Opinion
02-22-00406-CV
04-20-2023
Area Metropolitan Ambulance Authority d/b/a MedStar Mobile Health, Appellant v. Frederick Reed, Appellee
On Appeal from the 96th District Court Tarrant County, Texas Trial Court No. 096-332054-22
Before Bassel, Womack, and Wallach, JJ.
MEMORANDUM OPINION
Dana Womack Justice
I. Introduction
After this court issued its original memorandum opinion, Appellant Area Metropolitan Ambulance Authority d/b/a MedStar Mobile Health (MedStar) filed a Motion for Rehearing. Although we hereby deny the Motion for Rehearing, we withdraw our March 9, 2023 memorandum opinion and judgment. We substitute this memorandum opinion for the original and issue a new judgment with today's date.
We also deny MedStar's Motion for En Banc Reconsideration.
MedStar filed this interlocutory appeal from the trial court's order denying its plea to the jurisdiction on Appellee Frederick Reed's personal injury claim arising from a driving accident involving one of MedStar's employees. MedStar argues that the trial court erred by denying its plea to the jurisdiction because (1) Reed did not properly plead a waiver of immunity from suit under the Texas Tort Claims Act (TTCA) and (2) the record demonstrates that MedStar's employee would not be personally liable to Reed under applicable Texas law. Because-as Reed concedes- he failed to allege a waiver of immunity in his petition, the trial court erred by denying MedStar's plea to the jurisdiction. However, because Reed has shown that there is a disputed material fact regarding the personal liability of MedStar's employee-and that therefore the defect is one of pleading sufficiency, not jurisdictional impossibility-Reed should be allowed the opportunity to amend his petition to cure the jurisdictional defect. Accordingly, we reverse the trial court's ruling and remand the case for further proceedings consistent with this memorandum opinion.
II. Background
This case involves a personal injury claim arising from a collision between a MedStar vehicle and Reed. One night in January 2021, Ronald Rodriguez, a MedStar mechanic, was test-driving a recently repaired MedStar vehicle when he collided with Reed, a pedestrian, in the middle of the roadway.
In February 2022, Reed sued Rodriguez and MedStar, alleging that he suffered bodily injuries from the collision. After specially excepting to Reed's petition on the ground that it failed to allege any valid ground for a waiver of MedStar's sovereign immunity from suit, MedStar filed a plea to the jurisdiction asserting that because Rodriguez would not be personally liable for Reed's injuries, MedStar's immunity from suit has not been waived. The trial court denied MedStar's plea, and this interlocutory appeal followed.
Reed asserted negligence and negligence per se causes of action against Rodriguez and negligent entrustment, negligent hiring/supervision, and respondeat superior causes of action against MedStar.
In April 2022, the trial court signed an order granting MedStar's motion to dismiss Rodriguez from the lawsuit pursuant to Section 101.106(e) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) ("If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.").
III. Discussion
A. Pleas to the Jurisdiction Generally: Standard of Review and Applicable Law
Unless the state consents to suit, sovereign immunity deprives a trial court of subject matter jurisdiction over lawsuits against the state or certain governmental units. Tex. Dep't of Parks &Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004).
Reed does not dispute that MedStar is a governmental unit that is entitled to sovereign immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3).
A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). A jurisdictional plea's purpose is to defeat a cause of action without regard to the asserted claims' merits. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea may challenge the pleadings, the existence of jurisdictional facts, or both. Alamo Heights ISD v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). The plea to the jurisdiction standard generally mirrors that of a traditional motion for summary judgment under Texas Rule of Civil Procedure 166a(c). Miranda, 133 S.W.3d at 228. Under this standard, the governmental unit must meet the summary judgment standard of proof by successfully asserting and supporting with evidence that the trial court lacks subject matter jurisdiction. Id. The burden then shifts to the plaintiff, who-when the facts underlying the merits and subject matter jurisdiction are intertwined-must show that there is a disputed material fact regarding the jurisdictional issue. Id. (citing Huckabee v. Time Warner Ent. Co., 19 S.W.3d 413, 420 (Tex. 2000)).
