ACCEPTED
13-15-00122-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
5/11/2015 1:44:14 PM
DORIAN RAMIREZ
CLERK
NO. 13-15-00122-CV
FILED IN
13th COURT OF APPEALS
IN THE THIRTEENTH COURT OFCORPUS
APPEALSCHRISTI/EDINBURG, TEXAS
CORPUS CHRISTI, TEXAS 5/11/2015 1:44:14 PM
DORIAN E. RAMIREZ
Clerk
THE CITY OF BAY CITY, TEXAS
Appellant/Defendant
v.
WADE MCFARLAND
Appellee/Plaintiff
On Appeal from the 23rd District Court, Matagorda County, Texas
Trial Court Cause No. 12-H-0516-C;
Honorable Ben Hardin, Presiding
APPELLANT'S BRIEF
Steven D. Selbe
State Bar No. 18004600
Andrew J. Pratka
State Bar No. 24079159
GORDON & REES, LLP
1900 W. Loop S., Ste. 1000
Houston, TX 77027
Telephone: (713) 961-3366
Facsimile: (713) 961-3938
sselbe@gordonrees.corn
apratka@gordonrees.com
Counsel for Appellant
The City of Bay City, Texas
ORAL ARGUMENT REQUESTED
PARTIES AND COUNSEL
The parties to the trial court's judgment and the names and addresses of all
trial and appellate counsel are listed below. TEX. R. APP. P. 3 8.1(a).
