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involving fact question on whether officer was reckless in entering intersection
Summary of this case from City of Hous. v. ArellanoOpinion
NO. 14-20-00211-CV
12-30-2021
Seronda GILLESPIE and Torondia Talbert, Appellants v. GALVESTON COUNTY HEALTH DISTRICT, Appellee
Timothy A. Hootman, Brian H. Crockett, Jonathan Christopher Kieschnick, Houston, for Appellants. Jennifer Diane O'Sullivan, Jordan Perez, Austin, for Appellee.
Timothy A. Hootman, Brian H. Crockett, Jonathan Christopher Kieschnick, Houston, for Appellants.
Jennifer Diane O'Sullivan, Jordan Perez, Austin, for Appellee.
Panel consists of Chief Justice Christopher and Justices Hassan and Poissant.
OPINION
Tracy Christopher, Chief Justice
In this personal-injury case arising from a collision between a car and an ambulance, plaintiffs Seronda Gillespie and Torondia Talbert appeal from the trial court's grant of a plea to the jurisdiction filed by the ambulance driver's governmental employer Galveston County Health District on the ground that the Texas Tort Claims Act's "emergency exception" precludes a waiver of its governmental immunity. The District additionally argues on appeal that its governmental immunity remains intact because the ambulance driver is entitled to official immunity, and thus, the District is not subject to a suit to hold it vicariously liable for her actions. Because we conclude that material fact questions prevent affirmance of the order granting the jurisdictional plea on either of these grounds, we reverse the judgment and remand the case for further proceedings consistent with this opinion.
I. BACKGROUND
Paramedic Brittany Sanders-Fletcher was on duty as a paramedic and ambulance driver for the Galveston County Health District when she was dispatched to pick up a patient for emergency transportation to the hospital. Paramedic Spencer Dauphine was in the front passenger seat, and a paramedic student rode in the back of the ambulance. Sanders-Fletcher's route lay along Broadway Avenue J in Galveston. On this street, a broad median separates the three east-bound lanes from the three west-bound lanes, and the speed limit in this area is 35 miles per hour. Sanders-Fletcher drove the ambulance east on Broadway Avenue J with the ambulance's emergency lights and siren activated. A police patrol car happened to be following a short way behind the ambulance, and its dashboard camera recorded the events that followed.
When Sanders-Fletcher approached a red light at the intersection of Broadway Avenue J and 23rd Street, she slowed the ambulance nearly to a stop before proceeding through the intersection and continuing east toward 21st Street. The video taken from the patrol car shows that the median of Broadway Avenue J leading up to 21st Street is planted with trees and shrubs that largely obstruct the view between drivers traveling east on Broadway Avenue J and drivers traveling south on 21st Street.
At the intersection of Broadway Avenue J and 21st Street, Sanders-Fletcher again faced a red light, but this time she did not slow down. The patrol car's video captured the scene immediately before the ambulance entered the intersection, and in the video, a white car, already in the intersection, is visible through a gap between a hedge and a tree on the median. When the ambulance was nearly across the intersection, the left front of the white car struck the left rear of the ambulance. The collision turned the white car more than 90 degrees, and the car rolled to a stop on the median west of the intersection. The ambulance spun around, overturned onto its roof, and slid to a stop further west on the median.
Seronda Gillespie was a passenger in the white car, which was driven by Torondia Talbert. Gillespie sued Talbert and the Galveston County Health District (the District) for unidentified injuries sustained in the collision. The District and Talbert asserted cross-claims against one another.
The District also filed, then nonsuited, a third-party claim against the white car's owner, EAN Holdings, LLC.
The District filed a plea to the jurisdiction in which it asserted it was entitled to governmental immunity and that the facts of the case fall within the "emergency exception" to the Texas Tort Claims Act's waiver of immunity. The trial court granted the District's plea, evidently on the emergency exception, for the trial court wrote in its order,
The Court has reviewed a police dash-cam of the entire incident. It is clear that the ambulance driver acted appropriately. The private vehicle hit the ambulance when the ambulance was almost entirely through the intersection. The ambulance was not speeding and was proceeding with appropriate caution. The Court finds as a matter of law that the ambulance driver was not acting with conscious indifference or reckless disregard of the safety of others.
