether any reasonably prudent officer possessing the same information could have determined the trooper's actions were justified. See id. at 644.
The supreme court also addressed the court of appeals's alternative holding that the governmental entity's summary-judgment evidence was not competent to establish good faith because it failed to address whether the trooper considered alternative courses of action as an essential part of the need/risk balancing inquiry. See id. Evidence of an officer's good faith must be substantiated with facts showing the officer assessed both the need to apprehend the suspect and the risk of harm to the public. Id. Evidence does not provide a suitable basis for determining good faith if the evidence fails to address several factors the high court has identified as bearing on the need/risk analysis, including the availability of any alternative action. Id. Good faith is not necessarily negated if the evidence reveals that the officer had a viable alternative, but the evidence nevertheless must show the officer assessed the availability of any alternative course of action. Id.
The court of appeals in Bonilla held that the governmental entity's summary-judgment evidence was not competent to prove good faith because it did not establish that the trooper considered whether any alternative course of action was available to stop the speeding truck. Id. at 645. The supreme court disagreed with the court of appeals's characterization of the evidence. Id. The high court stated that “[m]agic words are not required to establish that a law-enforcement officer considered the need/risk balancing factors.” Id. The supreme court held that the governmental entity's summary-judgment proof was adequate to address the alternative-options element of the need/risk analysis, even though it did not “elaborately discuss[ ]” this element. Id. The high court noted that the governmental entity's summary-judgment evidence detailed the specific circumstances giving rise to pursuit and emphasized the potential danger to the public due to the subject vehicle's erratic and unsafe activity. Id. The high court concluded that although the trooper did not explicitly address alternatives to pursuit, the trooper implicitly discounted the viability of other alternatives based on his stated belief that immediate action was necessary and his inability to identify the driver of the speeding vehicle at that time. See id. The supreme court stated that the trooper's failure to expressly identify alternatives that may have been considered did not make the evidence deficient and that the court of appeals erred in holding otherwise. See id.
The high court in Bonilla did not address any issue as to whether an opinion regarding the trooper's good faith assumed the truth of disputed facts. See id. at 643–45. Thus, this precedent is not on point in today's case on the issue of whether the evidence conclusively establishes good faith because in reaching their respective opinions, both Jefferson and Simmons assumed the truth of disputed facts. See id. On remand in Bonilla, the court of appeals again affirmed the trial court's order, this time on the basis that the trooper based his opinion concerning good faith on the truth of material facts that the parties disputed. See Bonilla, 509 S.W.3d at 578–80. The court of appeals concluded that the governmental entity did not present any evidence that, taking the risk assessment facts as the summary-judgment record showed them to be, a reasonable officer could have come to the same decision. See id. at 578
The City does not dispute that the record contains a fact issue as to whether Simmons used his car's overhead emergency lights, but the City argues that this fact issue is not material because, according to the City, even if Simmons decided not to use his car's overhead emergency lights, this decision “was reasonable for the same reasons given for not using the siren.” Simmons testified that he did not activate his car's siren because he “believed that alerting the suspect of [his] presence would cause the suspect to evade apprehension, and because [his] training and experience as a police officer would allow [him] to drive to the scene as quickly, safely, and responsibly as possible under the conditions and circumstances.” Jefferson mentioned these same reasons in his affidavit, and he added a third reason — that “the moderate traffic minimized the need to alert others of [Simmons's] presence.” Neither witness testified that if Simmons had decided not to use the car's overhead emergency lights, that decision would have been reasonable for any of the foregoing reasons, nor did any witness testify that the standard for good faith would be satisfied if Simmons did not use his car's overhead emergency lights. This court is not an expert testifying in this case, and we may not fill gaps in an expert's testimony. See Plunkett v. Christus St. Michael Health Sys., No. 06-16-00010-CV, 2016 WL 7335872, at *5 (Tex. App.—Texarkana Dec. 19, 2016, pet. denied) (mem. op.).
