Opinion
No. 04-20-00402-CV
12-16-2020
CITY OF LAREDO, Appellant v. Brenda SANCHEZ, individually and as next friend of R.S., minor, Appellee
MEMORANDUM OPINION
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2019CVA001672D3
Honorable Rebecca Ramirez Palomo, Judge Presiding Opinion by: Liza A. Rodriguez, Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Liza A. Rodriguez, Justice AFFIRMED
This interlocutory appeal arises from a personal injury lawsuit filed by Brenda Sanchez, individually and as next friend of her minor son, R.S. In response to the lawsuit, the City of Laredo filed a plea to the jurisdiction, arguing that governmental immunity under the Texas Tort Claims Act ("TTCA") had not been waived because the emergency exception to the TTCA applied. After the trial court denied its plea to the jurisdiction, the City filed this appeal, arguing the trial court lacks subject-matter jurisdiction over Sanchez's lawsuit because sovereign immunity has not been waived under the TTCA. We affirm the trial court's order denying the City's plea to the jurisdiction.
BACKGROUND
In her petition, Sanchez alleged that she and her minor son suffered personal injuries as the result of a motor-vehicle accident on August 8, 2018, which was caused by the City's employee, Jason Sliva, an ambulance driver. Sanchez alleged that Sliva acted negligently by (1) failing to maintain a proper lookout; (2) failing to take proper evasive action to avoid collision; (3) failing to be attentive; and (4) failing to control vehicular speed under the circumstances. Sanchez further alleged that Sliva was acting within the course and scope of his employment and that the City was liable for his actions under the theory of respondeat superior. Sanchez also alleged that the City was negligent in failing to properly train its employees so as to avoid an incident like the one made the basis of Sanchez's claims.
In support of its plea to the jurisdiction, the City attached the affidavit of Sliva, the ambulance driver. In his affidavit, Sliva affirmed the following facts:
The City also attached an affidavit by the City's counsel and unanswered requests for admissions. In Sanchez's response, she noted that the City was relying on Requests for Admissions 10, 11, 12, and 13 as deemed admissions to support its plea. Sanchez contended that these requests, if admitted, would establish legal, not factual, issues. Thus, Sanchez moved to strike the deemed admissions, arguing they were improper and were not competent evidence. The trial court agreed and struck the deemed admissions. On appeal, the City makes no argument regarding the trial court striking the deemed admissions.
1. He was employed by the City of Laredo as a firefighter/paramedic and was driving an ambulance owned by the City on August 8, 2018.
2. On August 8, 2018, he "responded to an emergency call made by Brenda Sanchez requesting emergency services and transport for her eight-year-old son, who was suffering from high blood pressure and palpitations."
3. He transported Sanchez, her son, and another minor to Doctors Hospital of Laredo. Sanchez's eight-year-old son "was in the treatment area secured on a gurney." The "other minor was seated and secured by a seat belt in the captain's chair in the treatment area."
4. He "was turning into the driveway to the emergency room entrance ramp when [he] saw a yellow chain approximately four feet above the ground blocking the driveway to the emergency room entrance."
5. He "was unaware of the existence of the chain and could not see it until [he] turned into the driveway."
6. He "had to stop the ambulance suddenly to avoid striking the chain [that] was blocking the driveway to the emergency room entrance."
In responding to the City's plea to the jurisdiction, Sanchez attached to her response affidavits by Jose Sandoval and Gilbert Garza, along with her own affidavit. In his affidavit, Jose Sandoval affirmed that on August 8, 2018, his "partner, Brenda Sanchez, called [him] at work" and told him that she "was having an ambulance take her son, B.S., minor, to Doctors Hospital of Laredo as a precaution due to a panic attack he suffered." "Brenda and her other son, R.S., minor, were passengers in the ambulance." According to the affidavit, Sandoval "arrived at the hospital before Brenda." "While waiting outside of the hospital, [Sandoval] observed an ambulance approach the hospital without its sirens or emergency lights activated when an accident occurred." Sandoval "saw Brenda get out of this ambulance after the accident occurred."
