Opinion
NO. 14-21-00761-CV
08-29-2023
CITY OF HOUSTON, Appellant v. Maria Christina GOMEZ, Appellee
William Craft Hughes, for Appellant. Kevin A. Murray, Houston, for Appellee. Panel consists of Justices Zimmerer, Hassan, and Wilson.
On Appeal from the 333rd District Court, Harris County, Texas, Trial Court Cause No. 2013-59953
William Craft Hughes, for Appellant.
Kevin A. Murray, Houston, for Appellee.
Panel consists of Justices Zimmerer, Hassan, and Wilson.
OPINION
Jerry Zimmerer, Justice
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 reconsidered the appeal.
After reconsidering the appeal, the en banc court issued an En Banc Majority Opinion, in which the court reversed the trial court’s judgment and remanded the case to the trial court for further proceedings consistent with its opinion. See Gomez v. City of Houston, 587 S.W.3d 891, 894 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (en banc). The en banc majority concluded that the City did not conclusively establish the good faith of the officer involved in the collision, and that a material fact issue existed as to whether the officer acted recklessly. Id. at 894. In an en banc dissenting opinion joined by Justices Wise and Spain, Justice Jewell concluded that this court should have affirmed the trial court’s judgment. See id. at 903-10 (Jewell, J., dissenting).
On remand in the trial court the City filed a supplement to its first amended plea to the jurisdiction and motion to dismiss. In its supplemental plea, the City incorporated by reference its original plea and attached a supplemental affidavit of the City’s expert. The trial court denied the City’s plea to the jurisdiction and the City filed this interlocutory appeal. We conclude that the supplemental affidavit did not conclusively establish the good faith of the officer involved in the collision. In considering whether the emergency exception applies, we further conclude that a material fact issue still exists as to whether the officer acted recklessly. We therefore affirm the trial court’s denial of the City’s plea to the jurisdiction.
B ackground
Appellee Maria Christina Gomez was driving eastbound on Crosstimbers Road in Houston on a cold and rainy Christmas Eve. 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 aimed 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 via affidavit 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. Simmons explained that the decision to use emergency equipment must be communicated to the dispatcher. Simmons decided that the need to apprehend the robbery suspect outweighed any minimal risk of harm to others in driving to the scene as quickly as possible. Simmons decided to activate his emergency lights, but not the siren "because of moderate traffic." Simmons did not testify that he notified dispatch of the use of his emergency lights. Simmons stated he did not need to exceed the posted speed limit of 35 miles per hour to arrive safely and quickly at the robbery scene.
Simmons arrived at the robbery-in-progress scene and was instructed to assist in the border of a perimeter to move and apprehend the suspect. Simmons made a legal U-turn to drive to the designated location and his "overhead lights were still on[.]" As his patrol car approached the intersection, Simmons looked down to increase the volume of his police radio. He then observed that the traffic control light for the intersection had turned yellow. Seeing the yellow light, Simmons immediately applied his brakes before entering the intersection. Simmons’s patrol car slid on the wet pavement, slid into the intersection, and was hit by the front left of Gomez’s car. Simmons repeated, "My emergency lights and car headlights were on throughout this time." In Simmons’s deposition, he testified that he was turning up the volume on the radio, and when he looked up, he was startled by the yellow light. Simmons also admitted that he knew the light at that intersection was "a quick light," indicating that he knew it would not stay green for long.
Simmons completed a Police Officer’s Accident Report after the accident. In the accident report, also known as a "48 Hour Notice," Simmons repeated that "judging the circumstances, I elected to turn on my lights as an extra precaution."
The City also attached to its plea the affidavit of police officer Isaac Jefferson, who investigated the collision and prepared the investigation report. Jefferson noted in his affidavit that Simmons was responding to a robbery call when the collision occurred. In Jefferson’s affidavit, he stated that Simmons "decided to activate the emergency lights but not the siren of his HPD patrol vehicle despite the fact that standard response to Priority Two calls is to run silent[.]" Jefferson also stated that when Simmons made the U-turn before the accident, "[h]is overhead emergency lights were still on, as were his headlights." Jefferson opined that "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 Officer Simmons’[s] decisions and actions before the accident were justified and reasonable based on his perception of the facts at the time."
