Opinion
04-21-00452-CV
07-13-2022
MEDINA COUNTY, Appellant v. Martha JOHNSON, Appellee
From the 454th Judicial District Court, Medina County, Texas Trial Court No. 21-06-27203-CV Honorable Donna S. Rayes, Judge Presiding
Sitting: Luz Elena D. Chapa, Justice, Beth Watkins, Justice, Liza A. Rodriguez, Justice
MEMORANDUM OPINION
Luz Elena D. Chapa, Justice
This case arises out of a collision between an unmarked Medina County Sheriff's Department patrol vehicle driven by Deputy Sgt. Charles Bryson and a vehicle driven by appellee Martha Johnson. In this interlocutory appeal, Medina County contends the trial court erred by denying its plea to the jurisdiction based on the emergency exception to the waiver of immunity in the Texas Tort Claims Act. We hold the trial court did not err in denying the County's plea and affirm the trial court's order.
The "Medina County Sheriff's Department" is actually the "Medina County Sheriff's Office." Because Medina County Sheriff's Office is not a party to this appeal, we use "department" instead of "office" for consistency.
BACKGROUND
On July 16, 2020, Johnson's vehicle was struck by the unmarked police unit driven by Sgt. Bryson. On June 29, 2021, Johnson sued the Medina County Sheriff's Department-adding Medina County in an amended petition two months later-for negligence alleging Sgt. Bryson unsafely operated his police unit, failed to maintain a proper lookout, failed to properly use emergency sirens, failed to control his speed, and failed to operate his police unit in a safe manner to avoid other vehicles on the road. In response to the amended petition, Medina County and the Sheriff's Department filed an amended plea to the jurisdiction. After a hearing on October 18, 2021, the trial court denied Medina County's plea to the jurisdiction and granted Medina County Sheriff's Department's plea to the jurisdiction.
Medina County filed this appeal.
GOVERNMENTAL IMMUNITY
In its sole point of error, Medina County argues the trial court erred by denying its plea to the jurisdiction based on the emergency exception. We disagree.
A. Texas Tort Claims Act
"Governmental units are immune from suit unless immunity is waived by state law." City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022). A party suing a governmental entity must establish the State's waiver, "which may be alleged either by reference to a statute or to express legislative permission." City of Laredo v. Sanchez, No. 04-20-00402-CV, 2020 WL 7364660, at *3 (Tex. App.-San Antonio Dec. 16, 2020, pet. denied) (mem. op.) (internal quotation marks omitted). The Texas Tort Claims Act provides a limited immunity waiver under certain circumstances. Section 101.021, provides in pertinent part:
A governmental unit in the state is liable for:
(1) property damage[] [and] personal injury . . . 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[] [or] personal injury . . . arises from the operation or use of a motor-driven vehicle . . .; and
(B) the employee would be personally liable to the claimant according to Texas law. . . .Tex. Civ. Prac. & Rem. Code § 101.021(1). Although the Tort Claims Act waives immunity from suit under certain circumstances, subchapter C of Chapter 101 includes an emergency exception to the waiver.
B. Emergency Exception
The emergency exception set forth in section 101.055 provides in pertinent part:
[The Tort Claims Act immunity waiver] does not apply to 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.Id. § 101.055(2).
The Texas Transportation Code establishes the law for operating emergency vehicles in Texas. Under section 546.001, a police officer may, when responding to an emergency call, "exceed a maximum speed limit . . . as long as the operator does not endanger life or property; and . . . disregard a regulation governing the direction of movement or turning in specified directions." Tex. Transp. Code §§ 546.001-.002. A police officer must use audible or visual signals. Id. § 546.003 see also id. § 546.004(c) (identifying inapplicable exceptions to audible or visual signals requirement). Moreover, the police officer has a "duty to operate the vehicle with appropriate regard for the safety of all persons" and is not relieved from "the consequences of reckless disregard for the safety of others." Id. § 546.005; see Maspero, 640 S.W.3d at 531 (exception applies unless fact issue exists as to whether police officer acted with conscious indifference or reckless disregard for safety of others).
C. Standard of Review
The party suing the governmental unit bears the burden to affirmatively show waiver of immunity. Maspero, 640 S.W.3d at 528. "[T]o prevail on a claim of immunity, the governmental defendant may challenge whether the plaintiff has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the case, the existence of those very jurisdictional facts, or both." City of San Antonio v. Riojas, 640 S.W.3d 534, 536 n.8 (Tex. 2022) (internal quotation marks omitted). "Because governmental immunity is jurisdictional, it is properly raised through a plea to the jurisdiction, which we review de novo." Maspero, 640 S.W.3d at 528. When a plea challenges the existence of jurisdictional facts, as Medina County did here, this court must move beyond the pleadings and consider evidence. See id. at 529; Riojas, 640 S.W.3d at 536 n.8. "The analysis then mirrors that of a traditional summary judgment." Riojas, 640 S.W.3d at 536 n.8.