Defendant/Appellant The City of Bay City, Texas
Steven D. Selbe
State Bar No. 18004600
Andrew J. Pratka
State Bar No. 24079159
GORDON & REES LLP
1900 West Loop South, Suite 1000
Houston, Texas 77027
Telephone: (713) 961-3366
Facsimile: (713) 961-3938
sselbe@gordonrees.corn
apratka@gordonrees.com
Plaintiff/Appellee Wade McFarland
David Romagosa
State Bar No. 24047493
FARRAR & BALL, LLP
1010 Lamar, Suite 1600
Houston, TX 77002
Telephone: (713) 221-8300
Facsimile: (713) 221-8301
david@fbtrial.corn
ii
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ix
STATEMENT OF THE CASE 1
STATEMENT OF JURISDICTION 2
STATEMENT OF FACTS 3
SUMMARY OF ARGUMENT 4
ARGUMENTS AND AUTHORITIES 5
I. STANDARDS OF REVIEW 5
II. STANDARD FOR PLEA TO THE JURISDICTION 5
III. TRADITIONAL SUMMARY JUDGMENT STANDARD 6
A. Governmental Immunity 7
B. Official Immunity 7
IV. ISSUE NO. 1: THE CITY IS ENTITLED TO A PRESUMPTION OF
GOVERNMENT IMMUNITY AND THE CITY'S SOVEREIGN
IMMUNITY IS NOT WAIVED BECAUSE OFFICER KUNZ
OPERATED HER PATROL CAR IN COMPLIANCE WITH THE
LAW AND NOT IN A RECKLESS MANNER OR WITH
CONSCIOUS INDIFFERENCE 8
A. The Emergency Exception to Immunity Waiver is Applicable 8
1. Officer Kunz Complied With Texas Traffic Laws 9
2. Officer Kunz Did Not Act Recklessly or With Conscious
Disregard for the Safety of Others 11
a. Texas Department of Public Safety v. Sparks 14
b. City of Pasadena v. Kuhn 19
c. Smith v. Janda 20
iii
d. No Evidence of Recklessness 22
V. ISSUE NO. 2: THE CITY IS ENTITLED TO OFFICIAL
IMMUNITY BECAUSE OFFICER KUNZ ACTED IN GOOD
FAITH AND A REASONABLY PRUDENT POLICE OFFICER,
UNDER THE CIRCUMSTANCES, WOULD HAVE REACHED
THE SAME DECISION 26
A. Officer Kunz is Entitled to Official Immunity and the City is Entitled
to Sovereign Immunity 27
1. Officer Kunz Performed Discretionary Duties within Her
Scope of Authority 28
2. Officer Kunz Acted in Good Faith 28
3. City of San Angelo Fire Department v. Hudson 30
4. Affidavit and Testimony of Officer Kunz 32
a. Imminent Need 32
b. Immediate Danger Outweighed Risk 33
5. Green v. Alford Is Distinguishable From the Present Case 35
6. Plaintiff's Expert's Opinion Fails to Offer Any Reliable
Evidence of Bad Faith 37
C. Public Policy Underlying Official Immunity 39
CONCLUSION 40
PRAYER 40
CERTIFICATE OF COMPLIANCE UNDER TEX. R. APP. P. 9.4(I)(3) 41
CERTIFICATE OF SERVICE 42
APPELLANT'S APPENDIX 43
iv
TABLE OF AUTHORITIES
Cases
Barker v. City of Galveston,
907 S.W.2d 879 (Tex. App.-Houston [1st Dist.]
1995, writ denied) 30
Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547 (Tex. 2000) 6
Cathey v. Booth,
990 S.W.2d 339 (Tex. 1995) 6
City of Amarillo v. Martin,
971 S.W.2d 426 (Tex. 1998) 9, 12, 13, 20, 22, 23, 24
City of Arlington v. Barnes,
No. 02-07-249-CV, 2008 Tex. App. LEXIS
-Fort
2236 (Tex. App.Worth Mar. 27, 2008,
pet. denied) 17, 25, 43
City of Dallas v. Garcia,
1998 Tex. App. LEXIS 1785 (Tex. App.-
Dallas 1998, no pet.) 30
City of Lancaster v. Chambers,
884 S.W.2d 650 (Tex. 1994) 7, 8, 27, 28, 29, 37, 40
City of Laredo v. Varela,
2011 Tex. App. LEXIS 3485 (Tex. App.-San
Antonio, 2011, pet. denied) 18, 22, 26, 43
City of Pasadena v. Kuhn,
260 S.W.3d 93 (Tex. App.-Houston [1st Dist.]
2008, no pet.) 11, 13, 19, 20, 22, 24, 25
City of San Angelo Fire Dep't v. Hudson,
179 S.W.3d 695 (Tex. App.2005,
-Austin no
pet.) 13, 18, 22, 24, 25, 30, 31, 32
City of San Antonio v. Hartman,
201 S.W.3d 667 (Tex. 2006) 9, 11, 14
Cont 'l Coffee Prod. Co. v. Cazarez,
937 S.W.2d 444 (Tex. 1996) 5
DeWitt v. Harris County,
904 S.W.2d 650 (Tex. 1995) 7, 27
Green v. Alford,
274 S.W.3d 5 (Tex. App.—Houston [14th Dist.]
2008, pet denied) 35, 36
Harlow v. Fitzgerald,
457 'U.S. 800 (1982) 40
Kaufman County. v. Leggett,
396 S.W.3d. 24 (Tex. App.—Dallas 2012, pet.
denied) 9
Lamar Univ. v. Doe,
971 S.W.2d 191 (Tex. App.—Beaumont 1998,
no pet.) 7
Lowe v. Tex. Tech Univ.,
540 S.W.2d 297 (Tex. 1976) 7
Mem? Villages Police Dep't v. Gustafson,
2011 Tex. App. LEXIS 6595 (Tex. App.—
Houston [1st Dist.] 2011, no pet.) 30
Montgomery County v. Fuqua,
22 S.W.3d 662 (Tex. App.—Beaumont 2000, no
pet.) 7
Nixon v. Mister Prop. Mgmt. Co.,
690 S.W.2d 546 (Tex. 1995) 6
Smith v. Janda,
126 S.W.3d 543 (Tex. App.—San Antonio 2003,
no pet.) 13, 20, 21, 22, 24, 34
State v. McGeorge,
925 S.W.2d 105 (Tex. App.—Houston [14th
Dist.] 1996, writ denied) 30
vi
Telthorster v. Tennell,
92 S.W.3d 457 (Tex. 2002) 39
Tex. Ass 'n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440 (Tex. 1993) 5
Tex. Dep't of Pub. Safety v. Sparks,
347 S.W.3d 834 (Tex. App.—Corpus Christi
2011) 14, 15, 16, 17, 18, 22, 23, 25, 39
Tex. Dept. of Parks and Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) 5, 7
Tex. Highway Dep't v. Jarrell,
418 S.W.2d 486 (Tex. 1967) 5, 6
Torres v. Owens,
380 S.W.2d 30 (Tex. Civ. App.—Corpus Christi
1964, writ refused n.r.e.) 28
Travis v. City of Mesquite,
830 S.W.2d 94 (Tex. 1992) (Cornyn, J.,
concurring) 39
Univ. of Houston v. Clark,
38 S.W.3d 578 (Tex. 2000) 8, 39
Wadewitz v. Montgomery,
951 S.W.2d 464 (Tex. 1997) 29
Statutes
TEX. Civ. PRAC. & REM. CODE § 101.021(1)(B) 7, 9
TEX. Civ. PRAC. & REM. CODE § 101.055(2) ix, 8, 9, 11, 14, 19, 20, 21, 26
TEx. Civ. PRAC. & REM. CODE § 51.014(a)(8) 2
TEX. GOV'T CODE ANN. § 312.002 11
TEX. TRANSP. CODE § 545.156 9, 10, 24, 34
TEX. TRANSP. CODE § 546.001(2) 3, 9, 10, 16, 18, 22, 24, 26
vii
RULES
TEx. R. APP. P. 38.1(a). ii
TEX. R. APP. P. 39.7 ix
TEX. R. APP. P. 9.4(i)(2)(B) 41
viii
STATEMENT REGARDING ORAL ARGUMENT
Appellants request oral argument of this appeal. TEX. R. APP. P. 39.7. Oral
argument will be helpful to the court in deciding whether the waiver of government
immunity exclusion contained in Section 101.055(2) of the Texas Practices &
Remedies Code applies in order to determine whether or not the trial court has
subject matter jurisdiction to determine the issue in controversy.