In responding to the City’s plea to the jurisdiction, Gomez stated that Simmons was driving without his emergency lights and sirens when he ran a red light and hit her vehicle. Gomez attached to her response Jefferson’s report filed after the accident.
Contrary to Jefferson’s affidavit, he stated in his accident 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 was at fault in the collision.
After Gomez filed suit against the City, the City filed a plea to the jurisdiction asserting that the trial court lacked jurisdiction over the claims because the City had not waived its governmental immunity. The City made two arguments: (1) the City asserted that Simmons was protected by official immunity, which preserved the City’s governmental immunity; and (2) the City argued 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. Gomez appealed the trial court’s dismissal.
This court, sitting en banc, concluded that the City’s evidence of good faith in support of its immunity argument assumed the truth of a disputed fact: "that Simmons was using his overhead emergency lights as he approached the Crosstimbers intersection." Gomez, 587 S.W.3d at 899. Because no evidence was presented that the standard for good faith was satisfied if Simmons did not use his car’s overhead emergency lights, we concluded the City did not demonstrate conclusively that Simmons acted in good faith. Id. We further concluded that the evidence raised a fact issue as to the application of the emergency exception to waiver of immunity because the evidence raised a fact issue as to whether Simmons acted recklessly. Id. at 902.
On remand, the City supplemented its plea to the jurisdiction, attaching Jefferson’s supplemental affidavit. In Jefferson’s supplemental affidavit, he stated, "it is my opinion that even if Officer Simmons had not activated his emergency overhead lights as he approached the intersection of Lockwood and Crosstimbers, a reasonably prudent police officer, under the same or similar circumstances, could have believed Simmons’s actions were justified based on the information that Officer Simmons possessed at the time." Jefferson further stated that "another reasonably prudent officer could have believed that the weather conditions made traveling with lights and sirens unnecessary because Officer Simmons was already engaging in a slower and more careful response."
Gomez filed a supplemental response to the City’s supplemental plea in which she objected to Jefferson’s supplemental affidavit as unreliable due to the contradiction of Simmons’s testimony. Gomez further asserted that Jefferson’s supplemental affidavit failed to address the reckless conduct recognized by this court in its decision that the emergency exception doctrine did not apply to Simmons’s conduct. The trial court denied the City’s supplemental plea to the jurisdiction and this appeal followed.
A nalysis
In two issues on appeal the City asserts (1) the City established that Simmons acted in good faith; and (2) Gomez failed to raise a genuine issue of material fact on Simmons’s good faith.
I. Standard of Review and Applicable Law
[1–6] We review a trial court’s ruling on a plea to the jurisdiction de novo. See Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). A defendant’s plea may challenge either the plaintiffs’ pleadings or the existence of jurisdictional facts. Id. When, as here, the governmental unit challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties. See City of Houston, v. Ranjel, 407 S.W.3d 880, 887 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Miranda, 133 S.W.3d at 228). If that evidence raises a fact issue as to jurisdiction, the governmental entity’s plea must be denied because the issue must be resolved by the trier of fact. Miranda, 133 S.W.3d at 227-28. If the relevant evidence is undisputed or fails to present a jurisdictional fact issue, however, the court should rule on the plea as a matter of law. Id. The standard of review for a plea to the jurisdiction based on evidence generally mirrors that of a motion for summary judgment. Quested v. City of Houston, 440 S.W.3d 275, 280 (Tex. App.—Houston [14th Dist.] 2014, no pet.). We therefore must credit evidence favoring the nonmovant and draw all reasonable inferences in the nonmovant’s favor. Id.
