Opinion
No. 05-03-00573-CV
Opinion Filed October 20, 2003
On Appeal from the 193rd District Court, Dallas County, Texas, Trial Court Cause No. 00-03276-L
AFFIRM
Before Chief Justice THOMAS AND Justices WRIGHT and FITZGERALD.
MEMORANDUM OPINION
Bobby Glenn Redd and City of Garland, Texas appeal the denial of their motion for summary judgment based on official immunity. We affirm the trial court's order denying appellants' motion for summary judgment.
Redd is an employee of Garland and operates a street sweeper. On February 3, 2000, a few days after an ice storm, Redd was operating a street sweeper to remove the sand and gravel placed on the streets and bridges to provide traction over the ice. While sweeping a bridge and sending up a large cloud of dust, the sweeper was struck from behind by a vehicle driven by Brenda Hughes, causing a multi-car collision, which included Teresa De Moss's vehicle. Garland sued Hughes for damaging the sweeper, and Hughes sued Garland for negligently operating the sweeper. De Moss sued Hughes, Redd, and Garland. De Moss's suit was consolidated with Hughes's suit. Hughes and De Moss alleged Redd and Garland were negligent for operating the sweeper without any visual or auditory warnings. Redd and Garland moved for summary judgment on the ground of official immunity, and the trial court denied the motion for summary judgment. Redd and Garland appeal the denial of their motion for summary judgment pursuant to section 51.014(a)(5) of the civil practice and remedies code. Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(5) (Vernon Supp. 2003).
STANDARD OF REVIEW
The standard for reviewing a summary judgment is well established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A party moving for summary judgment has the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Swilley v. Hughes, 488 S.W.2d 46, 47 (Tex. 1972). After the movant has established a right to summary judgment, the burden shifts to the nonmovant to present evidence creating a fact issue. Kang v. Hyundai Corp., 992 S.W.2d 499, 501 (Tex.App.-Dallas 1999, no pet.).
In this case, Redd and Garland asserted official and governmental immunity as affirmative defenses. Thus, they had the burden to conclusively prove all the essential elements of these defenses. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). If Redd and Garland carried this burden, appellees then had to controvert their proof. See id.
OFFICIAL IMMUNITY
"Government employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority." City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Although an official may have immunity for discretionary actions, officials have no immunity for the performance of ministerial actions. Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex. 1994); Perry v. Greanias, 95 S.W.3d 683, 694 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). An action is discretionary if it requires personal deliberation, decision, and judgment; an action is ministerial if it requires obedience to orders or the performance of a duty regarding which the actor has no choice. City of Coppell v. Waltman, 997 S.W.2d 633, 636 (Tex.App.-Dallas 1998, pet. denied).
A governmental entity does not waive governmental immunity, even if the claim involves injury from the use of a motor vehicle, if the employee would not be liable. Tex. Civ. Prac. Rem. Code Ann. § 101.021(1) (Vernon 1997). Thus, if Redd is entitled to official immunity, then Garland has governmental immunity. See City of Houston v. Daniels, 66 S.W.3d 420, 424 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Waltman, 997 S.W.2d at 636.
In this case, appellees assert the trial court was correct to deny appellants' motion for summary judgment because appellants failed to show that operation of the sweeper without its visual warning, the rotating flashing lights mounted on the sweeper, was a discretionary action, and appellants failed to prove conclusively that the rotating flashing lights were operating at the time of the accident. Steven Oliver, the Director of the Street Department, testified in his deposition that it was mandatory in Garland for the rotating flashing lights to be operating when the sweeper is in use. No evidence in the record shows use of the rotating flashing lights was not mandatory. Thus, the record establishes that use of the rotating flashing lights was a ministerial action and was not discretionary.
Redd testified in part of his deposition that the rotating flashing lights were operating at the time of the accident. However, at the end of his deposition, he testified he could not see the lights while driving the sweeper and he did not notice whether they were operating after the accident. When asked whether he could testify to a jury that the rotating flashing lights were operating just before the accident, Redd answered, "No." See
Appellees presented Hughes's "affidavit," which stated the street sweeper's rotating flashing lights were not operating at the time of the accident. This document is neither signed nor notarized. The lack of a signature and notarization are defects of substance that may be raised for the first time on appeal. See Medford v. Medford, 68 S.W.3d 242, 247 (Tex.App.-Fort Worth 2002, no pet.) ("affidavit" lacking notarization is substantively defective); Hall v. Rutherford, 911 S.W.2d 422, 425 (Tex.App.-San Antonio 1995, writ denied) ("affidavit" lacking signature of affiant is substantively defective); Blanche v. First Nationwide Mortg. Corp., 74 S.W.3d 444, 451 (Tex.App.-Dallas 2002, no pet.) (substantive defect in summary judgment proof may be raised for the first time on appeal); see also Tex.R.Civ.P. 166a(f) (defects in the form of summary judgment evidence must be preserved through objection). Thus, Hughes's "affidavit" is substantively defective, and we do not consider it.
We conclude appellants failed to establish as a matter of law that operating the sweeper without its visual warning, the rotating flashing lights, was a discretionary act, and they failed to prove conclusively that the sweeper's visual warning system, the rotating flashing lights, was operating at the time of the accident. Accordingly, appellants failed to prove as a matter of law entitlement to official immunity from suit on the allegations in appellees' petitions. We hold the trial court did not err in denying appellants' motion for summary judgment.
We affirm the trial court's order denying appellants' motion for summary judgment.