The City cites City of San Antonio v. Ytuarte for the proposition that a fact issue does not preclude a determination that the evidence conclusively proves an officer's good faith unless the court explains how the fact issue affects the good-faith analysis. See 229 S.W.3d 318, 320 (Tex. 2007). In today's case, the fact issue bears on the decisions that Simmons made that are the subject of the good-faith analysis. Simmons and Jefferson each based his opinion on good faith in part on Simmons's use of his car's overhead emergency lights, thus indicating that each thought that this issue was material to the good-faith determination. If Simmons did not use his car's overhead emergency lights, that decision presumably would bear directly on the level of risk to drivers of cars travelling on Crosstimbers Road. See Bonilla, 509 S.W.3d at 579–80 (distinguishing the Ytuarte case). Thus, the Ytuarte case is not on point. See id.
Because the City did not conclusively establish Simmons's good faith, we hold the trial court erred to the extent it granted the City's Jurisdictional Plea on the ground that the City's governmental immunity had not been waived under section 101.021. See Green, 274 S.W.3d at 20; Bonilla, 509 S.W.3d at 578–80; Ellis, 2015 WL 3424732, at *5–7; Collins, 2014 WL 3051231, at *6; Smyly, 130 S.W.3d at 335.
C. Material Fact Issue on Whether the Emergency Exception Applies
Liberally construing Gomez's brief, Gomez asserts that the trial court erred to the extent it granted the City's Jurisdictional Plea based on the emergency exception to section 101.021's waiver of immunity because the evidence raises a fact issue as to whether Simmons acted recklessly. In response, the City argues that the exception applies because it established as a matter of law that Simmons did not act recklessly. We disagree with the City's position because the evidence raises a material fact issue as to whether Simmons acted recklessly or with conscious indifference to the safety of others.
The Act includes a subchapter entitled “Exceptions and Exclusions” that lists circumstances under which a waiver of immunity does not apply. City of San Antonio v. Hartman, 201 S.W.3d 667, 671–72 (Tex. 2006). One of the exceptions addresses emergency scenarios. Under this exception, the Act “does not apply to a claim arising ․ from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others․” Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2) (West 2011). The plaintiff has the burden of presenting some evidence that the emergency exception does not apply. See Ellis, 2015 WL 3424732, at *7.
Under section 546.005 of the Texas Transportation Code, a driver of an emergency vehicle is not relieved of “the consequences of reckless disregard for the safety of others.” Tex. Transp. Code Ann. § 546.005 (West 2011); see Ellis, 2015 WL 3424732, at *7. The emergency exception does not apply if the operator of the emergency vehicle acted recklessly by an act or omission the operator knew or should have known posed a high degree of risk of serious injury. See City of Amarillo v. Martin, 971 S.W.2d 426, 430 (Tex. 1998); Green, 274 S.W.3d at 22–23; Ellis, 2015 WL 3424732, at *7. Thus, if the summary-judgment evidence raises a fact issue as to whether Simmons acted recklessly, then the trial court erred to the extent it granted the Jurisdictional Plea based on the emergency exception. See Ellis, 2015 WL 3424732, at *7–8.
Simmons's affidavit shows that he subjectively was aware of the risks created when a police officer responds to an emergency call for service.2 Simmons also was aware of the rainy weather and wet streets, but he did not reduce his speed below the posted speed limit to mitigate these risks. The evidence also demonstrates that Simmons chose to (1) look down and away from the road as he approached the intersection and (2) refrain from using his patrol car's siren. Further, there is a factual dispute regarding whether Simmons was using his car's overhead emergency lights as he approached the Crosstimbers intersection. Finally, the evidence shows that Simmons applied his brakes but, because the streets were wet, he was unable to stop his patrol car before the intersection, and his car slid into the path of Gomez's car.