II. The City did not conclusively establish official immunity because there is a disputed fact issue whether Simmons was acting in good faith.
[7] 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, possible waiver of the City’s immunity from suit and liability is found in section 101.021 of the Texas Tort Claims Act (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 § 101.021(1).
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."
The City contends the evidence, augmented by Jefferson’s supplemental affidavit, 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 falls short because Jefferson’s supplemental affidavit, in contradiction to his original affidavit, relies on the disputed fact that Simmons believed use of emergency equipment was not warranted.
[8, 9] 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. [10–13] 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. 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)).
[14–17] 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.
[18–20] 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. 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. With these principles in mind we address the City’s supplemental evidence on remand.
[21] A motorist approaching an intersection 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 § 545.151(a)(2). Police officers are authorized to violate traffic laws in certain circumstances, but they may do so only when it is safe. Sec Tex. Transp. Code. § 546.001(2) (authorizing police officer to "proceed past a red or stop signal or stop sign, after slowing as necessary for safe operation.").
The en banc court held that the City’s evidence did not conclusively establish that Simmons acted in good faith because the officers’ opinions were reached "by assuming the truth of disputed facts." Gomez, 587 S.W.3d at 899.
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 originally 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, despite Jefferson’s earlier accident investigation reporting that Simmons was not using his overhead lights in response to the call.
Thus, the City’s evidence of good faith assumed 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.
The City still 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 Jefferson’s supplemental affidavit, even if Simmons decided not to use his car’s overhead emergency lights, "the moderate traffic minimized the need to alert other motorists of his presence, and because alerting the suspect of his presence would cause the suspect to evade apprehension." Jefferson mentioned these same reasons in his original affidavit as reasons Simmons was justified in using overhead lights without the siren. Jefferson’s supplemental affidavit fails to properly assess the needs/risk analysis in the event Simmons was not using his overhead lights. The supplemental affidavit merely states in a conclusory fashion that "another reasonably prudent officer could have believed that the weather conditions made traveling with lights and sirens unnecessary[.]" Cf. City of Houston v. Collins, 515 S.W.3d 467, 478 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (detailing evidence of needs/risks assessment, including supplemental affidavits from responding officers).
Because the City did not conclusively establish Simmons’s good faith, we hold the trial court did not err in denying the City’s supplemental plea to the jurisdiction.
III. The City did not conclusively establish official immunity because there is a disputed fact issue on whether the emergency exception applies.
[22] The en banc court held that because the evidence raised a material fact issue as to whether Simmons acted recklessly or with conscious indifference to the safety of others, the emergency exception to section 101.021’s waiver of immunity did not apply. Gomez, 587 S.W.3d at 902. On remand, the City admits it did not address this court’s holding that the emergency exception does not apply.
[23] Under Section 101.055 of the Act, the emergency exception does not apply if the action is taken with conscious indifference or reckless disregard for the safety of others. Tex. Civ. Prac. & Rem. Code § 101.055(2). 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); see also City of Houston v. Green, 672 S.W.3d 27, 29–30 (Tex. 2023). The en banc court cited the following evidence as raising an issue of material fact as to whether the emergency exception applies:
Simmons’s affidavit shows that he subjectively was aware of the risks created when a police officer responds to an emergency call for service. 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.
Gomez, 587 S.W.3d at 902–03 (internal footnote omitted).
The supplemental plea and Jefferson’s supplemental affidavit do not address this court’s determination on application of the emergency exception doctrine. Rather, the City asserts the supreme court’s recent holding in City of San Antonio v. Maspero, 640 S.W.3d 523 (Tex. 2022) supersedes this court’s holding. The City contends that under the analysis set forth in Maspero, there is no genuine issue of material fact because it is undisputed that Simmons engaged in some level of risk assessment precluding a finding of recklessness. In Maspero, the supreme court held that the plaintiffs in that case did not meet their burden negating section 101.055’s applicability. Id. at 529–30. The court’s decision was based on the facts in that case and does not affect this court’s holding based on the facts in today’s case.