ix
TO THE HONORABLE COURT OF APPEALS:
Appellant the City of Bay City, Texas (the "City" or "Bay City") requests
that this Court reverse the trial court's Order denying its Plea to the Jurisdiction
and Traditional Motion for Summary Judgment and render judgment for Appellant.
STATEMENT OF THE CASE
This is a case for damages arising out of injuries Plaintiff/Appellee Wade
McFarland ("McFarland" or "Plaintiff') alleges he received in an
automobile/motorcycle accident with Bay City Police Officer Kimberly Kunz
("Officer Kunz" formerly "Officer Martinez") that occurred on June 5, 2011, in
Bay City, Texas. (CR 5-8). Plaintiff filed suit against Bay City alleging negligent
hiring, training, supervision, and retention of Officer Kunz, and for vicarious
liability under the theory of respondeat superior for the negligence, negligence per
se, gross negligence and/or malice of Officer Kunz. (CR 5-8).
On June 9, 2014, the City filed a Plea to the Jurisdiction and Traditional
Motion for Summary Judgment asking the Court to grant judgment for the City and
dismiss Plaintiffs claims with prejudice for lack of subject matter jurisdiction.
(CR 14-49). On March 6, 2015, after oral hearing, the Court denied the City's Plea
to the Jurisdiction. (CR 79). The City timely filed its Notice of Interlocutory
Appeal on February 27, 2015. (CR 80-81).
STATEMENT OF JURISDICTION
This court has jurisdiction under Section 51.014(a)(8) of the Texas Civil
Practice & Remedies Code because this is an accelerated appeal from an
interlocutory order denying a plea to the jurisdiction of a governmental unit in a
civil lawsuit in the 23rd Judicial District of Matagorda County, Texas, and the
denial of a motion for summary judgment based on the official immunity of
Officer Kunz.
2
STATEMENT OF FACTS
On June 4, 2011, Officer Kunz of the Bay City Police Department was
responding to a domestic disturbance call involving multiple combatants with
weapons in a household with children. (CR 11, 35). Officer Kunz was driving a
marked patrol car following another officer to the disturbance. (CR 30, 35). Both
vehicles had their lights and sirens activated in response to the disturbance call and
were approaching a one way stop sign intersection in a residential neighborhood.
(CR 30-31, 35). The lead patrol car reached the intersection and proceeded
through the stop sign ahead of Officer Kunz. (CR 30-31, 35).
Officer Kunz reached the intersection a short time later and slowed down to
check for oncoming traffic. (CR 31, 35). As Officer Kunz was approaching the
intersection, she observed Plaintiff on her left approaching the intersection on a
motorcycle. (CR 31, 35-36). Plaintiff was required to yield the right of way for an
emergency vehicle under Texas law, however, Plaintiff failed to do so. (CR 33,
35-36). Officer Kunz continued through the intersection rolling through the stop
sign at a low rate of speed as permitted by TEx. TRANSP. CODE § 546.001(2). (CR
30-32, 35-36, 38).
Plaintiff failed to yield and proceeded through the intersection despite the
fact that Officer Kunz's patrol car's emergency lights and siren were activated.
(CR 30-31, 35-36, 38). Plaintiff testified that he saw the lead patrol car go through
3
the intersection with its lights and sirens activated, but Plaintiff simply never
looked to see if another patrol car was following behind the lead car. (CR 42).