Taken together, this evidence could support a finding that Simmons acted recklessly during his response to the armed-robbery call. Specifically, Simmons decided to (1) not slow his speed below the posted speed limit to compensate for the wet conditions, (2) not use his patrol car's emergency lights and siren, and (3) not maintain visual contact with the road as he approached the intersection. See Green, 274 S.W.3d at 29 (concluding firefighter's failure to wear required corrective lenses and decision not to use siren as he drove fire engine into crossing lane of traffic he could not see were factors supporting finding firefighter was reckless); City of Missouri City v. Passante, No. 14-09-00634-CV, 2010 WL 2998777 at *8 (Tex. App.—Houston [14th Dist.] Aug. 3, 2010, no pet.) (mem. op.) (affirming trial court's denial of plea to jurisdiction because there were fact issues as to whether police officer was reckless, including whether officer (1) was using his emergency lights and siren and (2) could see cross-traffic at intersection); Belle, 297 S.W.3d at 535 (affirming trial court's denial of plea to jurisdiction because there was fact issue as to whether police officer was reckless when he responded to emergency call by traveling twice the speed limit without operating emergency lights or siren). Evidence of this combination of decisions could support a finding that Simmons acted recklessly.
The City contends on appeal that two cases support applying the emergency exception, thereby preserving the City's governmental immunity. Yet, unlike this case, those cases both involved undisputed evidence that the officers in the emergency vehicles were using their emergency lights and sirens while responding to an emergency call. See Tex. Dep't of Public Safety v. Sparks, 347 S.W.3d 834, 841 (Tex. App.—Corpus Christi 2011, no pet.) (reversing trial court's denial of governmental entity's plea to the jurisdiction in part because evidence was undisputed that the police officer “was responding to an emergency call with his emergency lights and siren activated.”); City of Pasadena v. Kuhn, 260 S.W.3d 93, 100 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (same). In light of this crucial factual difference, we conclude that neither Sparks nor Kuhn supports the trial court's decision to grant the City's Jurisdictional Plea.
The trial court erred to the extent it granted the City's Jurisdictional Plea based on the emergency exception to section 101.021's waiver of immunity because the record shows a material fact issue as to whether Simmons acted recklessly. See Green, 274 S.W.3d at 26–27; Passante, 2010 WL 2998777 at *8; Belle, 297 S.W.3d at 534–35.
The City did not conclusively establish Simmons's good faith, and a material fact issue exists as to whether Simmons acted recklessly.3 Therefore, we reverse the trial court's judgment and remand the case to the trial court for further proceedings consistent with this opinion.
EN BANC DISSENTING OPINION
The en banc court grants the City of Houston's motion for en banc reconsideration, withdraws the panel opinion, and issues a new en banc majority opinion and judgment that do not vary in result from that reached by the original panel. Like the panel on original submission, the en banc court holds in a comprehensive majority opinion that the trial court erroneously granted the City's plea to the jurisdiction because the City did not conclusively establish its officer's good faith and, separately, a material fact issue exists as to whether the police officer acted recklessly under the “emergency response” exception to the waiver of immunity under the Texas Tort Claims Act (TTCA). Regrettably, I part ways with the majority on the latter point and conclude that this record does not contain a scintilla of evidence that the responding officer took any challenged action with conscious indifference or reckless disregard for the safety of others. For that reason, I would hold that no genuine issue of material fact exists on the emergency response exception, and that the trial court correctly granted the City's plea. I would affirm the judgment.
