Opinion
NUMBER 13-15-00261-CV
02-11-2016
HIDALGO COUNTY, TEXAS, Appellant, v. MICHAEL CALVILLO, AND ROSE RIVERA, INDIVIDUALLY, AND AS NEXT OF FRIEND OF LUIS ESPINOZA AND AARON CALVILLO, Appellees.
On appeal from the 92nd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes, and Longoria
Memorandum Opinion by Justice Perkes
Appellees Michael Calvillo and Rose Rivera (collectively Calvillo) filed suit against appellant Hidalgo County (the County), individually and as next friend of Luis Espinoza and Aaron Calvillo, under the Texas Tort Claims Act (TTCA) for injuries arising out of a vehicular collision with a Hidalgo County Sheriff's Deputy. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021, 101.055 (West, Westlaw through 2015 R.S.). The County filed an answer and a plea to the jurisdiction, and later, an amended plea to the jurisdiction.
Calvillo initially sued Hidalgo County, Hidalgo County Sheriff's Office, and the deputy who was involved in the collision. In his amended live petition, Calvillo abandoned his claims against the Hidalgo County Sheriff's Office and the deputy while maintaining his claim against Hidalgo County.
The trial court denied the County's plea to the jurisdiction and this interlocutory appeal followed. See id. § 51.014(a)(8) (West, Westlaw through 2015 R.S.) (allowing interlocutory appeals from the denial of a governmental unit's plea to the jurisdiction). The County contends that the trial court erred in denying its plea to the jurisdiction because: (1) Calvillo failed to contradict the County's evidence that the deputy was responding to an emergency call; (2) Calvillo failed to offer evidence that the deputy was reckless; and (3) the County retains its sovereign immunity via derivative immunity since the deputy acted in good faith. We affirm.
I. BACKGROUND
Hidalgo County Sheriff's Deputy Fernando Olivarez was patrolling in Mission, Texas when he received a dispatcher radio broadcast of an active shooting in La Joya, Texas in which two police officers had been injured. Olivarez, while responding to the emergency call, approached Calvillo's vehicle which was traveling in the same direction. As Olivarez attempted to pass Calvillo on the right shoulder, Calvillo made a 90 degree right turn, and the two vehicles collided, causing Calvillo's SUV to roll over and land on the passenger side.
According to Calvillo's petition, La Joya is approximately eleven miles away from Mission.
Calvillo filed suit against Hidalgo County, seeking damages for injuries resulting from the collision. Calvillo alleged that Olivarez was driving in heavy traffic, and that he was "driving at an unreasonable rate of speed (far above the speed limit) on a shoulder with a reckless disregard for the safety of others." He further alleged that "[t]he report from the officer from the Mission Police Department who responded to the collision . . . stated that he was 'passing to the right unsafely'" and that a witness stated that he was travelling approximately 80 miles per hour (35 miles per hour in excess of the speed limit). Additionally, he alleged that Olivarez's conduct violates Texas Transportation Code sections 546.001 (3)—endangering life and property when exceeding the maximum speed limit and 546.005—failing to operate a vehicle with appropriate regard for the safety of all persons. See TEX. TRANSP. CODE ANN. §§ 546.001(3), 546.005 (West, Westlaw through 2015 R.S.).
The County filed a plea to the jurisdiction, and later an amended plea to the jurisdiction. No affidavit was attached to either plea. The County asserted that Calvillo failed to identify specific conduct of the deputy that would support the conclusion that he disregarded the safety of others. The County noted that the conduct alleged in Calvillo's petition—that the deputy was traveling at an "incredibly high rate of speed" and passed Calvillo's vehicle unsafely—is permitted by the transportation code in emergency response situations. See id. §§ 546.001, 545.058. The County attached to its amended plea a copy of the dispatcher's recordings and various news articles to show that Olivarez was responding to an emergency call at the time of the accident. In addition, the County attached the Sheriff Office's accident report. It consisted of a two page summary of the accident and corresponding law enforcement accident forms. The summary includes statements from Olivarez about his response to an emergency dispatch call and the activation of his vehicles lights and sirens. The report does not indicate the speed the deputy was driving. According to the investigator's opinion, the accident was caused when the patrol vehicle "overtook several vehicles while passing to the right unsafely[.]"
Calvillo filed a response to the County's plea to the jurisdiction. In it, Calvillo expanded upon what he alleged in his pleadings. In addition, he attached a copy of the Sheriff Office's accident report, a copy of a television station's Facebook posting regarding the accident and the numerous comments that followed the posting, and a map purportedly showing the distance between the accident in Mission and the police altercation in La Joya.