Whether the trial court has subject matter jurisdiction is a legal question that we review de novo. Id. at 226. We review a plea to the jurisdiction by considering the pleadings, the factual assertions, and all relevant evidence in the record. City of Houston v. Hous. Mun. Emps. Pension Sys., 549 S.W.3d 566, 575 (Tex. 2018). When reviewing a plea to the jurisdiction that incorporates evidence implicating the merits of the case, we must "take as true all evidence favorable to the nonmovant" and "indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Miranda, 133 S.W.3d at 228 (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)). If the evidence creates a fact question regarding jurisdiction, the trial court must deny the plea and leave its resolution to the factfinder. Id. at 227-28. But if the evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea as a matter of law. Id. at 228.
B. MedStar's Arguments
In its briefing, MedStar makes two primary arguments in support of its plea to the jurisdiction. First, MedStar argues that Reed's petition did not allege any valid basis for a waiver of MedStar's sovereign immunity from suit. Second, MedStar asserts that because Rodriguez would not be personally liable for Reed's injuries, MedStar's immunity from suit has not been waived. We will address each of these arguments in turn.
1. Pleading Sufficiency
The plaintiff has the burden to allege facts in his petition that affirmatively establish the trial court's subject matter jurisdiction. Archibeque v. N. Tex. State Hosp.- Wichita Falls Campus, 115 S.W.3d 154, 157 (Tex. App.-Fort Worth 2003, no pet.) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). "Since as early as 1847, the law in Texas has been that absent the state's consent to suit, a trial court lacks subject matter jurisdiction" over lawsuits against the state or its political subdivisions. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (collecting cases). Therefore, a "party suing [a] governmental entity must establish the state's consent, which may be alleged either by reference to a statute or to express legislative permission." Id.
The TTCA grants a limited waiver of governmental immunity for personal injury claims arising from a government employee's negligent operation or use of a motor vehicle. See Tex. Civ. Prac. &Rem. Code Ann. § 101.021. Specifically, the statute provides that
[a] governmental unit in the state is liable 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:
(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; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.Id.
Though Reed's claims appear to fall within the waiver of sovereign immunity provided by the TTCA, Reed's petition makes no reference to the statute. Indeed, Reed's petition does not even allude to MedStar's sovereign immunity, much less allege any grounds for a waiver thereof. Rather, the only basis for the trial court's jurisdiction provided in Reed's petition is that "the damages are within the jurisdictional limits of [the] [c]ourt."
Because Reed's petition fails to establish the state's consent to suit by referencing the TTCA, we must reverse the trial court's order denying MedStar's plea to the jurisdiction. See Jones, 8 S.W.3d at 638. However, the Texas Supreme Court has made clear that where, as here, "the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction," the plaintiff should be "afforded the opportunity to amend" his petition before the case is dismissed. Miranda, 133 S.W.3d at 226-27. Accordingly, unless MedStar can affirmatively negate the existence of jurisdictional facts, we must remand this case to the trial court for further proceedings rather than rendering a judgment of dismissal. See City of Fort Worth v. Rust, No. 02-20-00130-CV, 2020 WL 6165297, at *2 (Tex. App.-Fort Worth Oct. 22, 2020, no pet.) (mem. op.); see also Tex.R.App.P. 43.2, 43.3.
2. Jurisdictional Facts
In addition to challenging the sufficiency of Reed's pleadings, MedStar challenges the existence of jurisdictional facts. See Alamo Heights ISD, 544 S.W.3d at 770 ("A jurisdictional plea may challenge the pleadings, the existence of jurisdictional facts, or both."). Specifically, MedStar asserts that because the record, taken as a whole, demonstrates that Rodriguez would not be personally liable to Reed, MedStar's immunity has not been waived under the TTCA. See Tex. Civ. Prac. &Rem. Code Ann. § 101.021(1)(B); Tex. Dep't of Pub. Safety v. Rodriguez, 344 S.W.3d 483, 488 (Tex. App-Houston [1st Dist.] 2011, no pet.) ("Waiver of immunity under this section of the Texas Tort Claims Act . . . requires proof that 'the employee would be personally liable to the claimant according to Texas law ....'" (quoting Tex. Civ. Prac. &Rem. Code Ann. § 101.021(1)(B))).