Under the doctrine of governmental immunity, political subdivisions of the State, including municipalities, cannot be sued and held liable for the actions of their employees unless a constitutional provision or statute waives immunity to suit and from liability. See, e.g., City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011); City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994); Mem'l Villages Police Dep't v. Gustafson, No. 01-10-00973-CV, 2011 WL 3612309, at *2-3 (Tex. App.—Houston [1st Dist.] Aug. 18, 2011, no pet.) (mem. op.); see also Tex. Civ. Prac. & Rem. Code § 101.025 (immunity to suit waived to extent of liability created by TTCA). The TTCA waives governmental immunity from suit and liability in certain limited circumstances, including when, as here, a party alleges property damage or personal injury arising from the operation or use of a motor-driven vehicle. Tex. Civ. Prac. & Rem. Code §§ 101.021, 101.025; see also Dallas Cty. Mental Health Mental Retardation v. Bossley, 968 S.W.2d 339, 342-43 (Tex. 1998). Exempted from this waiver of immunity, however, are claims included within the TTCA's “emergency response exception.” Tex. Civ. Prac. & Rem. Code § 101.055(2); Harris County v. Spears, No. 14-17-00662-CV, 2018 WL 4571841, at *2 (Tex. App.—Houston [14th Dist.] Sept. 25, 2018, no pet.) (mem. op.). Under that exception to immunity from liability, the TTCA does not apply to a claim based on a governmental unit's employee's allegedly wrongful conduct if that employee, while responding to an emergency call or reacting to an emergency situation, acts in compliance with laws or ordinances applicable to the emergency actions or, absent such laws or ordinances, the employee's actions are not taken with conscious indifference or reckless disregard for the safety of others. Tex. Civ. Prac. & Rem. Code § 101.055(2); see also City of San Antonio v. Hartman, 201 S.W.3d 667, 671-72 (Tex. 2006); Tex. Dep't of Public Safety v. Little, 259 S.W.3d 236, 238 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The exception is designed to prevent second-guessing of split-second and time-pressured decisions that public safety personnel must make. See City of San Angelo Fire Dep't v. Hudson, 179 S.W.3d 695, 699 (Tex. App.—Austin 2005, no pet.).
Among other arguments in its plea to the jurisdiction, the City asserted that the TTCA did not waive the City's immunity from liability and from suit because the emergency response exception applies. See Tex. Civ. Prac. & Rem. Code §§ 101.021, 101.025, 101.055. The City argued that Officer Simmons was responding to an emergency situation, that he complied with any applicable laws or ordinances, and that his conduct was not reckless or consciously indifferent. In support, the City attached among other evidence the affidavits of two police officers, including Officer Simmons. Once a defendant invokes the exception, the plaintiff bears the burden to establish that the exception does not apply. See Hartman, 201 S.W.3d at 672; Quested v. City of Houston, 440 S.W.3d 275, 285 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Little, 259 S.W.3d at 238-39. Thus, Gomez was required to present evidence sufficient to raise a fact issue that: (1) Officer Simmons was not responding to an emergency call or reacting to an emergency situation; (2) Officer Simmons's actions did not comply with the laws or ordinances applicable to the emergency situation; or (3) Officer Simmons's challenged actions were taken with conscious indifference or reckless disregard for the safety of others. See Quested, 440 S.W.3d at 285; Little, 259 S.W.3d at 238. Here, the inquiries under (2) and (3) above are essentially identical because the only law Gomez argued Officer Simmons violated is Texas Transportation Code section 546.005, which provides that a driver of an emergency vehicle is not relieved of “the consequences of reckless disregard for the safety of others.” Tex. Transp. Code § 546.005(2); see also City of Amarillo v. Martin, 971 S.W.2d 426, 430 (Tex. 1998).1 Accordingly, the emergency response exception applies unless Gomez presented some evidence that Officer Simmons was not responding to an emergency or that his actions showed conscious indifference or reckless disregard for the safety of others.
My colleagues in the majority conclude that Gomez met her burden by presenting some evidence of recklessness, citing three fact disputes that they say together rise to a level sufficient to support a finding that Officer Simmons acted recklessly during his response to the armed-robbery call. According to the majority opinion, Officer Simmons: (1) did not slow his speed below the posted speed limit to compensate for the wet conditions; (2) did not use his patrol car's overhead lights and siren; and (3) did not maintain visual contact with the road as he approached the intersection. In my view, the record does not support the majority's holding.