Gilbert Garza's affidavit stated that a true and correct copy of the Laredo Fire Department Official Report by Arnulfo Banda, Jr. (Exhibit C-1) and a true and correct copy of the Laredo Fire Department Official Report by Jason C. Sliva (Exhibit C-2), both of which were produced by the City in response to Sanchez's discovery request, were attached to his affidavit. The report by Banda, a firefighter/paramedic, stated that Banda's ambulance "was transporting an eight-year-old male patient to Doctors Hospital of Laredo for palpitations and high blood pressure." Banda "was sitting on the bench seat with the patient's mother sitting to [his] right and her other son sitting in the captain's chair with the seatbelt on." He stated that before "transporting to the hospital, [he] made sure the child in the captain's chair ha[d] his seatbelt on." "After turning into Doctors Hospital from San Isidro Parkway, the ambulance stopped suddenly just before getting close to the ER entrance." "When the ambulance stopped, the patient's mother fell to her right side from the bench seat." He "immediately got up to make sure everyone in the back was ok." "The patient's mother stated she had hand and head pain from the fall." He "asked the mother if she wanted to be checked by the ambulance crew." "Patient's mother said she would get checked at the ER instead." According to Banda's report, "Paramedic Sliva stated that he had to stop in order to avoid the small, thin, plastic chain that blocked the driveway used by the ambulance to access the ambulance ER entrance." "Patient was taken into the ER and the patient's mother went inside with patient."
Sliva's report stated that he was driving the ambulance and transporting an eight-year-old patient to the hospital. The eight-year-old "was strapped in to the stretcher, the patient's brother was sitting in the captain's chair with his seatbelt on." "The patient's mother was seated on the bench seat closest to the side door of the ambulance and FF [firefighter] Banda was seated on the bench seat closest to the rear loading doors of the ambulance." Sliva "approached the turn in to Doctors Hospital from San Isidro traveling east to west." When Sliva "turned into the driveway leading from San Isidro to the ER entrance ramp, [he] was traveling at approximately 15 MPH." "Suddenly [he] noticed that there was a yellow chain strung out across the road approximately 4 feet off of the ground." He "immediately had to brake very rapidly to avoid hitting the chain." He "was able to bring the ambulance to a halt approximately 10 feet short of hitting the chain." "When the ambulance came to an abrupt stop, [he] heard a crashing noise in the treatment area of the ambulance." He "looked back to see what had happened and [he] saw FF Banda attending to the patient's mother, who could be seen in the step-up area of the side door." He "slowly backed up the ambulance and redirected the ambulance to the walk-in entrance of the ER." When he "placed the ambulance in park, [he] rushed around to the side door to check on the patient's mother." "The patient's mother appeared to be in pain, and both FF Banda and [he] offered to assess her." "She stated that she just wanted to get her son into the ER." He and Banda "down loaded the patient and proceeded to transfer patient care to the ED [Emergency Department]." Once he and Banda "had transferred care of the initial patient, [he] again asked the mother if she would like [him and Banda] to access her and again she declined."
Sanchez's affidavit affirmed that on August 8, 2018, Sanchez called for medical assistance because her son, B.S., "was having a panic attack." Sanchez's affidavit stated that the "ambulance had its siren activated as it was arriving at [her] apartment complex." According to Sanchez, she could hear the siren but the "paramedics could not find [her] apartment so [she] went to find the ambulance with B.S." "The sirens or lights were not activated when [she] found the ambulance." "When [she] found the ambulance, there were two paramedics and they treated B.S. at the ambulance." "One of the paramedics asked if [Sanchez] wanted B.S. transported and check at the hospital as a precaution." Sanchez responded that she did. "At this point, no further medical treatment was performed on B.S. during the ride to the hospital." "One paramedic was driving the ambulance and the other was sitting next to [Sanchez]." Sanchez's other minor son, R.S., was also a passenger. Sanchez affirmed in the affidavit that she "remember[s] that the ambulance did not have its sirens on before [they] got to the hospital parking lot."
STANDARD OF REVIEW
Whether the trial court has subject-matter jurisdiction over Sanchez's claims is a question of law that we review de novo. City of San Antonio v. Smith, 562 S.W.3d 75, 79 (Tex. App.—San Antonio 2018, pet. denied) (citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). "Our ultimate inquiry is whether the particular facts presented affirmatively demonstrate a claim within the trial court's subject-matter jurisdiction." Id.
GOVERNMENTAL IMMUNITY
"Under the common-law doctrine of sovereign immunity, the sovereign cannot be sued without its consent." Id. at 80 (citing City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011). "Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the State, including counties, cities, and school districts." Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). "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." Smith, 562 S.W.3d at 80 (citing Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)). "Absent the State's consent to suit, a trial court lacks subject-matter jurisdiction." Id.