Officer Kunz was not driving at a high rate of speed and tried to avoid Plaintiff's
motorcycle, but was unable to prevent a collision. (CR 30-32, 35-36).
Plaintiff allegedly sustained injuries to his back and wrist as a result of the
incident. (CR 43). Plaintiff subsequently filed suit against Bay City alleging
negligent hiring, training, supervision, and retention of Officer Kunz, and for
vicarious liability under the theory of respondeat superior for the negligence,
negligence per se, gross negligence and/or malice of Officer Kunz. (CR 4-6).
SUMMARY OF ARGUMENT
The trial court erred in denying the City's Plea to the Jurisdiction and
Traditional Motion for Summary Judgment and the City is entitled to a dismissal of
Plaintiff's claims on the following grounds:
1. The City is entitled to a presumption of entitlement to
government immunity and the City's sovereign immunity is not
waived because Plaintiff failed to show Officer Kunz operated
her patrol car in a reckless manner for immunity to be waived;
and
2. The City is entitled to immunity because Officer Kunz is
immune from liability for discretionary acts performed in good
faith within the scope of her authority and a reasonably prudent
police officer, under the circumstances, would have reached the
same decision.
4
ARGUMENTS AND AUTHORITIES
I. STANDARDS OF REVIEW
Appellate courts reviewing a challenge to a trial court's subject matter
jurisdiction review the trial court's ruling de novo. Tex. Dept. of Parks and
Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). When reviewing a plea to
the jurisdiction in which the pleading requirements have been met and evidence
has been submitted to support the plea that implicates the merits of the case, the
appellate court must take as true all evidence favorable to the non-movant. Id.
II. STANDARD FOR PLEA TO THE JURISDICTION
It is well established under Texas law that a plaintiff bears the burden of
demonstrating that the Court has subject-matter jurisdiction over a claim asserted
against a governmental entity. Tex. Ass 'n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 446 (Tex. 1993). Subject-matter jurisdiction is essential to the power
of a tribunal to decide a case, and without subject-matter jurisdiction a court cannot
render a valid judgment. Id. at 443. Subject-matter jurisdiction cannot be
presumed and cannot be waived. Cont'l Coffee Prod. Co. v. Cazarez, 937 S.W.2d
444, 448-49 n.2 (Tex. 1996).
A plea to the jurisdiction is proper when a court lacks subject-matter
jurisdiction to determine the subject to the controversy. Tex. Highway Dep't v.
Jarrell, 418 S.W.2d 486, 488 (Tex. 1967). A plea to the jurisdiction raises defects
5
in jurisdiction that cannot be cured; therefore, the goal of the plea to the
jurisdiction is to have the court dismiss the cause of action. Jarrell, 418 S.W.2d at
489. The purpose of a plea to the jurisdiction is to defeat a cause of action without
regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547, 554 (Tex. 2000).
III. TRADITIONAL SUMMARY JUDGMENT STANDARD
The standard for traditional summary judgment is well established: (1) the
movant for summary judgment has the burden of showing there is not genuine
issues of material fact and is entitled to summary judgment as a matter of law; (2)
in deciding whether there is a disputed material fact issue precluding summary
judgment, evidence favorable to the non-movant will be taken as truth; and (3)
every reasonable inference must be indulged in favor of the non-movant and any
doubts resolved in its favor. Nixon v. Mister Prop. Mgmt. Co., 690 S.W.2d 546,
548-49 (Tex. 1995). Summary judgment is proper for a defendant when the
evidence conclusively negates an essential element of plaintiff's cause of action or
conclusively establishes of the elements of an affirmative defense so that the
defendant must be granted judgment as a matter of law. Cathey v. Booth, 990
S.W.2d 339, 341 (Tex. 1995).
6
A. Governmental Immunity
Governmental immunity from suit defeats a trial court's subject matter
jurisdiction and is properly asserted in a plea to the jurisdiction. Miranda, 133
S.W.3d at 226. A governmental unit may not be sued for the torts of its agents in
the absence of a constitutional or statutory provision that waives its governmental
immunity for alleged wrongful acts. Lowe v. Tex. Tech Univ., 540 S.W.2d 297,
298 (Tex. 1976). As such, dismissal for want of jurisdiction is proper when a
lawsuit is barred by governmental immunity. Lamar Univ. v. Doe, 971 S.W.2d
191, 196 (Tex. App.—Beaumont 1998, no pet.). If a plaintiff fails to allege facts
within a petition which establish a waiver of immunity, dismissal for lack of
subject-matter jurisdiction is appropriate. Montgomery County v. Fuqua, 22
S.W.3d 662, 665 (Tex. App.—Beaumont 2000, no pet.).