The terms “conscious indifference” and “reckless disregard” are not defined, and therefore we afford them their ordinary meaning. See Tex. Gov't Code § 311.011(a) (Code Construction Act); Hartman, 201 S.W.3d at 672 n.19; City of Pasadena v. Kuhn, 260 S.W.3d 93, 99 (Tex. App.—Houston [1st Dist.] 2008, no pet.); Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 410-11 (Tex. App.—Fort Worth 2006, pet. denied). In defining these terms, the Supreme Court of Texas has stated that “[t]o recover damages resulting from the emergency operation of an emergency vehicle, a plaintiff must show that the operator has committed an act that the operator knew or should have known posed a high degree of risk of serious injury.” Martin, 971 S.W.2d at 429-30. As the supreme court stated in Martin, the relevant standard imposes a duty to drive with due regard for others by avoiding negligent behavior, but it only imposes liability for reckless conduct. Id. at 431 (emphasis in original). More recently, the supreme court has stated that the terms “conscious indifference” and “reckless disregard” “require proof that a party knew the relevant facts but did not care about the result.” Hartman, 201 S.W.3d at 672 n.19. Significantly, this standard “requires a showing of more than a momentary judgment lapse.” Martin, 971 S.W.2d at 430; see also Quested, 440 S.W.3d at 285; Perez v. Webb County, 511 S.W.3d 233 (Tex. App.—San Antonio 2015, pet. denied); Kuhn, 260 S.W.3d at 99. Though a plaintiff need present only some evidence of recklessness to create a genuine issue of material fact,2 the evidence offered must show that the emergency responder knew or should have known that his or her conduct posed a high degree of risk of serious injury, and that the official simply did not care about the result. This is a materially and substantively higher bar than mere negligence. See Martin, 971 S.W.2d at 430.3
A. Lights and siren
The majority's reliance on the assertion that Officer Simmons did not use his patrol car's lights and siren to support a potential recklessness finding is problematic for more than one reason.4 To begin with, the en banc majority reverses the trial court's judgment based in part on a contention Gomez never advanced below. Gomez did not contend in her response to the City's plea that Officer Simmons was reckless because he failed to activate his overhead lights or siren. Although Gomez cited evidence that Officer Simmons did not activate his lights, she never asserted that his failure to do so constituted recklessness or established a fact issue under the emergency response exception. As Gomez did not advocate that position to the trial court, we should not rely upon it to reverse the judgment. See Tex. R. App. P. 33.1(a); Murphy v. City of Galveston, 557 S.W.3d 235, 244 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (refusing to consider on appeal argument not advanced in response to city's plea to the jurisdiction).
In any event, the larger problem I see with the en banc majority's rationale is that responding without activating the patrol vehicle's lights and siren simply is not reckless conduct given the evidence in our record concerning procedures for responding to “priority two” calls. Officer Simmons and Sergeant Jefferson both explained that “priority two” calls deal mainly with in-progress property crimes or a threat to human welfare and assume an in-progress event or one that has recently occurred, or that a response to the scene is “urgent.” As both officers stated, the standard response to priority two calls is to “run silent without red lights and siren.” The City also attached HPD General Order #600-01, which confirms that the standard response to priority two calls is without lights and siren.5 Gomez presented no controverting evidence, expert or otherwise, that it is reckless for an officer to respond to a priority two call without activating the patrol vehicle's overhead lights or siren even though responding in that manner is standard HPD procedure. We cannot rely upon the presumed fact that Officer Simmons's overhead lights were not activated to reverse on recklessness grounds because the record demonstrates conclusively that not activating visible signals in this circumstance complies with department policy. If a responding officer is permitted under HPD protocol to respond to a priority two call without activating overhead lights or sirens, then responding to the call in that manner cannot be reckless or provide any support for a recklessness finding as a matter of law.6 Accepting the majority's view will potentially produce absurd results. For example, insofar as use of audible or visual signals are concerned, emergency vehicle operators engaging in conduct permitted by Transportation Code section 546.001 are required by statute to act “in accordance with policies of the department or the local government that employs the operator.” Tex. Transp. Code § 546.003.7 Acting in accordance with department policy as required by law is not reckless.
B. Visual contact with the road
As additional support for reversing the judgment, the majority states that Officer Simmons did “not maintain visual contact with the road as he approached the intersection.” This conduct is not reckless either because Gomez presented no evidence that it was consciously indifferent to her or other motorists under the circumstances. According to the record, as Officer Simmons drove south on Lockwood, the road was wet but traffic was moderate, he was careful to watch for other drivers, he observed cross traffic on Crosstimbers without obstruction or impediment, and he did not exceed the speed limit. The traffic light was green as he approached the Crosstimbers intersection. While the light was green, Officer Simmons looked to his police radio to increase the volume. The light changed to yellow and he immediately applied his brakes before entering the intersection.