MedStar posits three reasons that Rodriguez would not be personally liable to Reed. First, MedStar contends that Rodriguez is entitled to official immunity. Second, MedStar argues that Rodriguez was not negligent in his operation or use of the vehicle. Finally, MedStar maintains that Reed's claims are barred by his own proportionate responsibility. Because the record is insufficient to enable us to make any of these conclusions as a matter of law, all of these arguments lack merit.
a. Official Immunity
"A governmental employee is entitled to official immunity: (1) for the performance of discretionary duties; (2) within the scope of the employee's authority; (3) provided the employee acts in good faith." Univ. of Hous. v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). "Common law official immunity is based on the necessity of public officials to act in the public interest with confidence and without the hesitation that could arise from having their judgment continually questioned by extended litigation." Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex. 2004). If a government employee who committed allegedly wrongful acts is entitled to official immunity, the government branch for which he works is entitled to sovereign immunity. See DeWitt v. Harris Cnty., 904 S.W.2d 650, 654 (Tex. 1995); City of San Antonio v. Duncan, 936 S.W.2d 63, 65 (Tex. App.-San Antonio 1996, writ dism'd w.o.j.).
Official immunity is an affirmative defense. Wadewitz v. Montgomery, 951 S.W.2d 464, 465 (Tex. 1997); City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Therefore, it is the defendant's burden to establish all of the required elements. Chambers, 883 S.W.2d at 653. If it does, then the burden shifts to the plaintiff to rebut the evidence with proof that the official acted in bad faith. Rodriguez, 344 S.W.3d at 488-89. But if "the government official does not prove each element of official immunity, the burden never shifts to the plaintiff to come forward with controverting evidence." Id.
The first prong of the official immunity defense asks whether the employee was performing a discretionary duty. See Clark, 38 S.W.3d at 580. An action is considered discretionary if it involves personal deliberation, decision, and judgment. Chambers, 883 S.W.2d at 654; Ramos v. Tex. Dep't of Pub. Safety, 35 S.W.3d 723, 727 (Tex. App.-Houston [1st Dist.] 2000, pet. denied). In determining if an act is discretionary, the issue is whether an employee was performing a discretionary function, not whether he had the discretion to do an allegedly wrongful act while discharging that function or whether the employee's job description included discretionary duties. Chambers, 883 S.W.2d at 653; Ramos, 35 S.W.3d at 727. "Discretionary acts are those related to determining what the policy of the governmental unit will be, but do not extend to the carrying out of the specifics of particular policies or exercise of 'professional' or 'occupational' discretion." Garza v. Salvatierra, 846 S.W.2d 17, 22 (Tex. App.-San Antonio 1992, writ dism'd w.o.j.).
Thus, we must determine whether Rodriguez's act of test-driving a MedStar vehicle constituted a discretionary-or merely ministerial-act. See Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex. 1994); City of Dallas v. Brooks, 349 S.W.3d 219, 225 (Tex. App.- Dallas 2011, no pet.). While the operation of a vehicle can constitute a discretionary act in certain situations-for example, when a police officer is engaged in a highspeed chase, an investigation, or a traffic stop, see Brooks, 349 S.W.3d at 225- generally, non-emergency driving is a ministerial act that does not entitle a government employee who is involved in an accident to official immunity. See, e. g., City of Houston v. Nicolai, No. 01-20-00327-CV, 2022 WL 960650, at *9 (Tex. App.- Houston [1st Dist.] Mar. 31, 2022, no pet.) (mem. op.) ("Generally, non-emergency driving of a patrol car by a law enforcement officer while on official business is a ministerial act that does not entitle an officer, who is involved in an accident, to official immunity." (first citing Rivera v. City of Houston, No. 01-19-00629-CV, 2020 WL 7502054, at *3 (Tex. App.-Houston [1st Dist.] Dec. 22, 2020, no pet.) (mem. op.); then citing City of Houston v. Hatton, No. 01-11-01068-CV, 2012 WL 3528003, at *3 (Tex. App.-Houston [1st Dist.] Aug. 16, 2012, pet. denied) (mem. op.); then citing Brooks, 349 S.W.3d at 225; then citing City of Austin v. Albarran, No. 03-10-00328-CV, 2011 WL 2533751, at *3 (Tex. App.-Austin June 23, 2011, no pet.) (mem. op.); and then citing City of Wichita Falls v. Norman, 963 S.W.2d 211, 216-17 (Tex. App.-Fort Worth 1998, pet. dism'd w.o.j.))); Salvatierra, 846 S.W.2d at 22 (concluding that the act of driving a bus is a ministerial-not a discretionary-act because "[t]he implementation actions by a bus driver in driving the bus . . . do[] not involve governmental policy or judgment"). The basic rationale for this rule is that under normal circumstances, government employees-like other citizens-must obey traffic regulations and do not have discretion about whether or not to do so. See Nicolai, 2022 WL 960650, at *9 (citing Albarran, 2011 WL 2533751, at *3).