"To that end, in evaluating the parties' evidence, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Maspero, 640 S.W.3d at 528-29. "When the pleadings and evidence generate a fact question on jurisdiction, dismissal on a plea to the jurisdiction is improper." Id. at 529 (internal quotation marks omitted). "However, if the evidence is undisputed or fails to raise a fact question, the plea must be granted." Id. (internal quotation marks omitted).
A "plaintiff bears the burden of negating the emergency exception's applicability." Id. To meet this burden in cases where a plaintiff does not dispute that the officer was responding to an emergency situation, the plaintiff must "raise a fact issue that either (1) [the officer]'s pursuit violated the laws and ordinances applicable to emergency response or (2) the pursuit was reckless." Id. This distinction becomes immaterial given the structure and language of the relevant statutory provisions governing emergency response. Id. This is because under Texas Transportation Code Section 546.005, a driver of an emergency vehicle must drive with appropriate regard for the safety of all persons and is not relieved of the consequences of reckless disregard for the safety of others. Id.
D. Analysis
The sole issue here is whether Johnson's Texas Tort Claims Act claim falls within the Act's emergency exception. Johnson does not dispute Sgt. Bryson was responding to an emergency situation, i.e., en route to assist other officers involved in a pursuit with shots fired. Johnson must therefore raise a fact issue as to whether Sgt. Bryson's actions leading to the collision were reckless. See id.
"Under the Transportation Code, reckless driving consists of driving a vehicle in willful or wanton disregard for the safety of persons or property." Id. at 531 (internal quotations omitted). "[T]his standard requires 'conscious indifference,' or 'subjective awareness of an extreme risk.'" Id. "[R]ecklessness reflects more than a 'momentary judgment lapse and instead 'requires a showing that the driver committed an act he knew or should have known posed a high degree of risk of serious injury.'" Id.
In support of its plea to the jurisdiction, Medina County attached the accident report completed by Texas Department of Public Safety Trooper Peter Herrera, which was filed with the Texas Department of Transportation. The report explains:
[Johnson's vehicle] and [Sgt. Bryson's unmarked police unit] are traveling east on CR-664 approaching the intersection of CR-664 and CR-676. [Johnson's vehicle] is in front of [Sgt. Bryson's unmarked police unit]. . . . [The] unmarked police unit [had] its lights and siren active. [Johnson] came to a stop. [Johnson] hears the siren coming from [Sgt. Bryson's unmarked police unit] approximately 3-4 seconds prior
to impact. At this time, [Sgt. Bryson] attempts to pass [Johnson] on the left side. [Johnson] Failed to Yield Right Of Way to Emergency Vehicle by stopping and by failing to drive to a position parallel to and as close as possible to the right-hand edge or curb of the roadway clear of any intersection . [Johnson] attempted to make a left turn and as a result, [Sgt. Bryson's unmarked police unit] struck [Johnson] with its Front end Distributed against [Johnson's vehicle]'s Back end Damage. [Sgt. Bryson] attempted to avoid a collision by turning to the right as [Johnson] turned to the left. . . . [Johnson's vehicle] sustained damaged to its Back end Damage. [The unmarked police unit] sustained damage to its Front end Distributed. . . . According to [Sgt. Bryson], he was traveling about 75-80 mph. According to [Johnson], she stated that she did not turn left after she stopped however based on trajectory that [Johnson's vehicle] took after impact [Johnson] was turning in a left direction. Furthermore, based on the skid marks of [the unmarked police unit], [Sgt. Bryson] took an evasive maneuver to attempt to steer away from [Johnson's vehicle] as [Johnson's vehicle] moved to the left.
The report further acknowledged the speed limit was 40 mph.
Sgt. Bryson added in an affidavit:
At approximately 4:45 p.m., I was enroute to assist other officers actively involved in a pursuit with shots fired. I was traveling east on CR 664 (Old Calum Store Road) with my lights and siren activated when I approached a white Toyota Camry (the "vehicle") operated by Johnson. As I approached the vehicle, it came to a stop on the right side of the roadway about ten (10) yards from the intersection of CR 664 and CR 676. I saw that the vehicle was yielding to me. I could see that there was no oncoming traffic. I could also see both ways on CR 676 and that there was no traffic at the stop signs on CR 676. I used my brakes to slow down and then I committed to pass the vehicle on the left. After I was committed to passing, the vehicle suddenly pulled forward and turned left towards CR 676 in front of me. I braked and took evasive action to the right but was unable to avoid striking the rear of the vehicle. If I had not taken evasive action, I would have hit her car on the driver's side door and possibly killed the driver.
