Opinion
14-20-00660-CV
06-30-2022
GALVESTON COUNTY, Appellant v. JACQUELINE MARIE BURNS AND STEVEN BURNS, Appellees
On Appeal from the County Court No. 3 Galveston County, Texas Trial Court Cause No. CV-0086218
Panel consists of Justices Wise, Spain, and Hassan.
MEMORANDUM OPINION
Ken Wise, Justice.
Appellees Jacqueline and Steven Burns sued Galveston County after its employee, a police officer, drove through a red light and collided with Jacqueline's car. The County filed a plea to the jurisdiction alleging governmental immunity based on the emergency exception of the Texas Tort Claims Act and the officer's official immunity. The trial court denied the plea, and the County brings this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). We affirm.
I. Legal Principles
The County, as a political subdivision of the state, generally has governmental immunity from suit. See Gillespie v. Galveston Cty. Health Dist., 639 S.W.3d 815, 819 (Tex. App.-Houston [14th Dist.] 2021, no pet.) (citing Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 429-30 (Tex. 2016)). Unless waived, governmental immunity from suit defeats a trial court's subject-matter jurisdiction. Id. (citing Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)).
Under the Texas Tort Claims Act (TTCA), governmental immunity is waived for, among other things, personal injuries or property damage proximately caused by the wrongful act or omission or the negligence of a government employee acting within the scope of employment if the harm or damage arises from the operation or use of a motor-driven vehicle and the employee would be personally liable to the claimant according to Texas law. Id. (citing Tex. Civ. Prac. & Rem. Code § 101.021(1)).
Two exceptions to the waiver of immunity are at issue in this appeal. First, the waiver of immunity does not apply to a claim arising from a governmental employee's actions "while responding to an emergency call . . . if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others." Id. (quoting Tex. Civ. Prac. & Rem. Code § 101.055(2)). Consistent with this provision and other applicable laws and ordinances, the operator of an emergency vehicle retains immunity from suit except for actions taken with conscious indifference or reckless disregard for the safety of others. Id. Thus, a claimant must show that a governmental employee committed acts or omissions that the employee "knew or should have known posed a high degree of risk of serious injury" or "knew the relevant facts but did not care about the result." Id. at 819-20.
The "applicable law" is Section 546.005 of the Transportation Code, which provides that the operator of an emergency vehicle is not relieved from the "the consequences of reckless disregard for the safety of others." Gillespie, 639 S.W.3d at 819 (quoting Tex. Transp. Code § 546.005).
Similarly, governmental immunity is not waived if the employee would be entitled to official immunity because under those circumstances, the employee would not be personally liable to the claimant according to Texas law. See id. at 822-23. "Official immunity is an affirmative defense that protects a governmental employee from personal liability for the good-faith performance of discretionary duties within the scope of the employee's authority." Id. at 823 (citing Tex. Dep't of Pub. Safety v. Bonilla, 481 S.W.3d 640, 643 (Tex. 2015) (per curiam)). "Good faith" is a test of objective legal reasonableness. Id. An officer acts in good faith if "a reasonably prudent officer, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when the conduct occurred." Id. (quoting Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 164 (Tex. 2004)).
II. Standard of Review
Whether a court has subject-matter jurisdiction is a question of law that is properly asserted in a plea to the jurisdiction. Id. at 818 (citing Tex. Dep 't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004)). We review a trial court's ruling on a plea to the jurisdiction de novo. Chambers-Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019). When, as here, parties submit evidence supporting or opposing the plea, we apply the same standards applicable to a traditional motion for summary judgment. See id.; Gillespie, 639 S.W.3d at 818-19. We take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiffs favor. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018). We view the evidence in the light most favorable to the plaintiff. Id. at 792.
The defendant bears the initial burden to present conclusive proof that the trial court lacks jurisdiction. Quested v. City of Houston, 440 S.W.3d 275, 280 (Tex. App.-Houston [14th Dist.] 2014, no pet.). If the defendant discharges this burden, the plaintiff must present evidence sufficient to raise a material issue of fact regarding jurisdiction. Id. If the evidence creates a fact question regarding the jurisdictional issue, then the trial court must deny the plea and allow the factfinder to resolve the issue. Gillespie, 639 S.W.3d at 819. Evidence is conclusive only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). Undisputed evidence is not always conclusive; in many instances, it is not conclusive. Id.
III. The Evidence
The evidence submitted in support of and in response to the County's plea is mostly undisputed. The County's employee, a police officer, was driving her marked Chevrolet Tahoe eastbound while Jacqueline Burns drove her Cadillac sedan northbound. It was raining and overcast, and the roads were wet. The officer was responding to a "Code Three" dispatch regarding an accident that had occurred on Interstate 45. A vehicle had spun out on the freeway and was disabled and facing the wrong direction of traffic, blocking lanes.