With her response to the City's plea, Gomez presented the deposition excerpts of Officer Simmons, Sergeant Isaac Jefferson, and Sergeant Connie Park. None of these witnesses, however, testified that it would be reckless or consciously indifferent to other motorists for an officer responding to an emergency, and approaching an intersection with a green traffic light, to momentarily look at the police radio knob to increase the volume. Sergeants Jefferson and Park were not even asked a question on that topic. When Officer Simmons looked up, the light changed to yellow and he stopped immediately rather than proceeding through the intersection. Gomez presented no evidence controverting the officer's affidavit and deposition testimony that the light ahead of him was green when he briefly looked down at his police radio. I question whether the officer's conduct was even a failure to exercise ordinary care, but assuming as much it certainly was not consciously indifferent. At most, this is precisely the type of “momentary judgment lapse” that the emergency response exception protects from suit. See City of Houston v. Davis, No. 01-13-00600-CV, 2014 WL 1678907, at *6 (Tex. App.—Houston [1st Dist.] Apr. 24, 2014, pet. denied) (mem. op.); Kuhn, 260 S.W.3d at 99.
C. Rate of speed
What we are left with is the officer's rate of speed. According to the en banc majority, Officer Simmons's decision not to slow below the posted speed limit to compensate for the wet conditions contributes to and, along with the other facts discussed above, may support a potential recklessness finding. Again, I respectfully disagree. Officer Simmons was not exceeding the speed limit as he approached the intersection, and he checked traffic before entering the intersection and saw no vehicles coming westbound. He applied his brakes immediately upon seeing the yellow light. Gomez asserts that Officer Simmons was driving too fast to stop before entering the intersection, but she presented no evidence of his speed at the relevant time or that Simmons knew or should have known that his rate of speed, though not exceeding the speed limit, nonetheless presented a high degree of risk of serious injury or indicated that he simply did not care about other motorists—as is required to raise a fact issue on recklessness. She presented no expert testimony, and none of the officer deposition excerpts attached to her response states such an opinion. Sergeant Park said that it is not protocol for a responding officer to stop at an intersection if the traffic light is yellow, and the sergeant acknowledged the unremarkable proposition that that officers responding to an emergency are supposed to drive at a “safe rate of speed where you can stop.” One fact not included in Officer Simmons's affidavit but acknowledged in his deposition is that he was not issued a citation for the accident, but later received a letter of reprimand stating that he was at fault.8 None of this constitutes evidence that Officer Simmons knew or should have known that driving at the speed limit in response to an emergency, even in wet conditions but with moderate traffic on Christmas Eve morning, posed a high degree of risk of serious injury to others but that he just did not care.
D. Gomez's evidence shows at most negligent, not reckless, conduct
The supreme court has said that the applicable standard under Civil Practice and Remedies Code section 101.055(2) requires a plaintiff to show that the operator has committed an act that the operator knew or should have known posed a high degree of risk of serious injury, but did not care about the result. Hartman, 201 S.W.3d at 672 n.19; Martin, 971 S.W.2d at 429-30. I fear the en banc majority opinion collapses the critical distinction between negligence and recklessness. See Perez, 511 S.W.3d at 241-42 (Barnard, J., concurring) (concluding plaintiff's evidence raised fact question on negligence, but not recklessness); cf. Martin, 971 S.W.2d at 430 (noting “reckless disregard” test under Transportation Code not satisfied with proof of ordinary negligence or momentary lapses of judgment). The result exposes the City to suit and potential liability based on at most, and on this record, an officer's negligence. Here, indulging all material fact disputes in Gomez's favor, no evidence shows that Officer Simmons knew or should have known that the conduct the majority cites posed a high degree of risk of serious injury, but did not care what happened to Gomez or other drivers. See Quested, 440 S.W.3d at 286; Davis, 2014 WL 1678907, at *6; City of San Antonio v. Riley, No. 04-09-00162-CV, 2009 WL 2045231, at *2 (Tex. App.—San Antonio July 15, 2009, no pet.) (mem. op.) (plaintiff presented no evidence of recklessness when affidavit describing ambulance actions that caused wreck amounted only to negligent conduct; plaintiff presented no evidence of officer's conscious indifference); Pakdimounivong, 219 S.W.3d at 410-12 (holding that officers' actions were not taken with conscious indifference or reckless disregard for safety of deceased when no evidence showed that officers did not care what happened to deceased). The en banc majority opinion could be read to mean that a scintilla of evidence of negligence is sufficient to raise a fact issue on recklessness, which is clearly contrary to supreme court precedent. This accident resulted from at most momentary negligence, not recklessness or conscious indifference.