Here, Rodriguez, a mechanic, was not responding to an emergency at the time of the collision, nor does the record indicate any urgent circumstance. Rather, he was merely engaged in ordinary, non-emergency driving. Given these circumstances, we cannot conclude as a matter of law that his operation of the vehicle involved the "personal deliberation" or "exercise of professional expertise, decision, or judgment" required of a discretionary act. See Brooks, 349 S.W.3d at 225. Because, on this record, Rodriguez's test-driving of the MedStar vehicle was a merely ministerial act, he would not be entitled to official immunity. See Kassen, 887 S.W.2d at 9.
We recognize that a government employee's operation of a vehicle can be discretionary even if there is no emergency. See, e.g., Hulick v. City of Houston, No. 14-20-00424-CV, 2022 WL 288096, at *4 (Tex. App.-Houston [14th Dist.] Feb. 1, 2022, pet. denied) (mem. op.). But, unlike the present case, the cases holding nonemergency driving to be a discretionary act typically "involve[] accidents that occurred in circumstances fairly characterized as urgent." See id. (discussing cases).
MedStar argues that because its mechanics are not given a policy manual that controls how to fix a vehicle but, rather, are expected to rely on repair-industry standards and their own judgment in deciding how to make repairs-including deciding if, when, and how to test-drive a vehicle-Rodriguez's operation of the vehicle was a discretionary act. But this argument misses the mark because it fails to focus on the nature of the conduct that allegedly caused Reed's injury: Rodriguez's driving. See id. Even if we were to assume that Rodriguez's repair of the vehicle, including his decision regarding whether and when to test-drive it, involved sufficient "personal deliberation" and "professional expertise" to constitute a discretionary act, see Brooks, 349 S.W.3d at 225, his actual operation of the vehicle involved no such expertise or deliberation. As one of our sister courts has recognized, "limiting the focus of our inquiry to any decisions requiring some judgment prior to an accident would make it nearly impossible for a plaintiff to make a viable claim under the TTCA" and "would, 'in effect merge the discretionary function element of the official immunity defense into the third element of the defense, whether the employee was acting within the scope of his authority.'" Hulick, 2022 WL 288096, at *4 (quoting Woods v. Moody, 933 S.W.2d 306, 308 (Tex. App.-Houston [14th Dist.] 1996, no writ)).
b. Rodriguez's Negligence
MedStar contends that even if Rodriguez is not entitled to official immunity, the trial court still should have granted its plea to the jurisdiction because the record clearly shows that Rodriguez was not negligent as a matter of law. We disagree.
If, as here, "[a] jurisdictional challenge implicates the merits of the plaintiff's cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists." Miranda, 133 S.W.3d at 227. As noted above, in such a scenario, we must "take as true all evidence favorable to the nonmovant" and "indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Id. at 228 (citing Sci. Spectrum, Inc., 941 S.W.2d at 911). "If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder." Id. at 227-28.
To support its contention that Rodriguez was not negligent, MedStar relies on the dashcam footage that was recorded in the vehicle at the time of the accident. According to MedStar, the dashcam footage "blatantly contradict[s]" Reed's allegation that Rodriguez was driving negligently when the collision occurred and instead clearly demonstrates that Rodriguez was "reasonable and prudent" in his operation of the vehicle. However, the dashcam footage is not as conclusive as MedStar would have us believe. As Reed points out, the video shows Rodriguez looking out the driver's side window-rather than focusing on the road in front of him-a split second before the collision. Moreover, Rodriguez's right hand does not appear to be on the steering wheel for several seconds immediately preceding the accident.
Because the dashcam footage does not conclusively demonstrate that Rodriguez was driving in a "reasonable and prudent" manner at the time of the accident and because we must "indulge every reasonable inference and resolve any doubts in [Reed's] favor," we cannot conclude as a matter of law that Rodriguez was not negligent. Id. at 228. Rather, the evidence presents a fact question that should be resolved by the factfinder. See id. at 227-28.