Section 101.021 of the TTCA provides a limited waiver of immunity under certain circumstances. See TEX. CIV. PRAC. & REM. CODE § 101.021. In this case, Sanchez argues immunity has been waived pursuant to section 101.021(1), which provides the following:
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:
Id. § 101.021(1) (emphasis added). Section 101.0215 of the TTCA further provides for liability of a municipality:(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 . . . .
(a) A municipality is liable under this chapter for damages arising from its governmental functions, which are those functions that are enjoined on a municipality by law and are given it by the state as part of the state's sovereignty, to be exercised by the municipality in the interest of the general public, including but not limited to: . . . (18) operation of emergency ambulance service . . . .Id. § 101.0215(a)(18) (emphasis added).
PLEA TO THE JURISDICTION
"Because immunity from suit defeats a trial court's subject-matter jurisdiction, it may be raised in a plea to the jurisdiction." Smith, 562 S.W.3d at 81 (citing Miranda, 133 S.W.3d at 225-26). "A plaintiff bears the burden of affirmatively demonstrating a trial court's jurisdiction." Id. (citing Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012)). "[A] court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)).
"When a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court considers the relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised." Smith, 562 S.W.3d at 81. "Such cases fall into two categories: (1) those in which the jurisdictional issue or facts do not substantially implicate the merits of the plaintiff's case, but rather are, for the most part, separate and distinct from the merits; and (2) those in which the jurisdictional issue or facts do implicate the merits of the plaintiff's case." Id. (quoting Univ. of Tex. v. Poindexter, 306 S.W.3d 798, 806 (Tex. App.—Austin 2009, no pet.)). "Courts treat these two categories of cases in markedly different ways." Id. (quoting Poindexter, 306 S.W.3d at 806). "A jurisdictional issue implicates the merits of a case when the determination of many, if not most, of the challenged jurisdictional facts will also determine whether the plaintiff is entitled to relief on the merits." Id.
"The first category, cases in which the jurisdictional issues or facts do not implicate the merits of the plaintiff's case, contains two types of cases: (1) cases in which the relevant jurisdictional facts are disputed, and (2) cases in which the relevant jurisdictional facts are undisputed." Id. (emphasis in original). "When the relevant jurisdictional facts are disputed, the trial court—not the jury—makes the necessary fact findings to resolve the jurisdictional issue." Id. That is, "[w]hen a jurisdictional issue is not intertwined with the merits of the claims . . . disputed fact issues are resolved by the court, not the jury." Vernco Constr., Inc. v. Nelson, 460 S.W.3d 145, 149 (Tex. 2015). "However, when the relevant jurisdictional facts are undisputed, the trial court makes the jurisdictional determination as a matter of law based solely on those undisputed jurisdictional facts." Id.
"As to the second category, cases in which the jurisdictional issue or facts do implicate the merits of the plaintiff's case, the trial court does not act as a factfinder." Id. (emphasis in original). "Instead, the defendant is put to a burden very similar to that of a summary judgment movant." Id. "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 factfinder at trial." Id. "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." Id. at 81-82. "As with a summary judgment, the trial court's determination in such a case is purely a legal one." Id. at 82. "Furthermore, the appellate court reviews the trial court's determination de novo, indulging every reasonable inference and resolving any doubts in the [respondent]'s favor." Id.
The relevant jurisdictional facts in this case do implicate the merits of Sanchez's claims and fall within the second category. See id. The facts as stated in the affidavits are not disputed. They show that Sanchez and her sons were being transported in an ambulance owned by the City and driven by a City employee when the accident giving rise to their personal injuries occurred. Thus, Sanchez met her burden of showing a waiver of governmental immunity under the TTCA unless an exception applies.
EMERGENCY EXCEPTION
The City argues that the trial court erred in denying its plea to the jurisdiction because, even if immunity was waived under the TTCA, the undisputed evidence established that the "emergency exception" to any waiver of immunity barred Sanchez's claims. Sanchez responds that the undisputed evidence does not give rise to application of the emergency exception, and even if it does, she presented sufficient evidence to raise a fact issue.