[24] We held in an en banc opinion that Gomez met her burden to raise a fact issue on the application of the emergency exception to waiver of governmental immunity. By the City’s own admission, there has been no other evidence produced on the issue of recklessness. While recklessness is immaterial when determining whether an officer acted in good faith, Memorial Villages Police Dept. v. Gustafson, No. 01-10-00973-CV, 2011 WL 3612309, at *6 (Tex. App.—Houston [1st Dist.] Aug. 18, 2011, no pet.) (mem. op.), it is part of the statutory analysis when determining whether the emergency exception applies. See Maspero, 640 S.W.3d at 529.
[25] The original decision of this court is law of the case and is ordinarily binding absent a showing that the original decision was clearly erroneous. KHOU-TV, Inc. v. Status Lounge Inc., 639 S.W.3d 752, 759 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (citing Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003)). Because no further evidence was submitted on remand to refute this court’s holding that a material issue of fact exists as to whether Simmons acted recklessly or with conscious indifference to the safety of others, we decline to reconsider this issue.
C onclusion
We overrule the City’s issues on appeal and affirm the trial court’s judgment denying the plea to the jurisdiction.
(Wilson, J., dissenting).
DISSENTING OPINION
Randy Wilson, Justice
The majority errs in affirming the trial court’s denial of the City’s amended plea to the jurisdiction for two reasons. First, the majority erroneously concludes the City failed to conclusively prove that Officer Simmons was performing his duties in good faith because the city Officer Jefferson did not assess properly the needs/risk analysis in his affidavit. Second, the majority erroneously concludes that the emergency exception to the waiver of immunity in the Texas Tort Claims Act does not apply because an earlier en banc opinion found a fact issue as to whether Simmons acted with reckless disregard for the safety of others. The majority is wrong on both counts.
The evidence conclusively establishes that Officer Simmons acted in good faith.
The majority opinion correctly states the law on what the City must show to be immune from suit and liability. The problem lies with the majority’s application of the law. The City contends the evidence conclusively establishes that Officer Simmons responded to the robbery call in good faith and is protected from liability to Gomez by official immunity. If so, Simmons would not be personally liable to Gomez, and the City would retain its governmental immunity. See City of San Antonio v. Riojas, 640 S.W.3d 534, 537 (Tex. 2022); DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995). 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. City of Pasadena v. Belle, 297 S.W.3d 525, 530 (Tex. App.—Houston [14th Dist.] 2009, no pet.). It is undisputed that the lawsuit arises from Simmons’s performance of his discretionary duties while acting in the scope of his authority. The only element in dispute is whether Simmons acted in good faith.
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 v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997). 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 v. Tennell, 92 S.W.3d 457, 467 (Tex. 2002). 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.
Boiled to its essence, the majority’s analysis consists of a single paragraph where the majority quotes one sentence of Jefferson’s affidavit and determines that Jefferson’s opinion is conclusory. This superficial conclusion does not withstand scrutiny. The City submitted the affidavit of Officer Isaac Jefferson who is certified and licensed as a Peace Officer through the Texas Commission on Law Enforcement Officer Standards and Education. Jefferson has been employed as an HPD police officer for 11 years; he was promoted to Sergeant in 2015. Jefferson was assigned to the HPD Vehicular Crimes Unit for approximately 6.5 years. Jefferson’s duties while assigned to the Vehicular Crimes Unit included responding to regular calls for major and minor auto accidents, and fatalities.
Jefferson states that after the collision between Simmons’s patrol vehicle and Gomez’s vehicle, Jefferson arrived on the scene to investigate. As a part of his investigation, Jefferson spoke to both Gomez and to Simmons regarding the facts and circumstances of the collision. According to Jefferson, he did not cite Simmons for violation of any traffic laws as a result of the collision. After the collision, Jefferson completed a Texas Peace Officer’s Crash Report, which according to Jefferson is standard protocol. In that report, Officer Simmons indicated that he was responding to the Priority Two call of a robbery in progress, but that he had turned his emergency lights on in the course of doing so. Jefferson contends in his affidavit that the standard response to Priority Two calls is to run silent without emergency lights and siren.