Gillespie and the District later nonsuited their claims against Talbert, and the dismissal of the claims against the District merged into the final judgment.
Gillespie and Talbert appeal the order granting the District's plea on the emergency-exception ground. In addition to joining issue on this ground, the District argues in the alternative that Sanders-Fletcher is entitled to official immunity, and thus, there is no waiver of governmental immunity under the Texas Tort Claims Act in any event.
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. Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 224 (Tex. 2004). We review the 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). Parties may submit evidence supporting or opposing the plea, which we review applying the same standard applicable to a traditional motion for summary judgment. Id. (citing Sampson v. Univ. of Tex. at Austin , 500 S.W.3d 380, 384 (Tex. 2016) ). We take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff's favor. Sampson , 500 S.W.3d at 384. If the relevant evidence fails to raise a fact question on the jurisdictional issue, the court rules on the plea to the jurisdiction as a matter of law. Miranda , 133 S.W.3d at 228. If the evidence instead creates a fact question regarding the jurisdictional issue, then the trial court must deny the plea and allow the factfinder to resolve the issue. Id. at 227–28.
III. THE TEXAS TORT CLAIMS ACT
The state generally has sovereign immunity from suit and liability. See Wasson Interests, Ltd. v. City of Jacksonville , 489 S.W.3d 427, 429–30 (Tex. 2016). When political subdivisions of the state act in a governmental capacity, they share in the state's immunity, which is then referred to as governmental immunity. See id. Unless waived, governmental immunity from suit defeats a trial court's subject-matter jurisdiction. See Harris County v. Sykes , 136 S.W.3d 635, 638 (Tex. 2004).
The Texas Tort Claims Act (TTCA) provides a limited waiver of governmental immunity if certain conditions are met. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021, 101.025. Under these provisions, governmental immunity from suit and liability is waived for, among other things, personal injuries or property damage proximately caused by the wrongful act or omission or the negligence of a governmental 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. § 101.021(1). However, the Act's waiver 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. § 101.055(2).
The applicable law is section 546.005 of the Texas Transportation Code. See City of Brazoria, Tex. v. Ellis , No. 14-14-00322-CV, 2015 WL 3424732, at *7 (Tex. App.—Houston [14th Dist.] May 28, 2015, no pet.) (mem. op.). Under this provision, the operator of an authorized emergency vehicle is not relieved from "the duty to operate the vehicle with appropriate regard for the safety of all persons" or "the consequences of reckless disregard for the safety of others." TEX. TRANSP. CODE ANN. § 546.005. This provision "imposes a duty to drive with due regard for others by avoiding negligent behavior, but it only imposes liability for reckless conduct." City of Amarillo v. Martin , 971 S.W.2d 426, 431 (Tex. 1998) (interpreting predecessor provision, which referred to "due regard" rather than "appropriate regard"). Because the TTCA waives sovereign and governmental immunity from suit only to the extent that the TTCA creates liability, 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. Thus, the claimant must show that the operator of the emergency vehicle committed acts or omissions that the driver 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."
Tex. Civ. Prac. & Rem. Code Ann. § 101.025
Martin , 971 S.W.2d at 430 ; Green v. Alford , 274 S.W.3d 5, 23 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (op. on en banc reh'g).
City of San Antonio v. Hartman , 201 S.W.3d 667, 672 n.19 (Tex. 2006).
IV. FACT QUESTIONS PRECLUDE APPLICATION OF THE EMERGENCY EXCEPTION
Gillespie and Talbert do not dispute that Sanders-Fletcher was responding to an emergency at the time of the accident and that the ambulance's lights and sirens were activated. It also is undisputed that Sanders-Fletcher did not slow the ambulance as she drove through a red light and into the intersection. Thus, the dispositive question is whether a reasonable factfinder could find that Sanders-Fletcher knew or should have known that her conduct posed a high degree of risk of serious injury. We conclude that there is a genuine issue of material fact on that issue, and thus, the trial court erred in granting the plea to the jurisdiction.