While acknowledging the general rule that courts must indulge every reasonable inference and resolve any doubts in the nonmovant's favor when presented with a plea to the jurisdiction, MedStar, citing Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776 (2007), argues that we should not apply this general rule here because the dashcam footage "blatantly contradict[s]" Reed's version of events such that "no reasonable jury could believe it." However, because we reject MedStar's premise regarding the conclusiveness of the video evidence, we likewise conclude that Scott is inapplicable and see no reason to contravene the general rule in this case.
c. Reed's Proportionate Responsibility
Finally, MedStar argues that the record conclusively demonstrates that Reed's claim is barred by his own proportionate responsibility. Once again, we disagree. Even if we accept as true MedStar's assertion that Reed was negligent for failing to yield the right of way, this is not an automatic bar to recovery. See Tex. Civ. Prac. & Rem. Code Ann. §§ 33.001, 33.012(a). Rather, Reed's negligence claim is only barred if his proportionate responsibility exceeds fifty percent, see id. § 33.001, and on this record, we cannot make such a determination as a matter of law, see Miranda, 133 S.W.3d at 228. The only evidence to support MedStar's assertion that Reed's own negligence bars his recovery is the dashcam footage, which only shows Reed for a split second at the moment of impact. Thus, while the video shows that Reed was in the roadway, it reveals nothing about the circumstances leading to his presence there or whether he was or had been exercising due care in crossing the street. Moreover, as noted above, the dashcam footage shows Rodriguez looking out the driver's side window and driving without both hands on the steering wheel shortly before the collision. The record contains no affidavits or deposition testimony from Reed, Rodriguez, or any other witnesses that might shed light on the extent to which Reed's own negligence proximately caused his injuries. Thus, Reed's proportionate responsibility is a fact question that should be resolved by the factfinder. See id. at 227-28.
In its brief, MedStar actually uses the term "contributory negligence" instead of proportionate responsibility and seems to suggest that the old contributory negligence doctrine-in which any negligence by the plaintiff that contributed to his injury barred his recovery-applies to this case. However, the Texas Legislature eliminated this doctrine in 1973 by adopting article 2212a, which was subsequently Even if we accept as true MedStar's assertion that Reed was negligent for failing to yield the right of way, this is not an automatic bar to recovery. See Tex. Civ. Prac. & Rem. Code Ann. §§ 33.001, 33.012(a). Rather, Reed's negligence claim is only barred if his proportionate responsibility exceeds fifty percent, see id. § 33.001, and on this record, we cannot make such a determination as a matter of law, see Miranda, 133 S.W.3d at 228. The only evidence to support MedStar's assertion that Reed's own negligence bars his recovery is the dashcam footage, which only shows Reed for a split second at the moment of impact. Thus, while the video shows that Reed was in the roadway, it reveals nothing about the circumstances leading to his presence there or whether he was or had been exercising due care in crossing the street. Moreover, as noted above, the dashcam footage shows Rodriguez looking out the driver's side window and driving without both hands on the steering wheel shortly before the collision. The record contains no affidavits or deposition testimony from Reed, Rodriguez, or any other witnesses that might shed light on the extent to which Reed's replaced with the comparative responsibility framework in Chapter 33 of the Texas Civil Practice and Remedies Code. See Dugger v. Arredondo, 408 S.W.3d 825, 830 (Tex. 2013). In 1995, the Legislature modified Chapter 33 by replacing comparative responsibility with proportionate responsibility. Id. at 831. Chapter 33 applies to any cause of action based in tort, including negligence, products liability, or any other conduct that violates an applicable legal standard. See JCW Elecs., Inc. v. Garza, 257 S.W.3d 701, 704-05 (Tex. 2008); see also Tex. Civ. Prac. & Rem. Code Ann. § 33.002(a)(1). Under Chapter 33, while a plaintiff's recovery is reduced based on his proportionate responsibility, a plaintiff is barred from recovering damages only if his percentage of responsibility exceeds fifty percent. Tex. Civ. Prac. & Rem. Code Ann. §§ 33.001, 33.012(a).
IV. Conclusion
Because Reed failed to allege a waiver of immunity in his petition, the trial court erred by denying MedStar's plea to the jurisdiction. However, because Reed's petition does not affirmatively demonstrate incurable defects in jurisdiction and because MedStar has not affirmatively negated the existence of jurisdictional facts, the defect is one of pleading sufficiency, not jurisdictional impossibility. See id. at 226. Thus, Reed should be allowed the opportunity to amend his petition to cure the jurisdictional defect. See id. at 226-27. Accordingly, we reverse the trial court's order denying MedStar's plea and remand the case for further proceedings consistent with this memorandum opinion. See Tex.R.App.P. 43.2(d), 43.3(a); Rust, 2020 WL 6165297, at *5.