Although the TTCA waives immunity from suit under certain circumstances, it also includes a subchapter entitled "Exceptions and Exclusions," which lists circumstances in which its waiver provisions do not apply. City of San Antonio v. Hartman, 201 S.W.3d 667, 671-72 (Tex. 2006); Smith, 562 S.W.3d at 82. One such section in the subchapter, section 101.055(2), excludes any waiver of immunity for
a claim arising . . . (2) from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others . . . .TEX. CIV. PRAC. & REM. CODE § 101.055(2) (emphasis added). This section is commonly called the "emergency exception" to the TTCA. Smith, 562 S.W.3d at 82. Under the emergency exception, "immunity is not waived for a claim arising from the action of an employee while responding to an emergency call or reacting to an emergency situation, if the action was in compliance with the laws and ordinances applicable to the situation." Id. "If no law or ordinance is applicable to the situation, then the 'emergency exception' will apply if the employee's action was not taken with conscious indifference or reckless disregard for the safety of others." Id.
"In Hartman, the Texas Supreme Court explained the interaction between the plaintiff's pleadings and the burden of proof when determining if the emergency exception applies." Smith, 562 S.W.3d at 83. "Once the governmental entity asserts and presents evidence to support the application of the 'emergency exception' under section 101.055(2), the plaintiff has the burden to plead and prove that the emergency exception does not apply." Id. (emphasis added) (citing Hartman, 201 S.W.3d at 672, and Quested v. City of Houston, 440 S.W.3d 275, 284 (Tex. App.—Houston [14th Dist.] 2014, no pet.)); see also City of San Angelo Fire Dep't v. Hudson, 179 S.W.3d 695, 700 (Tex. App.—Austin 2005, no pet.) (explaining that for the emergency exception to apply, the city must present evidence its employee was responding to an emergency call and acted in compliance with the laws applicable to the emergency situation).
The question thus arises as to whether the City in this case asserted and presented evidence in its plea to the jurisdiction to support the application of the emergency exception. See Smith, 562 S.W.3d at 83; see also City of Houston v. Hussein, No. 01-18-00683-CV, 2020 WL 6788079, at *7 (Tex. App.—Houston [1st Dist.] Nov. 19, 2020, no pet. h.) (explaining that to meet its initial burden of showing the emergency exception applied, the city "was required to present evidence establishing that [its employee] was responding to an emergency call or reacting to an emergency situation and that he acted in compliance with the law applicable to an emergency). The TTCA does not define the terms "emergency call" or "emergency situation." Smith, 562 S.W.3d at 83. However, the Texas Supreme Court has interpreted the term "emergency" broadly. Id. (citing Hartman, 201 S.W.3d at 672-73). According to the supreme court, "because the [TTCA] creates liability where it would not otherwise exist, [the court] cannot construe section 101.055(2) to exclude emergencies the Legislature might have intended to include." Hartman, 201 S.W.3d at 673.
The following are cases in which courts have concluded the emergency exception applied because the pleadings and evidence, either undisputed or in the light most favorable to the plaintiff, showed that governmental employees were responding to an emergency call or reacting to an emergency situation when the events giving rise to the plaintiff's claims occurred:
• In Hartman, 201 S.W.3d at 669, a car drove straight into the flooded portion of a road without slowing and was swept away in the current, resulting in the four occupants of the car drowning. The family members of the deceased sued the city, alleging that city employees' placement of barricades around the flooded street was inadequate. See id. at 673. The supreme court explained that the emergency situation was the flood and that the plaintiffs were suing the city for the allegedly negligent response of its employees to the flood by improperly placing or failing to place barricades on the flooded roadway. Id. at 672-73. The supreme court held that while there were "some fact questions here—whether one or more barricades stood on the western edge of the Rigsby Avenue flood, and who bore responsibility to put them there," there was "no fact question whether the City was reacting to an emergency situation." Id. Thus, the supreme court held an emergency situation existed as a matter of law and governmental
immunity had not been waived with regard to the actions of city employees in response to the flood. Id.
• In Smith, a motorist alleged that he suffered personal injuries as a result of employees from CPS Energy being negligent in failing to timely remove a light pole blocking the roadway and/or in failing to warn him of the light pole blocking the roadway. This court held that CPS Energy, in its plea to the jurisdiction, had presented evidence to support its contention that the plaintiff's claims regarding CPS Energy's failures to report, warn, remove, or make safe the roadway constituted complaints about the manner in which CPS Energy responded to an emergency call or reacted to an emergency situation. Smith, 562 S.W.3d at 84. Thus, this court held that the emergency exception applied. Id.