First, the language of the trial court's order shows that in concluding the emergency exception applies, the trial court erroneously resolved questions of fact in the District's favor. To begin with, the trial court wrote in the order that "[t]he ambulance was not speeding." But the jurisdictional evidence includes the crash report, which states that the speed limit at the site of the accident was 35 miles per hour. The evidence also includes the video taken from the patrol car. When the ambulance entered the intersection, the patrol car was traveling at 39 miles per hour and apparently keeping pace with the ambulance, from which a reasonable factfinder could conclude that the ambulance was traveling above the speed limit. This is consistent with the affidavit testimony of Sanders-Fletcher, who attested that her maximum speed was 35–45 miles per hour, and with the testimony of Dauphine, who estimated the ambulance's maximum speed at 35–40 miles per hour.
Then, too, the video shows that the median between west- and east-bound lanes of Broadway Avenue J was obstructed with hedges, trees, and what appears to be a utility box. The extent of obstruction is perhaps best demonstrated by the District's assertion on appeal that "Sanders-Fletcher entered the intersection first, notably before Appellants were at the intersection," and includes in its brief a screenshot of the video purporting to illustrate this contention. But in fact, the plaintiffs’ white car can be through a gap between a hedge and a tree on the median.?
The plaintiffs’ car was already completely within the intersection before the ambulance entered it.
The trial court points out that the car struck the ambulance, but it is also true that running the red light without slowing placed the ambulance in the car's path, and they collided less than one second after Sanders-Fletcher entered the intersection. Although the trial court found that Sanders-Fletcher "was proceeding with appropriate caution," a reasonable factfinder viewing the video properly could conclude otherwise.
There also is evidence that Sanders-Fletcher 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 of serious injury. She attested, "Through my experience as a paramedic and ambulance driver, I am familiar with the needs and risks that ambulance drivers must consider during emergency transportation." Certainly the high risk of serious injury posed by driving past an obstructed view of cross-streets and into an intersection against a red light and without slowing down is a risk that ambulance drivers must consider, and the plaintiffs offered the affidavit of their expert witness that driving into the intersection against a red light with an obstructed view of 21st Street and without being able to first see that all lanes of cross traffic had yielded posed a high degree of serious injury.
Although the District objected that the expert witness was unqualified and addressed subject matter on which expert testimony was not appropriate, the trial court did not rule on the objections.
To address the risk posed by entering an intersection at an elevated speed against a red light, the legislature enacted Texas Transportation Code section 546.001, which states that an operator of an authorized emergency vehicle may "proceed past a red or stop signal or stop sign, after slowing as necessary for safe operation" and "exceed a maximum speed limit ... as long as the operator does not endanger life or property." TEX. TRANSP. CODE ANN. § 546.001(2), (3). Sanders-Fletcher attested that she is "familiar with the laws and ordinances that address the operation of ambulances as emergency motor vehicles," but it is undisputed that she entered the intersection against the red light without slowing, and there is evidence that she was exceeding the speed limit as she did so. Finally, the District has not cited, and we have not found, any case in which the emergency exception was applied in circumstances similar to those presented here. In cases in which an emergency vehicle with its lights and siren activated entered an intersection against a red light, the emergency exception applied where the operator slowed before entering the intersection or was already traveling below the posted speed limit. Indeed, if it is undisputed that the operator of an emergency vehicle with its lights and siren activated slowed sufficiently before entering the intersection and saw that all traffic had stopped or yielded before proceeding, then conflicting evidence about whether the operator's light was red or green is insufficient to raise a material question of fact regarding recklessness. See Smith v. Janda , 126 S.W.3d 543, 546 (Tex. App.—San Antonio 2003, no pet.). If, on the other hand, the emergency vehicle's lights and siren are activated but the operator is traveling above the speed limit and does not slow before entering the intersection, then conflicting evidence about whether the operator's light was red or green is sufficient to raise a fact question on recklessness. See Zapata v. City of Gonzales , No. 13-18-00065-CV, 2020 WL 486489, at *5 (Tex. App.—Corpus Christi Jan. 30, 2020, no pet.) (mem. op.).