During the hearing, neither party presented any witnesses. However, the trial court did admit into evidence, at Calvillo's request and over the County's objection, a copy of the television station's Facebook posting and comments. Included in the comments were statements that the officer was driving around 80 miles per hour. After listening to legal argument, the trial court denied the County's plea to the jurisdiction.
The County generally objected to the exhibit on the ground of hearsay. The trial court, however, stated it would allow the exhibit, but also stated it would redact whatever was hearsay. No redactions are included in the record on appeal.
II. PLEA TO THE JURISDICTION
A plea to the jurisdiction is a dilatory plea; its purpose is "to defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court's subject matter jurisdiction over a pleaded cause of action. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Subject matter jurisdiction is a question of law; therefore, when the determinative facts are undisputed, we review the trial court's ruling on a plea to the jurisdiction de novo. Id. "Sovereign immunity deprives a trial court of jurisdiction over lawsuits in which the state or certain governmental units have been sued, unless the state consents to suit. As a result, immunity is properly asserted in a plea to the jurisdiction." Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012).
In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). We assume the truth of the jurisdictional facts alleged in the pleadings unless the defendant presents evidence to negate their existence. Miranda, 133 S.W.3d at 226-27. "In those situations, a trial court's review of a plea to the jurisdiction mirrors that of a traditional summary judgment motion." Garcia, 372 S.W.3d at 635.
"Initially, the defendant carries the burden to meet the summary judgment proof standard for its assertion that the trial court lacks jurisdiction." Id. If a plea to the jurisdiction challenges the jurisdictional facts, we consider relevant evidence submitted by the parties to resolve the jurisdictional issues raised. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009) (citing Miranda, 133 S.W.3d at 227); see Bland Indep. Sch. Dist., 34 S.W.3d at 555. If that evidence creates a fact issue as to jurisdiction, then the case is for the fact-finder to decide on the merits. Kirwan, 298 S.W.3d at 622; Miranda, 133 S.W.3d at 227-28. "However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law." Miranda, 133 S.W.3d at 228.
The plea should be decided without delving into the merits of the case. Bland Ind. Sch. Dist., 34 S.W.3d at 554. The purpose of the plea is not to force a plaintiff to preview its case on the merits, but to establish why the merits of the claims should never be reached. Id. Although the issues raised by a plea to the jurisdiction often require hearing evidence, a plea to the jurisdiction does not authorize an inquiry so far into the substance of the claims presented that the plaintiff is required to put on his case simply to establish jurisdiction. Id. Whether a determination of subject matter jurisdiction can be made in a preliminary hearing or should await a fuller development of the merits of the case must be left to the trial court's discretion. Id.
III. EMERGENCY EXCEPTION
By its first two issues, the County argues that the trial court improperly denied its plea to the jurisdiction because: (1) Calvillo failed to contradict the County's evidence that Olivarez was responding to an emergency call; and (2) Calvillo failed to offer any evidence that Olivarez's actions were reckless. Because they are interrelated, we will address these issues together.
A. Applicable Law
A governmental unit is immune from both suit and liability unless its immunity has been waived. See Tex. Dep't of Transp. v. Garza, 70 S.W.3d 802, 806 (Tex. 2002). Under the TTCA, a governmental unit is liable and waives immunity for:
(1) 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:
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021; see id. § 101.025.(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[.]
Generally, a TTCA claim may not be brought against the government when the claim arises
from the action of a government 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 a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others[.]Id. § 101.055. However, governmental employees who respond to emergency calls in authorized emergency vehicles, which include police vehicles, are subject to liability under the TTCA and transportation code if their conduct violates the laws and ordinances applicable to emergency response or is reckless. Kaufman County v. Leggett, 396 S.W.3d 24, 28-29 (Tex. App.—Dallas 2012, pet. denied).
The transportation code governs vehicle operations of emergency responders. See TEX. TRANSP. CODE ANN. §§ 546.001, 546.005. For instance, the operator of an emergency vehicle may exceed a maximum speed limit as long as the operator does not endanger life or property. Id. § 546.001(4). However, the Transportation Code does not relieve the operator of an emergency vehicle from the duty to operate the vehicle with appropriate regard for safety of all persons or the consequences of reckless disregard for the safety of others. Id. § 546.005. To the contrary, section 546.005 "imposes a duty to drive with due regard for others by avoiding negligent behavior, but it only imposes liability for reckless conduct." City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998) (interpreting TEX. REV. CIV. STAT. art. 6701d, § 24(b), repealed by Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 TEX. GEN. LAWS 1025 (current version at TEX. TRANSP. CODE ANN. § 546.001-005)).