The officer was driving with her lights and sirens activated. She decided to drive through red lights on the way to the freeway. Near the intersection where the collision between the officer and Burns ultimately occurred, another accident had occurred earlier. Three other police vehicles, along with the collision vehicles, were parked in the left lane of the two northbound lanes-parallel to Burns's direction of travel. Burns's road had two southbound lanes, a center left-turn lane, two northbound lanes, and a right-turn lane. One of the police vehicles assisting in the earlier accident had a dashboard camera recording; the video was submitted into evidence. This screenshot shows the scene moments before the collision; Burns's red Cadillac is in the right northbound lane, and the officer's white Tahoe is in the middle of the intersection:
(Image Omitted)
Burns entered the intersection on a green light; the officer had a red light. Burns applied her brakes shortly after entering the intersection. She testified that she was driving below 30 miles per hour at the time of the collision. The speed limit was 45 miles per hour.
The officer testified, and the video corroborates, that the officer slowed her vehicle shortly before entering the intersection. However, the video appears to show the officer accelerating while in the southbound lanes of Burns's road without again slowing or applying brakes before entering the northbound lanes.The officer testified that she was "careful to watch for others on the roadway" and that "other drivers had stopped and yielded to me." The video does not show any other drivers on Burns's road yielding to the officer. Rather, the video shows several other drivers proceeding through the green light before the collision; at least one driver did the same after the collision.
The County contends that the video shows the officer apply her brakes before the collision and does not show Burns apply her brakes. We disagree with the County's assertions.
The officer made a statement in a "safety officer memorandum" that she saw Burns's car "traveling north on [the road] preparing to enter the intersection and failing to yield to my patrol vehicle," and Burns's car was "on the right side of the Santa Fe PD units," yet the officer "continued through the intersection." The officer did not state or later testify that she applied her brakes; she testified that she swerved left to lessen the impact between the vehicles. The County adduced no evidence concerning the officer's speed at the time of the collision.
The officer blamed Burns for the collision: "[Burns] was travelling at a high rate of speed, failing to yield to my right of away with my lights and sirens on or to the right of way of the three (3) other Santa Fe police cars, which also had their lights on responding to the other accident. . . . [Burns] also should have yielded to my right of way since I had my lights and sirens on and was traveling in an emergency." The officer testified that if Burns had been "traveling slower or had applied her brakes under the circumstances, she would have had ample time to stop to avoid a collision."
Another officer's crash report indicated that Burns's view of the intersection was blocked due to the vehicles stopped in the left lane from the earlier accident. Burns testified that she had "no warning" the officer was approaching and entering the intersection on a red light.
The officer testified that, at the time of the collision, she was traveling to the other accident on Interstate 45 "as quickly as possible" because she was the only officer responding to a major accident. She believed it was necessary to reach the other accident to reduce the possibility of harm to those involved and other vehicles due to the blocked roadway. She "considered the risk of harm to others by me driving to the accident scene and determined that the risk was minimal because the traffic was light at that time, and I am trained and experienced in driving quickly and safely in response to emergencies under many different conditions and circumstances." She "weighed the risks of proceeding through a red light versus the need to have an officer at a major accident scene on the Interstate."
A police lieutenant similarly faulted Burns for the collision, testifying, "If the red Cadillac had slowed due to the lights on the Sante Fe patrol cars or yielded to [the officer], I believe [the officer] could have cleared the intersection, and the collision could have been entirely avoided." The liutenant opined that the officer "acted properly and did everything she could to avoid colliding" with Burns. He opined that "another reasonably prudent law enforcement oficer under the same or similar circumstances could have believed that the need to quickly reach [a] major accident scene outwighed any minimal risk of harm to others," and a "reasonably prudent law enforcmeent officer could also have concluded that [the officer's] decisions and actions were justified and reasonable based on her perception of the facts at the time."
IV. Emergency Exception
In its two overlapping issues on appeal, the County first contends that the trial court incorrectly denied the plea to the jurisdiction because (1) there was no fact issue concerning governmental immunity, and (2) the officer was responding to an emergency, complied with applicable laws, and did not act with conscious indifference or reckless disregard for the safety of others.
Within its statement of issues, the County also refers to the trial court's denial of its Rule 91a motion to dismiss. The County does not advance a substantive argument regarding Rule 91a, so any issue related to Rule 91a is waived. See, e.g., Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App-Houston [14th Dist] 2002, no pet.). Regardless, the Burnses correctly note that this court lacks jurisdiction to review the trial court's denial of the Rule 91a motion absent a permissive appeal. See In re HMR Funding LLC, 561 S.W.3d 662, 664-65 (Tex. App-Houston [14th Dist.] 2018, orig. proceeding).
Generally, a governmental unit can conclusively establish that its employee did not act with conscious indiference or reckless disregard for the safety of others if there is undisputed evidence that the emergency vehicle entered an interestction on a red light with lights and sirens activated and the operator slowed sufficiently before entering the intersection to see that all traffic had stopped or yielded before proceeding. See Gillespie, 639 S.W.3d at 822. In Gillespie, this court held that the governmental unit failed to conclusively establish the emergency exception because there was evidence that the emergency vehicle driver entered the intersection without slowing, and although the driver had activated lights and sirens, the driver knew or should have known that "driving at an increased speed past a red light and into an intersection with an obstructed view posed a high degree of risk or serious injury." Id. at 821.