B. Official Immunity
Official immunity is an affirmative defense that protects government
employees from personal liability. City of Lancaster v. Chambers, 884 S.W.2d
650, 653 (Tex. 1994). When official immunity shields a governmental employee
from liability, sovereign immunity shields the governmental employer from
vicarious liability. TEX. Civ. PRAC. & REM. CODE § 101.021(1)(B). DeWitt v.
Harris County, 904 S.W.2d 650, 653 (Tex. 1995). Official immunity protects law
enforcement officers from liability for (1) the performance of discretionary duties;
(2) within the scope of the officer's authority; (3) provided the officer acts in good
faith. Chambers, 883 S.W.2d at 653. Univ. of Houston v. Clark, 38 S.W.3d 578,
580-81 (Tex. 2000). Notably, official immunity has a different standard than mere
negligence. Chambers, 884 S.W.2d at 665.
IV. ISSUE NO. 1: THE CITY IS ENTITLED TO A PRESUMPTION OF
GOVERNMENT IMMUNITY AND THE CITY'S SOVEREIGN
IMMUNITY IS NOT WAIVED BECAUSE OFFICER KUNZ
OPERATED HER PATROL CAR IN COMPLIANCE WITH THE
LAW AND NOT IN A RECKLESS MANNER OR WITH
CONSCIOUS INDIFFERENCE.
The Court erred in denying the City's Plea to the Jurisdiction because the
City is entitled to a presumption of entitlement to government immunity, Officer
Kunz acted in compliance with the laws applicable to an emergency action and did
not drive her car recklessly or with conscious indifference to the safety of others.
A. The Emergency Exception to Immunity Waiver is Applicable
The Texas Tort Claims Act waives immunity from liability and suit only
under narrow and specific circumstances listed in the Act. In addition, the Act
excludes and/or excepts the waiver of immunity in emergency situations even if
the waiver of immunity would otherwise apply. Section 101.055(2) of the Act
governs the waiver of government immunity in emergency actions and states:
This chapter does not apply to a claim arising . . . 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
8
such 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). Courts interpreting this provision
have held that "[w]hen the exception applies, the [Act] is unavailable as a waiver
of immunity even if the facts otherwise fall within a waiver found in Section
101.021." Kaufman County v. Leggett, 396 S.W.3d. 24, 29 (Tex. App.—Dallas
2012, pet. denied) (citing City of San Antonio v. Hartman, 201 S.W.3d 667, 671-72
(Tex. 2006)).
Accordingly, government immunity is not waived pursuant to Section
101.055(2) of the Act if the government employee acted in compliance with
applicable laws and/or ordinances, or in the absence of such, if the government
employee's actions were not taken with conscious indifference or reckless
disregard for the safety of others.
1. Officer Kunz Complied With Texas Traffic Laws
Government immunity is not waived in this instance, because Officer
Kunz's actions while responding to the emergency complied with Texas traffic
laws.
Under Texas law, a peace officer has the right-of-way at an intersection
when operating under emergency circumstances. City of Amarillo v. Martin, 971
S.W.2d 426, 432 (Tex. 1998); TEX. TRANSP. CODE §§ 545.156 and 546.001 et seq.
Section 546.001(2) of the Texas Transportation Code allows police officers to
9
proceed through a stop sign, after slowing as necessary for safe operation. TEX.
TRANSP. CODE § 546.001(2). Section 545.156 of the Texas Transportation Code
further provides that, on the immediate approach of an emergency vehicle using
audible and visual signals, an operator, unless otherwise directed by a police
officer, shall yield the right-of-way, immediately pull over to the edge of the
roadway clear of any intersection, and stop and remain standing until the
emergency vehicle has passed. TEX. TRANSP. CODE § 545.156.
In this instance, Officer Kunz operated her patrol car in compliance with the
Texas Transportation Code while responding to the emergency call for the
domestic disturbance. Officer Kunz had her warning lights and sirens activated
when responding to the call and slowed down and safely cleared the roadways
before proceeding through the intersection. (CR 30-33, 35-36). Officer Kunz
observed Plaintiff approaching the intersection and found no indication that he
would not yield the right of way. (CR 36). Plaintiff was aware that police officers
are allowed to proceed through stop signs under these circumstances, yet he did not
yield despite the fact that it was apparent Officer Kunz was responding to an
emergency and had her lights and sirens activated. (CR 30-33, 35-36, 38, 41).