To establish liability under the TTCA, a plaintiff must show that the governmental employee operated a motor vehicle with "conscious indifference or reckless disregard for the safety of others", meaning that "a party knew the relevant facts but did not care about the result." Kaufman County, 396 S.W.3d at 29 (citing Hartman, 201 S.W.3d at 672 n.19; TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2)). In assessing the operator's conduct of a government vehicle when determining whether the vehicle was operated with conscious indifference or in a reckless manner during an emergency situation for purposes of the TTCA and the transportation code, courts may not engage in judicial second-guessing for momentary lapses in judgment by emergency personnel responding to emergency situations. Id.
B. Discussion
The County notes that it is undisputed that Olivarez was responding to an emergency call. The parties agree on this point. Calvillo's petition states that the deputy was responding to a shooting by a man barricaded inside his home. Furthermore, the vehicle accident report prepared after the collision noted that the deputy was responding to an emergency call. We agree with the County that the undisputed evidence establishes that the deputy was responding to an emergency call. See Kaufman County, 396 S.W.3d at 29; Tex. Dep't of Public Safety v. Sparks, 347 S.W.3d 834, 837-38 (Tex. App.—Corpus Christi 2011, no pet.). As a result, the question turns to whether there was evidence that Olivarez's conduct was reckless. See Martin, 971 S.W.2d at 431; Sparks, 347 S.W.3d 842.
Regarding the alleged reckless conduct, the County asserts that since it showed that the deputy was responding to an emergency call, the burden is now on Calvillo to offer evidence of recklessness in order to survive the plea to the jurisdiction. In support of its burden-shifting argument, the County cites Sparks, 347 S.W.3d at 838. In Sparks, a DPS officer, while responding to an emergency, was involved in a traffic accident while driving through an intersection. See id., at 836. The DPS filed a plea to the jurisdiction. See id. Along with the plea, the DPS provided evidence showing that officer's operation of his motor vehicle was not reckless. See id. Specifically, the DPS provided three affidavits which described how the officer slowed and checked traffic conditions before proceeding through the intersection. See id. at 839-40. We concluded that the DPS's evidence was sufficient to demonstrate that the officer complied with applicable statutes and had not driven recklessly. See id. at 840; see also TEX. TRANSP. CODE ANN. § 546.005; Smith v. Janda, 126 S.W.3d 543, 545 (Tex. App.—San Antonio 2003, no pet.) (evidence was insufficient to establish recklessness when ambulance driven to emergency with lights and sirens activated as it approached intersection; other drivers at intersection could hear and see sirens and lights, and the ambulance driver slowed down, looked, and then proceeded into intersection without coming to complete stop). Thus, the burden shifted to Sparks to raise a genuine issue of material fact regarding whether the officer acted with conscious indifference or recklessness. See Sparks, 347 S.W.3d at 842.
Sparks is distinguishable. In the instant case, the County did not produce any affidavit or testimonial evidence whatsoever. Further, the DPS did not submit the video of the accident for review. Rather, the only evidence the County offers to show that Olivarez was not reckless is the accident report. The report includes a general summary of the accident with quotes from Olivarez and Calvillo. In the report, Olivarez states that he attempted to pass Calvillo's vehicle on the shoulder when Calvillo made a right turn. Calvillo stated that he never saw the patrol vehicle's lights or heard the siren. He further stated that as he turned right, his wife told him "cuidado, cuidado" as he was struck by the deputy's vehicle. Although the report does not indicate the speed that Olivarez was traveling when the accident occurred, the collision caused Calvillo's vehicle to roll.
In summary, the record is devoid of any evidence regarding traffic conditions, whether Olivarez slowed as he passed Calvillo on the shoulder, or whether Olivarez demonstrated a concern for the welfare of other motorists. See City of San Angelo Fire Dep't v. Hudson, 179 S.W.3d 695, 701-02 (Tex. App.—Austin 2005, no pet.) (holding that government employee's uncontroverted affidavit describing actions he took while responding to an emergency demonstrated that employee complied with applicable statutes as matter of law).