E. Emergency response
Gomez asserts in our court, as she asserted in the trial court, that an emergency situation did not exist at the time of the accident, and for that reason the TTCA's emergency response exception in section 101.055(2) does not apply. The TTCA does not define the terms “emergency call” or “emergency situation,” but Texas courts have interpreted the term “emergency” broadly. See, e.g., Hartman, 201 S.W.3d at 672 (concluding that section 101.055(2) applied to a suit involving city's reaction to roadway flooding); Little, 259 S.W.3d at 237-39 (call to assist with a wanted person considered an emergency); Pakdimounivong, 219 S.W.3d at 410-11 (officers were responding to an emergency situation in which suspect in patrol car tried to escape through back window); see also Jefferson County v. Hudson, No. 09-11-00168-CV, 2011 WL 3925724, at *3 (Tex. App.—Beaumont Aug. 25, 2011, no pet.) (mem. op.) (“emergency” as used in section 101.055 “refers to unforeseen circumstances that call for immediate action”).
The majority opinion does not address the issue. I would reject Gomez's argument because the City presented evidence that Officer Simmons responded to an emergency call, and Gomez presented no controverting evidence on that point. For example, the affidavits filed with the City's plea establish that Officer Simmons received a “priority one” dispatch report of a robbery in progress, which was reduced to a “priority two” due to rainy weather conditions. Officers Simmons and Jefferson both stated that the priority two dispatch to which Officer Simmons responded was an emergency. In response to the plea, Gomez offered no evidence to controvert the City's proof that Officer Simmons was responding to an emergency call. Therefore, the evidence is conclusive that Officer Simmons was responding to an emergency. See, e.g., Hartman, 201 S.W.3d at 672; Spears, 2018 WL 4571841, at *4-5 (priority two response presents an emergency situation; claimant failed to raise fact issue that officer was responding to emergency at time of collision); Galveston Cty. Health Dist. v. Hanley, No. 01-14-00166-CV, 2014 WL 6853608, at *3 (Tex. App.—Houston [1st Dist.] Dec. 4, 2014, no pet.) (mem. op.) (holding plaintiff failed to create a fact issue that ambulance was responding to emergency).
Finally, Gomez argues in her appellate brief that the City failed to establish that Officer Simmons was responding to an emergency call because the affidavits offered in support of that proposition are substantively defective. In particular, Gomez contends that Sergeant Jefferson's affidavit, which states that Officer Simmons's overhead lights were activated, conflicts with the accident report, which states that they were not. Based on the accident report, Gomez says, Sergeant Jefferson's affidavit is legally insufficient because it assumes facts that vary from the actual facts.
Gomez's criticism of Sergeant Jefferson's affidavit does not render it substantively defective. Rather, the affidavit and accident report differ on a material fact, which, as stated, must be (and has been) construed in Gomez's favor. In a final challenge to all three officers' affidavits, Gomez contends that each merely assumes an emergency situation existed, but that their assumptions are not supported by the “CFS call slip” report relating to this incident. Gomez's argument, however, relies on her unsupported personal interpretation of the report and its codes—as opposed to expert testimony—that in turn is based on information outside the record, which we cannot consider. See Bencon Mgmt. & Gen. Contracting, Inc. v. Boyer, Inc., 178 S.W.3d 198, 210-11 (Tex. App.— Houston [14th Dist.] 2005, no pet.).