Because Officer Kunz's had her lights and sirens activated when responding
to the domestic disturbance call and slowed down before entering the intersection,
she was in compliance with Section 546.001(2) of the Texas Transportation Code,
10
and government immunity is not waived pursuant to Section 101.055(2) of the Act.
Accordingly, the trial court erred in denying the City's Plea to the Jurisdiction
because Officer Kunz's actions while responding to the emergency complied with
Texas traffic laws and, therefore, immunity is not waived pursuant to Section
101.055(2) of the Act.
2. Officer Kunz Did Not Act Recklessly or With Conscious
Disregard for the Safety of Others
Texas law requires a showing of recklessness for government immunity to
be waived in claims arising out of an emergency situation or action. Plaintiff failed
to show any evidence Officer Kunz acted recklessly in order to overcome the
immunity exception under Section 101.055(2) of the Act, and the Court erred in
denying the City's Plea to the Jurisdiction because the Court lacks subject-matter
jurisdiction to determine the subject in controversy.
"Reckless" means something more than taking calculated risk or momentary
lapses in judgment. The terms "conscious indifference" and "reckless disregard"
are not defined, and therefore courts give them their ordinary meaning. TEx.
GOv'T CODE ANN. § 312.002; Hartman, 201 S.W.3d at 672 n. 19 (Tex. 2006); City
of Pasadena v. Kuhn, 260 S.W.3d 93, 99 (Tex. App.—Houston [1st Dist.] 2008, no
pet.). The Texas Supreme Court has stated that these terms "require proof that a
party knew the relevant facts but did not care about the result." Kuhn, 260 S.W.3d
I,
at 99 (quoting Hartman, 201 S.W.3d at 672 n.19).
11
The Texas Supreme Court also established a test to govern the recovery of
damages for claims arising out of a public servant's use of a motor vehicle in an
emergency. Martin, 971 S.W.2d at 430. In Martin, the Texas Supreme Court held
that public servants cannot be liable for mere negligence and requires a showing of
recklessness. Id. at 432. "To recover damages resulting from the emergency
operation of an emergency vehicle, the Plaintiff must show that the operator has
committed an act that the operator knew or should have known, posed a hire
degree of risk of serious injury." Id at 430. In creating a reckless standard, one of
the Court's concerns was to serve the "public's interest minimizing emergency
response and delays." Id. at 433.
This is consistent with this State's policy in emergency cases to balance the
rights of by-standers or other innocent parties against the injustice of subjecting to
liability emergency vehicle operators (who are required to exercise discretion in
their jobs) and the dangers of threat of such liability would deter their willingness
to execute their duties with the decisiveness and judgment required by the public
good. Id at 431. It is important to allow those in the police officer's position to
exercise the duties of their respective officers without fear of liability as they are
"charged with protecting the public's health, safety and property, and a few
minutes and even seconds could make the difference between life and death." Id.
12
The essence of "recklessness" is in showing more than a mere "momentary
judgment lapse." Martin, 971 S.W.2d at 430. This standard allows emergency
vehicle operators to take "calculated risks" in order to save life or property. Id.
Officials are not required to eliminate all risk, or proceed only when there is no
possibility that injury will occur. An officer does not act recklessly and, therefore,
is not liable, if he proceeds in an intersection against a red light or a stop sign even
though some risk of harm exists. See Kuhn, 260 S.W.3d at 100 (holding evidence
that there was a blind intersection, that plaintiff's vehicle sustained a great deal of
damage and conclusory statements that officer was driving at a high rate of speed
was insufficient to raise fact issue as to "reckless disregard"); City of San Angelo
Fire Dep't v. Hudson, 179 S.W.3d 695, 701-02 (Tex. App.—Austin 2005, no pet.)
(holding no evidence of reckless disregard for safety of others where officer
entered intersection without stopping and witness did not hear brakes being
applied); Smith v. Janda, 126 S.W.3d 543 (Tex. App.—San Antonio 2003, no pet.)
(holding that evidence was insufficient to establish recklessness when ambulance
driven to emergency with lights and sirens and slowed down without coming to a
complete stop at an intersection).