Medina County objected to the portions of Johnson's affidavit that included statements from unidentified witnesses as hearsay and noted the trial court sustained its objections. However, unless an order sustaining a hearsay objection to the affidavit "was reduced to writing, signed, and entered of record, the evidence remains part of the summary judgment proof even if a party has objected to an opponent's summary judgment evidence." See Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 166 (Tex. 2018); Cty. of El Paso v. Baker, 579 S.W.3d 686, 694 (Tex. App.-El Paso 2019, no pet.).
In opposition to the plea, Johnson's affidavit provided:
I had been on 664 approximately 2 miles when I approached the intersection of CR 644 and CR 676. I was traveling very slowly with my left hand turn signal on as I approached the intersection in anticipation of turning left on CR 676. Immediately prior to stopping and making the left turn I heard a siren approach. The siren started out of nowhere and I could not determine where the source of the siren was coming from as I paused on my side of the road to try and locate it. I was only stopped 3-4
seconds while trying to find the source of the siren with my foot on the brake pedal as I looked around, and then suddenly I was impacted from behind . . . . I do not recall hearing any horn, tire screeching or braking noise, or other type of alert coming from the officer's vehicle as it approached my vehicle. . . .
Two people who lived off the road where the accident happened ran down to the scene of crash to check on me. They told me they did not see the accident but that they heard the siren turn on just a few second before the crash. One of the people did say they saw the officer's vehicle fly by their front porch prior to the crash without its siren on way faster then normal people drive on the road. The speed limit is 40 mph on that part of CR 664. . . . At the time of the accident I was not trying to turn left. I had stopped my car prior to beginning my left hand turn because I didn't have time to determine where the siren was coming from. The amount of time between the siren turning on and when I was hit was so fast I didn't have any chance to do anything other then stop like I was before the officer hit me.
Taken together, the undisputed evidence establishes Sgt. Bryson was responding to an emergency situation, i.e., en route to assist other officers involved in a pursuit with shots fired. With sirens activated, his unmarked police unit was traveling on CR-664 as it headed toward the CR-664-CR-676 intersection, near where the collision occurred. Johnson heard the unmarked police unit's sirens approaching her vehicle approximately three to four seconds before the accident but did not yield the right of way. Instead, she stopped her vehicle before entering the intersection and remained in her lane on CR-664 with her left turn signal on. Sgt. Bryson was aware, three to four seconds before the collision, Johnson was stopped on the road and did not yield the right of way. Sgt. Bryson saw no oncoming traffic going in the opposite direction on CR-664, and he saw no traffic at the intersection. Sgt. Bryson braked to slow down and then decided to pass Johnson's vehicle on the left. Sgt. Bryson then braked again immediately before his police unit rear ended Johnson's vehicle. Johnson did not hear braking or tires screeching. Sgt. Bryson was traveling between 75 and 80 mph at impact-double or near double the speed limit.
The evidence is in dispute as to whether Johnson remained at a complete stop or began turning left at the time Sgt. Bryson's police unit collided with her vehicle. Sgt. Bryson stated he had to swerve right, after he decided to pass Johnson on the left, because Johnson began to turn left and had he not taken such action he "could have possibly killed [Johnson]." Johnson stated in her affidavit she did not attempt to turn left, and Sgt. Bryson's police unit simply rear-ended her vehicle. Because we must resolve any doubts in the nonmovant's favor, we must take Johnson's evidence as true stating she was not trying to turn left at the time of the accident. See Maspero, 640 S.W.3d at 528.
When we indulge every reasonable inference and resolve any doubts in Johnson's favor, the evidence raises a genuine issue of material fact as to whether Sgt. Bryson's actions reflected conscious indifference or reckless disregard for Johnson's safety. See, e.g., City of Pasadena v. Belle, 297 S.W.3d 525, 534-35 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (affirming trial court's denial of plea to jurisdiction because there was fact issue as to whether police officer was reckless when he responded to emergency call by, among other things, traveling twice speed limit without operating emergency lights or siren); see also Hidalgo Cnty. v. Calvillo, No. 13-15-00261-CV, 2016 WL 552086, at *4-5 (Tex. App.-Corpus Christi-Edinburg Feb. 11, 2016, no pet.) (mem. op.) (holding county failed to meet its burden to show deputy did not act with conscious indifference or reckless disregard for safety of public where evidence established deputy was responding to emergency when he was involved in accident, and deputy, among other things, attempted to pass appellee's vehicle on shoulder when appellee made right turn, where appellee stated he never saw patrol vehicle's lights or heard siren); Kaufman Cnty. v. Leggett, 396 S.W.3d 24, 31-32 (Tex. App.-Dallas 2012, pet. denied) (affirming denial of plea to jurisdiction where officer, among other things, traveled 107 mph in sixty-five mile per hour zone in an unmarked police unit, and unmarked police unit was following appellee too closely for safety). We therefore overrule Medina County's sole issue.
CONCLUSION
The order denying Medina County's plea to the jurisdiction is affirmed.