For these reasons, the en banc court having granted the City's motion for rehearing en banc, I would affirm the trial court's judgment.
1. Cf. City of San Angelo v. Hudson, 179 S.W.3d 695, 700–01 (Tex. App.—Austin 2005, no pet.) (holding good faith conclusively proven where undisputed evidence established fire truck was using emergency lights, siren, and air horn as it approached intersection and the driver testified he was driving below speed limit and considered stopping at intersection but, after looking both ways and observing that traffic had yielded to his fire truck and evaluating need for a prompt response to emergency, decided not to stop completely but instead to slow down significantly before entering intersection).
2. For example, Officer Simmons stated in his affidavit that he “considered both the need to immediately find and apprehend the robbery suspect and the risk of harm to other drivers and pedestrians from my driving there as quickly as possible.” Officer Simmons also stated that he “was also careful to watch for others on the roadway while driving en route.”
3. We need not and do not reach Gomez's arguments that the affidavits the City attached to the Jurisdictional Plea contain substantive defects.
1. Martin interpreted the statutory predecessor to Texas Transportation Code section 546.005. See Martin, 971 S.W.2d at 428-30. Like the current version of section 546.005, the statute analyzed in Martin stated that the driver of an emergency vehicle is not protected “from the consequences of his reckless disregard for the safety of others.” See Act of June 5, 1947, 50th Leg., R.S., ch. 421, § 24, 1947 Tex. Gen. Laws 967, 970 (Tex. Rev. Civ. Stat. Ann. art. 6701d, § 24(e)), codified and repealed by Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, sec. 546.005, 1995 Tex. Gen. Laws 1025, 1647 (codification), 1871 (repealer); Tex. Civ. Prac. & Rem. Code § 546.005(2).
2. See Hartman, 201 S.W.3d at 673.
3. In support of its definition of “recklessness,” the supreme court in Martin cited its decision in Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322 (Tex. 1993). In Alexander, the court discussed at length the factors elevating gross negligence from ordinary negligence, which include in general terms an extreme risk component and a subjective intent component. Id. at 326.
4. It is undisputed that Officer Simmons did not activate his vehicle's siren; it is disputed whether he activated the overhead lights.
5. If the situation clearly warrants it, the officer has discretion to activate the lights or siren but must so notify the dispatcher.
6. Analysis of the emergency response exception is distinct from the good faith test for official immunity, so whether or not Officer Simmons's affidavit actually assumed that his overhead lights were not activated for purposes of a risk/need evaluation is irrelevant. Gomez presented evidence that Officer Simmons's lights were not on when the accident occurred. To analyze recklessness under section 101.055(2), we accept the plaintiff's facts as true and evaluate whether they create a genuine issue of material fact on recklessness. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-28 (Tex. 2004).
7. The full text of section 546.003 provides: “Except as provided by Section 546.004, the operator of an authorized emergency vehicle engaging in conduct permitted by Section 546.001 shall use, at the discretion of the operator in accordance with policies of the department or the local government that employs the operator, audible or visual signals that meet the pertinent requirements of Sections 547.305 and 547.702.”
8. The letter is not in our record and Officer Simmons did not contest that he was at fault. At most, such a letter of reprimand may support negligence, not recklessness. See City of Arlington v. Barnes, No. 02-07-00249-CV, 2008 WL 820385, at *4 (Tex. App.—Fort Worth Mar. 27, 2008, pet. denied) (mem. op.). Because the letter is not in our record, it is unknown why the reprimand issued or whether the letter detailed circumstances that may support a recklessness finding.
Kem Thompson Frost, Chief Justice
Chief Justice Frost authored the En Banc Majority Opinion, in which Justices Christopher, Bourliot, Zimmerer, Hassan, and Poissant joined. Justice Jewell authored an En Banc Dissenting Opinion, in which Justices Wise and Spain joined.
Response sent, thank you
Docket No: NO. 14-17-00811-CV
Decided: October 29, 2019
Court: Court of Appeals of Texas, Houston (14th Dist.).
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