Jefferson states that he has reviewed the decisions and actions of Simmons while driving in response to the Priority Two dispatch report of an armed robbery in progress and concluded that they were both justified and reasonable under the conditions and circumstances. According to Jefferson, Simmons quickly and properly considered both the need to quickly reach the incident scene and the risk of harm to other drivers and pedestrians from his driving, and Simmons decided that any risk of harm to other drivers and pedestrians from his driving was minimal. In his first affidavit, Jefferson stated that Simmons activated his patrol vehicle’s emergency overhead lights while responding. Jefferson concluded that Simmons properly and reasonably decided that the need to quickly reach the scene of the robbery and then to assist in the pursuit of the suspect outweighed any minimal risk of harm to others from his driving and from proceeding through the intersection.
In Jefferson’s opinion, another reasonably prudent law enforcement officer, including Jefferson, 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 Simmons’s decisions and actions before the accident were justified and reasonable based on his perception of the facts at the time. In addition, Jefferson said that Simmons did not know or believe that his driving to reach the scene posed a high degree of risk of serious injury to others. Further- more, according to Jefferson, Simmons has indicated that there is no way he did not care about the result of any risk of injury to others, and Simmons believed that any risk of injury to others was minimal. Jefferson said that Simmons took precautions to avoid any such risk by continuing to watch for other drivers and pedestrians while en route to the scene and activating his vehicle’s emergency overhead lights.
On remand, Jefferson filed a supplemental affidavit that incorporated by reference the statements in his first affidavit with the exception of his statements as to his current position and experience, which have changed since the date of the first affidavit. In 2018, Jefferson became a Master Peace Officer, and at the time of his supplemental affidavit, Jefferson had been employed as an HPD police officer for more than 14 years. Jefferson was promoted to Lieutenant in November of 2020 and was then re-assigned to the Northeast Division.
In addition to the opinions stated in his first affidavit, it is Jefferson’s opinion that even if Simmons had not activated his emergency overhead lights as he approached the intersection of Lockwood and Crosstimbers, a reasonably prudent police officer, under the same or similar circumstances, could have believed Simmons’s actions were justified based on the information that Officer Simmons possessed at the time. Jefferson says he has reached this conclusion based upon his training, education and experience as a Texas Peace Officer, a Sergeant with HPD, and his 6.5 years of experience with the HPD Vehicular Crimes unit, during which he investigated hundreds of motor vehicle collisions involving police department vehicles, including dozens of collisions that resulted from an officer who was responding to a Priority Two call for service. Additionally, to the extent Officer Simmons decided not to activate his overhead emergency lights, Jefferson opines that another reasonably prudent officer could have believed this decision to be justified because the moderate traffic minimized the need to alert other motorists of his presence, and because alerting the suspect of his presence would cause the suspect to evade apprehension. Moreover, Jefferson states that Simmons was already moderating the speed of his response and staying within the posted speed limit, thus reducing the need for him to activate any emergency equipment. Jefferson says that another reasonably prudent officer could have believed that the weather conditions made traveling with lights and sirens unnecessary because Simmons was already engaging in a slower and more careful response. Jefferson contends that even absent emergency overhead lights, Simmons’s 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.
Far from being conclusory, Jefferson’s supplemental affidavit did precisely what the law requires—it balanced the needs and risks of Officer Simmons entering the intersection without his emergency lights activated. The majority justifies its cursory analysis by citing City of Houston v. Collins, 515 S.W.3d 467, 478 (Tex. App.—Houston [14th Dist.] 2017, no pet.) and stating that it detailed "evidence of needs/risks assessment, including supplemental affidavits from responding officers." Officer Jefferson supplemental affidavit does precisely what was done in the Collins case.