In the present case, Plaintiff can only show that Officer Kunz took a
calculated risk in driving through the intersection under the circumstances
perceived by her. In order to prove recklessness it requires proof "that a party
13
knew the relevant facts but did not care about the result." Hartman, 201 S.W.3d at
672 n.19. Furthermore, to avoid a dismissal a plaintiff must actually adduce
evidence of recklessness and cannot rely on pleadings and allegations alone. Id. at
671-72.
a. Texas Department of Public Safety v. Sparks
In a similar emergency collision case, the Corpus Christi Court of Appeals
reversed a trial court's denial of the Texas Department of Public Safety's ("DPS")
plea to the jurisdiction and motion for summary judgment, holding that the DPS
retained government immunity from suit based upon the emergency exception
contained in Section 101.055(2) of the Act. Tex. Dep't of Pub. Safety v. Sparks,
347 S.W.3d 834 (Tex. App.—Corpus Christi 2011).
In that case, several DPS units were pursuing a speeding motorcycle in
Victoria, Texas. Id. at 836. During the pursuit, one DPS patrol car attempted to
prevent the motorcycle from turning towards a school zone and entered an
intersection against a red light and collided with another vehicle. Id. The DPS
moved for summary judgment seeking to establish that the DPS officer was not
reckless as a matter of law and that no subject matter jurisdiction existed because
the city was immune from suit under the emergency exception contained in Section
101.055(2) of the Act. Id.
14
In response, the plaintiff attempted to raise a fact issue with testimony from
the plaintiff's accident reconstruction expert and two other DPS officers, arguing
that the officer acted recklessly by not stopping at the red light and/or not properly
clearing the roadway before entering the intersection. Id. at 839-40. Specifically,
the plaintiff argued that the officer violated Section 546.001 of the Texas
Transportation Code, and that the officer should not have entered the intersection
until it was apparent that all drivers had yielded the right of way. Id.
According to deposition testimony from the plaintiff's expert, plaintiff's
expert reviewed the patrol car video and concluded that the officer exhibited
reckless disregard and conscious indifference to public safety by entering the
intersection against the red light. Id. at 843. The expert conceded that the officer
slowed down before entering the intersection and noted that the officer was not
required to stop for the red light. Id. The expert further testified that the officer
cleared the left lane as he was slowing down to approach the intersection, but did
not clear the left lane again before entering the intersection. Id.
The plaintiff also relied on the deposition testimony and report of the
officer's supervisor to raise a fact issue as to whether the officer acted recklessly.
According to the supervisor's report, the supervisor acknowledged that the officer
slowed down before entering the intersection, but believed that the officer failed to
exercise due caution by disregarding the red light and should have waited until he
15
was certain that other drivers had yielded the right of way before entering the
intersection. Id. at 842. The supervisor testified that he did not believe the officer
needed counseling about the incident, but was instructed by his supervisors to
counsel the officer. Id. at 843.
The plaintiff also relied on the report and deposition testimony of another
DPS officer charged with investigating the incident. According to the
investigating officer's incident report, the investigating officer found that the
officer had violated Section 546.001 of the Texas Transportation Code by failing to
properly clear the other roadways before proceeding through the intersection. Id.
When asked about the basis for this assertion during his deposition, the
investigating officer responded that his opinion that the officer violated Section
546.001 was based solely on the fact that a collision had occurred. Id. 840. After
reviewing this evidence, the trial court denied the DPS' motion for summary
judgment and plea to the jurisdiction. Id. at 836.
Upon review, the appellate court found the expert's conclusory opinion that
entering the intersection against the red light constituted reckless disregard and
conscious indifference, without any further support or explanation, was no
evidence as to whether the officer acted recklessly to raise a genuine issue of
material fact. Id. The court also found that the expert's testimony did not offer
any evidence demonstrating when or how far away the officer was when he first
16
cleared the left lane and/or how this made it unable for the officer to determine
whether he could proceed through the intersection. Id. The court specifically
noted that the patrol car video did not have footage of the officer while he was
driving and, therefore, could not independently confirm whether or when the
officer cleared the left lane. Id. at 843 n.10. Based upon these reasons, the
appellate court found the expert's testimony failed to raise a genuine issue of
material fact as to whether the officer acted recklessly for subject matter
jurisdiction to exist. Id. at 843-44.
Regarding the testimony and report from the officer's supervisor, the
appellate court found the supervisor's assertions that the officer failed to exercise
due caution by disregarding the red light was merely conclusory and no evidence
of the officer's recklessness. Id. Relying on similar opinions from other Texas
appellate courts, the court further found the evidence about the officer's
counseling/reprimand and the supervisor's allegations that the officer failed to
exercise due caution may have demonstrated that the officer was negligent, but did
not demonstrate that the officer acted recklessly to raise a fact issue. Id. at 842-43;
See also City of Arlington v. Barnes, No. 02-07-249-CV, 2008 Tex. App. LEXIS
2236, at **12-14 (Tex. App.—Fort Worth Mar. 27, 2008, pet. denied) (holding
written reprimand stating that officer failed to exercise due care and failed to
17
comply with transportation code did not raise fact issue on reckless disregard);
Hudson, 179 S.W.3d at 702.