See, e.g., Tex. Dep't of Pub. Safety v. Kendziora , No. 09-19-00432-CV, 2020 WL 6494210, at *4 (Tex. App.—Beaumont Nov. 5, 2020, no pet.) (mem. op.) (operator slowed almost to a stop before entering intersection); City of Kingsville v. Dominguez , No. 13-19-00236-CV, 2020 WL 2776543, at *4 (Tex. App.—Corpus Christi May 28, 2020, no pet.) (mem. op.) (operator was traveling below posted speed limit when entering intersection); Tex. Dep't of Pub. Safety v. Sparks , 347 S.W.3d 834, 841 (Tex. App.—Corpus Christi 2011, no pet.) (video showed operator slowed almost to a stop before entering intersection); City of Pasadena v. Kuhn , 260 S.W.3d 93, 99–100 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (operator slowed or stopped before proceeding through intersection); City of Arlington v. Barnes , No. 2-07-249-CV, 2008 WL 820385, at *5 (Tex. App.—Fort Worth Mar. 27, 2008, pet. denied) (mem. op.) (operator slowed and saw traffic had stopped or yielded before entering intersection); City of San Angelo v. Hudson , 179 S.W.3d 695, 700–01 (Tex. App.—Austin 2005, no pet.) (operator slowed to no more than 10 mph before proceeding through intersection).
This is not to say that slowing before entering an intersection is dispositive. The emergency exception does not necessarily apply even when an emergency vehicle's operator activates the lights and siren and slows before entering an intersection. See, e.g., Rivera v. City of Houston , No. 01-19-00629-CV, 2020 WL 7502054, at *6–7 (Tex. App.—Houston [1st Dist.] Dec. 22, 2020, no pet.) (mem. op.) (emergency exception held inapplicable where operator slowed before entering intersection but did not know whether light was red or green because she was typing on her MDT rather than looking at the road).
Because the evidence viewed in the plaintiffs’ favor is sufficient to raise a fact question as to whether Sanders-Fletcher knew or should have known that entering the intersection in the circumstances presented here posed a high risk of serious injury, we hold that the trial court erred in granting the District's plea to the jurisdiction. We sustain the sole issue presented by Gillespie and Talbert.
V. THE DISTRICT FAILED TO PROVE OFFICIAL IMMUNITY APPLIES
Absent an applicable exception (such as the emergency exception we have just discussed), a governmental entity waives immunity from liability and suit if the property damage, personal injury, or death at issue 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." TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1). The District argued in its plea to the jurisdiction that its immunity is not waived under this provision because Sanders-Fletcher is entitled to official immunity, and therefore would not be personally liable to Gillespie and Talbert. Although the trial court did not rule on this issue, and Gillespie and Talbert did not brief it, this argument, if correct, would deprive the trial court of subject-matter jurisdiction over Gillespie's and Talbert's claims. Because subject-matter jurisdiction can be challenged for the first time on appeal, we will address the District's official-immunity argument.
Henry v. Cox , 520 S.W.3d 28, 35 (Tex. 2017).
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. 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 official acts in good faith if "a reasonably prudent official, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when the conduct occurred." Joe v. Two Thirty Nine Joint Venture , 145 S.W.3d 150, 164 (Tex. 2004).
Sanders-Fletcher's conduct at issue consists of driving the ambulance, with its lights and siren activated, past a red light without first "slowing as necessary for safe operation." See TEX. TRANSP. CODE ANN. § 546.001. Construing the evidence in plaintiffs’ favor, as we must, the information Sanders-Fletcher possessed at the time is shown on the police video, namely, the view of cross-traffic was obstructed by the hedges, tree, and utility box on the median, and Sanders-Fletcher was traveling at a rate exceeding the speed limit. The District presented no evidence that a reasonably prudent official could have believed that Sanders-Fletcher was justified in entering the intersection without first slowing down under these circumstances. The District does not contend otherwise; it merely asserts on appeal that Sanders-Fletcher is entitled to official immunity because there is no fact issue as to whether her conduct was reckless and that the video shows her cautious speed and approach through the intersection. Because there is a genuine issue of material fact as to whether Sanders-Fletcher's conduct was reckless, the District's official-immunity argument cannot be sustained on this basis.
VI. CONCLUSION
Because there are material fact issues as to whether the emergency exception applies and whether Sanders-Fletcher is entitled to official immunity, we reverse the judgment and remand the case to the trial court for further proceedings consistent with this opinion.