The City conclusively established Simmons’s good faith. Because the City met its 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 Texas Dept. of Public Safety v. Bonilla, 481 S.W.3d 640, 643 (Tex. 2015) (per curiam). 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 response to the City’s amended plea to the jurisdiction following remand, Gomez incorporated by reference the evidence that she had submitted in response to the City’s prior plea to the jurisdiction, which consisted of (1) Gomez’s Second Request for Production of Documents and Tangible Things, (2) a copy of the Texas Peace Officer’s Crash Report for the accident in question, (3) an affidavit of Gomez, (4) excerpts from the transcript of Simmons’s deposition, (5) excerpts from the transcript of the deposition of Sergeant Connie Park, and (6) excerpts from the transcript of Jefferson’s deposition. In response to the amended plea to the jurisdiction, Gomez did not offer evidence that no reasonable officer in Simmons’s position could have believed that the facts were such that they justified Simmons’s conduct. See Collins, 515 S.W.3d at 473–80; William Marsh Rice Univ. v. Refaey, 495 S.W.3d 531, 538–39 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). Therefore, the trial court erred in denying the amended plea to the jurisdiction. See Collins, 515 S.W.3d at 473–80.
Gomez argues that Jefferson’s affidavit contains a conflict and raises a fact issue because part of the affidavit is based on the premise that Simmons activated the overhead emergency lights on his vehicle and part of the affidavit is based on the premise that Simmons did not do so. Gomez asserts that because Jefferson relies on the disputed fact as to whether Simmons activated the emergency lights on his vehicle, Jefferson’s affidavit cannot support a conclusive showing of good faith. As the en banc court stated in the first appeal in this case, 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," but an opinion that a police officer acted in good faith may conclusively establish good faith if the person offering the opinion concludes that the police officer acted in good faith whether or not the disputed fact is true. See Gomez v. City of Houston, 587 S.W.3d 891, 898–901 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (en banc) ("Gomez I"). Jefferson opined that Simmons acted in good faith if he activated the overhead emergency lights on his vehicle and also if he did not do so. Addressing two alternate fact patterns does not raise a genuine fact issue that prevents the City from conclusively proving good faith. See id. Gomez asserts that Jefferson’s affidavit lacks credibility because Jefferson stated in his report on the accident that Simmons did not activate the overhead emergency lights. But making a statement as a fact witness that Simmons did not activate the overhead emergency lights on his vehicle does not prevent Jefferson from giving an expert opinion addressing Simmons’s good faith if he activated the overhead emergency lights and if he did not. See id. The trial court erred in denying the amended plea to the jurisdiction.
Under recent Supreme Court precedent, the emergency exception applies.
The emergency exception to section 101.021’s waiver of the City’s governmental immunity applies unless the evidence raises a fact issue as to whether Officer Simmons acted "with conscious indifference or reckless disregard for the safety of others." Tex. Civ. Prac. & Rem. Code § 101.055(2) (West, Westlaw through 2023 R.S.); City of San Antonio v. Maspero, 640 S.W.3d 523, 529–31 (Tex. 2022). The City argues that the en banc opinion in Gomez I, in which this court found a fact issue as to reckless disregard has been superseded by recent precedent from the Supreme Court of Texas. Therefore, the City asserts that the law-of-the-case doctrine does not apply and that because Gomez failed to submit evidence raising a fact issue as to the applicability of the emergency exception, the trial court erred in denying the City’s amended plea to the jurisdiction.