• In City of College Station v. Kahlden, No. 10-12-00262-CV, 2014 WL 1269026, at *1 (Tex. App.—Waco 2014, pet. denied), the plaintiffs alleged the City of College Station was liable for the death of the deceased because a College Station police officer negligently stopped on the roadway to remove debris, which caused the deceased to stop behind the patrol car and be struck from the rear by another motorist. The court of appeals explained the undisputed evidence showed that before the accident at issue, the police officer had seen a near collision on the roadway because of the debris. Id. at *5. Thus, the undisputed evidence showed that in stopping his vehicle to remove the debris, he was using precautionary measures and took action that was consistent with his determination removing the debris was an emergency. Id. Accordingly, the court held the city had established the officer was reacting to an emergency situation. Id.
• In Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 406 (Tex. App.—Fort Worth 2006, pet. denied), an arrestee kicked out a window of a patrol car while the car was moving and jumped out, resulting in another patrol car running over the arrestee and causing his death. The evidence showed that when the police officer saw the arrestee suddenly in the roadway, he was already braking and had no opportunity to swerve. Id. All of the officers involved in the transport testified as to the sudden, unexpected, and very quick escape of the arrestee onto the highway; they all stated they had no time to react. Id. at 407. After being sued for the arrestee's death, the city filed a plea to the jurisdiction. Id. The court of appeals held that the undisputed evidence showed "that when the police officers became aware of an attempted or ongoing escape, overhead flashing lights were activated, radio contact was attempted, and vehicles began to slow down and move to the side of the road." Id. at 410. The court held that when the arrestee "flung himself from the moving police car the officers were reacting to an emergency situation"—that of the arrestee attempting to escape from the patrol car. Id.
• In City of Amarillo v. Martin, 971 S.W.2d 426, 427 (Tex. 1998), a firefighter was driving a fire truck with warning lights and sirens operating when he approached an intersection, reduced his speed, but then proceeded through the intersection against a red light. His fire truck then collided with two vehicles crossing the intersection, one of which was the plaintiff's vehicle. Id. The plaintiff sued the city for damages, alleging that the firefighter was negligent in failing to maintain a proper lookout, to maintain a safe stopping distance, and to yield the right of way. Id. After a bench trial, the trial court rendered judgment for the plaintiff based on the fire fighter's negligent operation of the fire truck. Id. On appeal, the supreme court concluded that the emergency exception applied, and because under the emergency exception city personnel are liable only for reckless conduct, the city was entitled to immunity. Id. at 430-32.
• In Smith v. Janda, 126 S.W.3d 543, 546 (Tex. App.—San Antonio 2003, no pet.), this court held the emergency exception applied to a traffic accident between an ambulance driver and another vehicle because the undisputed evidence showed the ambulance driver had activated his lights and siren, slowed the ambulance, and ascertained that traffic was yielding to him before he proceeded into the intersection. The court explained the fact the ambulance driver entered the intersection against a red traffic light was "insufficient, in and of itself, to raise a genuine issue of material fact as to whether he acted recklessly" and thus the emergency exception applied. Id.
In all of the above cases, there was evidence that at the time his actions allegedly gave rise to the plaintiff's claims, a governmental employee was either (1) reacting to an emergency situation, or (2) responding to an emergency call. With regard to the first scenario, the City has not met its initial burden of showing that Sliva was reacting to an emergency situation. The facts as presented in the affidavits show the following: Sliva, who was driving the ambulance transporting Sanchez and her sons, stopped abruptly because a yellow chain was blocking the driveway to the hospital. None of the affidavits, however, state why the yellow chain was placed where it was placed. Although the City appears to be arguing that the mere placement of the yellow chain is in and of itself evidence of an emergency situation, the chain could have been placed before the driveway for a myriad of reasons, including those relating to non-emergency situations. Thus, we cannot conclude that the mere fact a yellow chain was placed before the driveway was evidence of an "emergency situation." Accordingly, we also cannot conclude that in stopping his ambulance suddenly, Sliva was reacting to an emergency situation.
With regard to whether there was evidence that at the time of the accident Sliva was responding to an emergency call, we note that in City of Houston v. Hussein, No. 01-18-00683-CV, 2020 WL 6788079, at *1 (Tex. App.—Houston [1st Dist.] Nov. 19, 2020, no pet. h.), the court of appeals considered this issue under similar facts. The plaintiffs in Hussein had alleged in their petition that they were riding in an ambulance owned by the city and operated by a city employee when the ambulance suddenly, and without warning, struck the concrete barrier of a toll booth. Id. As a result of the collision, they both suffered personal injuries. Id. They sued the city, alleging that its employee was negligent in failing to keep a proper lookout, failing to control the speed of the ambulance, failing to drive at a safe speed, failing to drive in a single lane, failing to turn the ambulance to avoid the impact, and attempting to drive a large ambulance through a narrow toll booth at an excessive speed. Id.