Indulging every reasonable inference and resolving any doubts in Calvillo's favor, as we must, we conclude that the evidentiary record is insufficient to demonstrate that the deputy did not act with conscious indifference or reckless disregard for the safety of the public. See City of Amarillo v. Pruett, 44 S.W.3d 702, 706 (Tex. App.—Amarillo 2001, pet. denied) (holding that factfinder could consider officer's speed and traffic conditions in determining recklessness); see also Miranda, 133 S.W.3d at 228. The County did not meet its burden of proof for its assertion that the trial court lacks jurisdiction on the issue of recklessness; thus, the burden of proof never shifted. See Mission, 372 S.W.3d at 635. We overrule the County's first two issues.
IV. GOOD FAITH
By its third issue, the County asserts that the trial court improperly denied its plea to the jurisdiction since Olivarez acted in good faith, and therefore, the County retains its sovereign immunity via derivative immunity.
A. Applicable Law
Official immunity based on good faith is an affirmative defense, and therefore the burden rests on the County to establish all elements of that defense. City of Pasadena v. Belle, 297 S.W.3d 525, 530 (Tex. App.—Houston [14th Dist.] 2009, no pet.); see Green v. Alford, 274 S.W.3d 5, 16 n.11 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). If the government employee is protected from liability under the doctrine of official immunity, the governmental entity's sovereign immunity remains intact. See City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex. 1993).
Under this affirmative defense, a government employee is immune from a lawsuit that arises from: (1) the performance of discretionary duties; (2) in good faith; and (3) provided he was acting in the course and scope of his authority. Id. Good faith is a standard of objective legal reasonableness that disregards the police officer's subjective state of mind. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). The defendant has 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. Id.; City of Lancaster v. Chambers, 883 S.W.2d 650, 656-57 (Tex. 1994). To rebut a defendant's showing of good faith, a plaintiff must establish that no reasonable person in the officer's position could have thought the facts were such that they justified the officer's actions. Id.
The good-faith standard of reasonableness is subject to a balancing test that weighs the need for the officer's actions against the risks entailed by the conduct 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 test refers to the urgency of the circumstances requiring police intervention. In the context of an emergency response, need is determined by factors such as the seriousness of the crime or accident to which the officer responds, whether the officer's immediate presence is necessary to prevent injury or loss of life or to apprehend a suspect, and what alternative courses of action, if any, are available to achieve a comparable result. The "risk" aspect of good faith, on the other hand, refers to the countervailing public safety concerns: the nature and severity of harm that 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 emergency), the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent officer.State v. Saenz, 967 S.W.2d 910, 914 (Tex. App.—Corpus Christi 1998, pet. denied) (citing Wadewitz, 951 S.W.2d at 467).
To prevail, a defendant's proof must sufficiently address these need/risk factors. Telthorster v. Tennell, 92 S.W.3d 457, 462 (Tex. 2002). Only when it has been determined that the governmental unit has 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. Belle, 297 S.W.3d at 531.
B. Discussion
In discussing the need factors, the County first points to the seriousness of the crime. There is no dispute that Olivarez was responding to a call pertaining to a shoot-out where two officers were injured. We agree with the County that the crime was serious, but the County offers no evidence to show that Olivarez's presence was necessary to prevent further injury or loss of life. See Wadewitz, 951 S.W.2d at 467. Although the County argues that a reasonably prudent officer would have thought his presence was requested based on the urgency of the call, there is no evidence in the record about what a reasonably prudent officer would have done under the same circumstances. See id.; see also Chambers, 883 S.W.2d at 656-57.
The County's analysis of the risk factors attempt to lay blame on Calvillo for the accident. The County asserts that Calvillo failed to yield to an emergency vehicle and made an incorrect right turn. However, our focus is on Olivarez's actions. See Wadewitz, 951 S.W.2d at 467. The record does not address alternative routes Olivarez could have taken, or the degree, likelihood, and obviousness of the risks created by Olivarez's actions. See id; see also Chambers, 883 S.W.2d at 656. Without addressing the risk factors in the good faith balancing test, the County does not have a suitable basis for concluding that a reasonable officer in Olivarez's position could have believed his actions were justified. As a result, the evidence does not conclusively establish that Olivarez acted in good faith. Wadewitz, 951 S.W.2d at 467; see also City of La Joya v. Herr, 41 S.W.3d 755, 762 (Tex. App.—Corpus Christi 2001, no pet.).
The County failed to carry its burden of proof for its assertion that the trial court lacks jurisdiction with respect to good faith. See Mission, 372 S.W.3d at 635. The County's third issue is overruled.
V. CONCLUSION
We affirm the trial court's order denying the County's plea to the jurisdiction.
GREGORY T. PERKES
Justice Delivered and filed the 11th day of February, 2016.