The majority incorrectly concludes that this court is bound by or may decline to reconsider the Gomez I court’s holding that the evidence raised a fact issue as to whether Officer Simmons acted with reckless disregard for the safety of others. See Gomez, 587 S.W.3d at 902–03. Because this part of Gomez I conflicts with and has been superseded by the Supreme Court of Texas opinion in City of Houston v. Green, the law-of-the-case doctrine does not apply, and vertical stare decisis requires this court to conclude that the evidence does not raise a fact issue on this point and that the emergency exception applies. See Winfrey v. Rogers, 901 F.3d 483, 491 (5th Cir. 2018) (stating that "the law-of-the-case doctrine does not apply when … controlling authority has since made a contrary decision of the law applicable to such cases"); City of Houston v. Green, 672 S.W.3d 27, 28–30 (Tex. 2023) (holding that the evidence did not raise a fact issue as to whether a police officer acted with reckless disregard for the safety of others in a case with facts substantially similar to the facts in today’s case); Mitschke v. Borromeo, 645 S.W.3d 251, 256 (Tex. 2022) (concluding that under the doctrine of horizontal stare decisis a court of appeals must follow a materially indistinguishable prior decision of the court of appeals unless a higher authority, such as a decision of the Supreme Court of Texas, has superseded the prior court of appeals decision); Wichman v. Kelsey-Seybold Medical Group, PLLC, No. 14-18-00641-CV, 2020 WL 4359734, at *4 (Tex. App.—Houston [14th Dist.] Jul. 30, 2020, no pet.) (stating that "in deciding [a civil appeal] we must follow the precedent of the Supreme Court of Texas") (mem. op.); City of Dallas v. Jones, 331 S.W.3d 781, 785 (Tex. App.—Dallas 2010, pet. dism’d) (concluding that a court of appeals is not bound by its prior opinion in the same case if there has been "a change in the controlling law" between the time of the first and second opinions).
When this court decided Gomez I no Supreme Court of Texas case had addressed this reckless disregard issue in a case involving facts similar to those in today’s case, and thus this court did not rely on any such case. See Gomez, 587 S.W.3d at 902–03. In Gomez I, the Supreme Court of Texas denied the City of Houston’s petition for review, but that action does not give any indication as to whether the high court thought that the evidence raised a fact issue as to whether Officer Simmons acted with conscious indifference or reckless disregard for the safety of others. See Loram Maintenance of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006) (stating that the denial of petition for review by the Supreme Court of Texas does not give any indication as to the high court’s view regarding the merits of the issues decided by the courts of appeals).
More than three years after this court decided Gomez I, the Supreme Court of Texas held that the evidence did not raise a fact issue as to whether a police officer acted with reckless disregard for the safety of others in a case with facts strikingly similar to today’s case. See Green, 672 S.W.3d at 28–30. There, Samuel Omesa, a City of Houston police officer, received a "priority two" service call regarding a suspect armed with a handgun. See id. at 28–29. Officer Omesa claimed that he activated his overhead lights and "intermittently" activated his siren while traveling northbound on Hillcroft Avenue at an average speed of 35 to 40 miles per hour. See id. Omesa testified that as he approached the intersection of Richmond and Hillcroft, he came to a complete stop before proceeding through a red light traveling 10 to 20 miles per hour. See id.
Omesa collided with a vehicle driven by Crystal Green. See id. Omesa stated that even though he forcefully applied his brakes, he was unable to avoid the collision. See id. Although Omesa was unable to remember if his siren was activated as he went through the intersection, he said he was certain that the emergency lights on his vehicle were activated. See id. Green testified that Omesa was "traveling at a high rate of speed" and that Omesa’s siren was not on. See id.
Green sued the City of Houston. See id. The trial court denied the City’s summary-judgment motion seeking dismissal based on the City’s governmental immunity and arguing that the emergency exception applies. See id. On appeal in this court Green argued that the Gomez I opinion was on point, and the City of Houston argued that Gomez I was distinguishable. See City of Houston v. Green, No. 14-20-00190-CV, 2022 WL 97334, at *9 (Tex. App.—Houston [14th Dist.] Jan. 11, 2022), rev’d, 672 S.W.3d 27, 28–30 (Tex. 2023). This court agreed with Green that Gomez I was on point, concluded that the evidence raised a fact issue as to whether Omesa was driving with reckless disregard for the safety of others, and found that the City did not conclusively prove Omesa acted in good faith. See id. at *6–9. The Supreme Court of Texas reversed this court’s judgment, concluding that this court had erred in determining that the evidence raised a fact issue as to whether Omesa was driving with reckless disregard for the safety of others. See Green, 672 S.W.3d at 28–30.