In response, the city moved for summary judgment, arguing that the emergency exception prevented the trial court from having subject-matter jurisdiction over the plaintiffs' claims. Id. The summary judgment evidence showed that when the ambulance arrived at the plaintiff's home with its sirens and lights flashing, the plaintiff was complaining of chest pain, and an EKG indicated that she was experiencing atrial fibrillation. Id. at *8. According to the paramedic, "when a patient has atrial fibrillation, but a normal heart rate, transportation to a hospital is required because paramedics are unable to ascertain whether the patient is having a PE, a heart attack, or is suffering from a more serious condition." Id. "Because such conditions are considered immediately life-threatening, even a patient with atrial fibrillation who is stable must be transported to a hospital with 'some urgency' because she 'could deteriorate rapidly.'" Id. Thus, "it was determined that [the plaintiff] was experiencing atrial fibrillation—a life-threatening condition which required her to be transported to a hospital with 'some urgency' because it could result in a heart attack, a PE, or a stroke." Id. at *9. Additionally, the plaintiff "required further testing at a hospital." Id. Therefore, the court of appeals concluded the city had met its initial burden of showing that the ambulance driver "was responding to an emergency call or reacting to an emergency situation at the time of the collision." Id.
Because the city had met its initial burden, the burden shifted to the plaintiffs "to raise a genuine issue of material fact as to whether [the ambulance driver] was responding to an emergency call or reacting to an emergency situation at the time of the collision." Id. The plaintiffs argued that "at the time of the actual collision any emergency no longer existed because [the patient] was stable, breathing normally, and communicating with paramedics while being transported in the ambulance." Id. Further, during transport, the ambulance driver "did not utilize the ambulance's emergency lights and siren" and had even initially attempted to take the patient "to a hospital that was further away." Id. In his affidavit, the ambulance driver stated that "although the ambulance's emergency lights and siren were activated when it was initially dispatched to [the patient's] home, when he later transported [the plaintiffs] to the hospital, he did not utilize the ambulance's emergency lights and siren because [the patient's] condition did not require their use." Id. Given the evidence, the court of appeals concluded that "a reasonable juror could conclude that engaging the ambulance's emergency lights and siren while in route to [the patient's] home, but not activating those same lights and siren while transporting [the patient] to the hospital, raised a fact issue as to whether [ambulance driver] was responding to an emergency call or reacting to an emergency situation at the time of the collision." Id.; see also Collins v. City of Houston, No. 14-13-00533-CV, 2014 WL 3051231, at *7-8 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding that the plaintiff presented an issue of material fact as to whether a law enforcement officer was responding to an emergency call where the evidence showed the law enforcement officer did not have the siren activated). According to the court of appeals, "[t]he mere fact that . . . a paramedic and an engineer/operator of an ambulance was transporting [a patient] to a hospital in an ambulance does not automatically render the situation an emergency." Hussein, 2020 WL 6788079, at *10. Thus, in considering all the evidence in the light most favorable to the plaintiffs, the court of appeals concluded that the plaintiffs had raised an issue of material fact as to whether the ambulance driver "was responding to an emergency call or an emergency situation at the time of the collision." Id.
Here, the evidence shows that Sanchez had called for an ambulance because her minor son, B.S., was suffering from high blood pressure and palpitations, which were thought to be caused by a panic attack. When first arriving at the apartment complex, the ambulance had its siren activated. However, when Sanchez found the ambulance, neither its siren nor lights were activated. B.S. was treated at the ambulance and was transported to the hospital as a precaution. No further treatment was performed on him during the ride to the hospital. Even assuming this evidence was sufficient for the City to meet its initial burden of showing Sliva was responding to an emergency call, we must conclude, as the court of appeals did in Hussein, that evidence of (1) B.S. being transported to the hospital as a precaution, (2) B.S. not being treated in the ambulance during the ride to the hospital; and (3) the failure of Sliva to activate his siren or lights during the ride to the hospital raises an issue of material fact regarding whether Silva, at the time of the accident, was responding to an emergency call. See id. Accordingly, we hold the trial court did not err in denying the City's plea to the jurisdiction. See id.
CONCLUSION
For the reasons stated above, we affirm the trial court's order denying the City's plea to the jurisdiction.
Liza A. Rodriguez, Justice