Here, there is some evidence that, after initially slowing down, the officer accelerated through the red light despite an obstruction in the roadway that prevented northbound drivers from seeing the officer's vehicle. Although the officer had her lights and sirens activated, there were three other police vehicles obstructing the view, also with their lights activated. There is some evidence that the officer actually saw Burns's vehicle "on the right side" of the other police vehicles "traveling north on [the road] preparing to enter the intersection and failing to yield to [the officer's] patrol vehicle," yet the officer "continued through the intersection" unabated. The officer blamed the collision on Burns for not yielding to the officer. This evidence would enable a factfinder to conclude that the officer knew the relevant facts-that a vehicle was approaching the intersection with an obstructed view, in rainy conditions with wet roads-but the officer did not care about the result when she accelerated through the intersection and into the northbound lanes of Burns's road against a red light. The officer expected Burns to yield to the officer's flashing lights and siren although three other police vehicles were parked in the road, also with flashing lights, obstructing Burns's view. Considering all of the evidence, a reasonable factfinder possibly could conclude that the officer knew or should have known her conduct posed a high degree of risk of serious injury or that she knew the relevant facts but did not care about the result.
The County's reliance on other cases with distinguishing facts is inapposite. For example, in City of Arlington v. Barnes, which applied the emergency exception, the police officer slowed down to allow another car to pass through the intersection, checked for additional cars before proceeding, and did not see any more cars. See No. 2-07-249-CV, 2008 WL 820385, at *1 (Tex. App.-Fort Worth Mar. 27, 2008, pet. denied) (mem. op.). In City of San Angelo Fire Department v. Hudson, the driver of a fire truck testified that he was driving no more than ten miles per hour, observed other traffic had yielded to him, was sounding his air horn approaching the intersection, had his foot on the brake, and applied his brake harder when seeing the plaintiff's car heading toward the intersection; another witness testified that he heard the fire truck, stopped before entering the intersection, and observed that other vehicles had stopped to yield to the truck. See 179 S.W.3d 695, 700-01 (Tex. App.-Austin 2005, no pet.).
Unlike in the Barnes and Hudson cases, a factfinder possibly could conclude in this case that the officer saw Burns before Burns entered the intersection, yet the officer continued through the intersection on a red light despite an obstruction caused by multiple other police vehicles with flashing lights. The video contradicts the officer's testimony about other vehicles yielding to her. The video shows the officer accelerating through the intersection, and no other evidence was adduced concerning the officer's speed at the time of the collision.
The trial court did not err by denying the plea to the jurisdiciton on this basis.
V. Official Immunity
The County next contends that the trial court incorrectly denied the plea to the jurisdiction because (1) there was no fact issue concerning governmental immunity, and (2) the County had governmental immunity because the officer had official immunity. The parties join issue on the good-faith element of official immunity.
In the context of an officer responding to an emergency, "good faith depends on how a reasonbly 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." Gomez v. City of Houston, 587 S.W.3d 891, 897-98 (Tex. App.-Houston [14th Dist.] 2019, pet. denied) (en banc). An opinion that a police officer acted in good faith does not conclusively establish good faith if the opinion is reached by assuming the truth of disputed facts or failing to consider material uncontroverted facts. See Green v. Alford, 2 74 S.W.3d 5, 20 (Tex. App.-Houston [14th Dist] 2008, pet. denied) (en banc) (no conclusive evidence of good faith when firefighter assumed disputed fact of whether fireman was wearing corrective lenses at time of accident and failed to consider uncontroverted fact of higher speed limit on the plaintiffs road compared to the firefighter's road); see also Gomez, 587 S.W.3d at 898-99 (no conclusive evidence of good faith when officer assumed use of overhead emergency lights despite conflicting evidence).
Here, the officer's and lieutenant's opinions about good faith assumed disputed facts-that Burns was driving too fast despite her testimony she was driving at least fifteen miles below the speed limit; that Burns failed to apply her brakes and failed to yield to the officer although the video shows Burns's brake lights were activated; and that other vehicles had yielded to the officer. Their opinions similarly failed to consider material uncontroverted facts-that the parked vehicles, including three police cars with flashing lights, blocked the view of the officer's Tahoe for drivers in the northbound lanes on Burns's road; and that the officer had previously stated she could see Burns's car on the road to the right of those vehicles with Burns's car failing to yield, yet the officer continued through the intersection. Reasonable people could differ in their conclusions whether the officer was acting in good faith when she accelerated through the intersection despite seeing Burns's vehicle, an obstruction in Burns's line of sight, and the wet and rainy conditions. Accordingly, the County failed to conclusively establish the officer's official immunity and the County's concomitant governmental immunity.
The County assumes, similar to the officer's testimony, that Burns did not comply with Section 545.157(b)(2)(A) of the Transportation Code, which requires a motorist to reduce their speed to twenty miles per hour less than the posted speed limit when approaching a stationary emergency vehicle using visual signals. See Tex. Transp. Code § 545.157(b)(2)(A).
The trial court did not err by denying the plea to the jurisdiction on this basis.
VI. Conclusion
Having concluded that the trial court did not err by denying the County's plea to the jurisdiction, we overrule the County's issues and affirm the trial court's order.