In Green, the Supreme Court reiterated its conclusions in its recent decision in Maspero: reckless disregard involves more than a momentary lapse of judgment and requires a willful or wanton disregard for the safety of other’s, exhibiting "conscious indifference" while having "subjective awareness of an extreme risk." Id. at 30; Maspero, 640 S.W.3d at 531. The Green court emphasized that establishing a failure to exercise due care does not establish a reckless disregard for the safety of others. See Green, 672 S.W.3d at 31. Despite the fact that there was a disputed fact question as to whether Omesa was traveling at high rate of speed and whether he had activated his siren, the Supreme Court held there was no evidence he acted with reckless disregard for the safety of others, and thus the emergency exception applied. See id. The Supreme Court reversed this court and rendered judgment dismissing Green’s claims against the City based on governmental immunity. See id.
In Gomez I, this court reasoned that there was sufficient evidence to conclude that Officer Simmons acted recklessly because he looked down from the road as he approached the intersection, failed to operate his siren, did not apply his brakes in time to avoid a collision with Gomez’s car, and there was a disputed fact question of whether he was using his emergency lights. See Gomez, 587 S.W.3d at 902–03. While these facts might be sufficient for a jury to conclude that Officer Simmons was simply negligent, they come nowhere close to the standard that the Supreme Court subsequently articulated in Maspero and Green, i.e., reckless disregard involves more than a momentary judgment lapse, requiring a willful or wanton disregard for the safety of others, and exhibition of conscious indifference while having subjective awareness of an extreme risk. See Green, 672 S.W.3d at 29–30; Maspero, 640 S.W.3d at 531. The part of Gomez I in which this court concluded there was a fact issue as to reckless disregard conflicts with and has been superseded by the recent precedent from the Supreme Court in Maspero and Green. See Green, 672 S.W.3d at 29–30; Maspero, 640 S.W.3d at 531.
The majority erroneously concludes that it may adhere to this part of Gomez I under the law-of-the-case doctrine. But vertical stare decisis trumps law of the case and horizontal stare decisis. See Winfrey, 901 F.3d at 491; Mitschke, 645 S.W.3d at 256; Crotts v. Cole, 480 S.W.3d 99, 103, n.3 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Jones, 331 S.W.3d at 785. If this court’s opinion in a prior appeal in the same case conflicts with and has been superseded by a subsequent Supreme Court opinion, an exception to the law-of-the-case and horizontal-stare-decisis doctrines applies, and this court is duty-bound to apply the recent high court precedent under the doctrine of vertical stare decisis. See Winfrey, 901 F.3d at 491; Mitschke, 645 S.W.3d at 256; Wichman, 2020 WL 4359734, at *4; Crotts, 480 S.W.3d at 103, n.3; Jones, 331 S.W.3d at 785. The majority errs in relying on the law-of-the-case doctrine as a justification for violating the doctrine of vertical stare decisis. See Winfrey, 901 F.3d at 491; Mitschke, 645 S.W.3d at 256; Wichman, 2020 WL 4359734, at *4; Crotts, 480 S.W.3d at 103, n.3; Jones, 331 S.W.3d at 785. The majority should follow the recent precedent from the Supreme Court of Texas in Maspero and Green, determine that the evidence does not raise a fact issue as to reckless disregard, reverse the trial court’s order denying the City’s amended plea to the jurisdiction, and render judgment dismissing all of Gomez’s claims against the City for lack of subject-matter jurisdiction. Because the majority does not do so, I respectfully dissent.