The appellate court found the investigating officer's report and testimony
were conclusory and that the mere fact that a collision had occurred with an
emergency vehicle did not necessitate that the driver had been reckless and/or that
Section 546.001(2) had been violated. Id. at 842. Again, the appellate court noted
that even if the evidence presented demonstrated negligence, this would not raise a
genuine issue of material fact as to whether the officer acted recklessly. Id. at 843,
n. 11.
The appellate court found that the undisputed evidence showed the officer
was responding to an emergency, had his lights and sirens activated, approached a
red light intersection, slowed down and cleared the roadways before proceeding
through the intersection. Id. at 841. On this basis, the appellate court found that
the officer was not reckless as matter of law under Section 101.055 of the Act, and
reversed the denial of the DPS' Plea to the Jurisdiction and rendered judgment
dismissing the plaintiff's claims. Id. at 844; See also City of Laredo v. Varela,
2011 Tex. App. LEXIS 3485 (Tex. App.—San Antonio, 2011, pet. denied)
(reversing district court and finding no fact issue on reckless disregard even where
department review board found the accident to be preventable. Actions of officer
in using emergency lights, siren and brakes negated reckless disregard).
18
b. City of Pasadena v. Kuhn
In an almost identical emergency case, a plaintiff collided with a police
officer at an intersection while the officer was responding to an emergency call for
a house fire. Kuhn, 260 S.W.3d at 99-100. The officer's emergency lights and
siren were activated in response to the emergency. Id. The officer approached a
red light intersection and slowed down to clear the adjacent roadways before
proceeding through the intersection. Id. The plaintiff failed to yield the right of
way and collided with the patrol car in the intersection. Id.
The City filed a plea to the jurisdiction pursuant to Section 101.055(2) of the
Texas Tort Claims Act, arguing that it maintained its immunity from suit because
the plaintiff did not plead or prove the officer's actions were reckless or violated
Section 546.001 of the Texas Transportation Code. Id. at 97. In response, the
plaintiff submitted photographs of a "blind spot" on the corner of the intersection
and argued that the intersection was dangerous and that an officer responding to an
emergency call would know or should have known that entering the intersection on
a red light with this blind spot would create a high degree of risk of injury. Id. 97-
98. There was a factual dispute over whether the officer slowed down or stopped
before entering the intersection, but it was undisputed that the officer was driving
faster than the speed limit. Id. at 98. The plaintiff argued that the evidence of the
dangerous configuration of the intersection and the undisputed fact that the officer
19
was speeding was sufficient to show that the officer was driving recklessly. Id.
The trial court denied the city's plea to the jurisdiction on this basis. Id. at 95.
On appeal, the appellate court applying the "reckless disregard" test
established by the Texas Supreme Court in City of Amarillo v. Martin, reversed the
trial court's order and rendered judgment for the city. Id. at 101. The appellate
court held that the undisputed evidence that the officer was responding to an
emergency, had his lights and sirens activated, and slowed down and cleared the
roadways before proceeding through the intersection was insufficient to show
reckless conduct or that the officer lacked regard for the safety of others as a matter
of law. Id. The court further noted that it did not matter whether the officer had
stopped or slowed down at the intersection, because the officer was only required
to slow down as necessary for safe operation under Section 546.001(2) of the
Texas Transportation Code. Id. at 100.
c. Smith v. Janda
Finally, in another similar emergency case, the San Antonio Court of
Appeals reversed a trial court's denial of a city's motion for summary judgment
because the city was immune from suit pursuant to Section 101.055(2) of the Act.
Janda, 126 S.W.3d at 543. The court further held that a driver who operated an
ambulance in conformity with the provisions of the Texas Transportation Code did
not act recklessly as a matter of law. Id. In that case, an ambulance driver was
20
driving an ambulance in an emergency situation with the lights and sirens
activated. Id. at 546. As he approached an intersection, he slowed down and
looked around. Id. He perceived that traffic had stopped or was yielding to him
and proceeded into the intersection without coming to a complete stop. Id.
Moving for summary judgment, the city sought to establish that the driver
was not reckless as a matter of law and that no subject matter jurisdiction existed
because the city was immune from suit. Id. at 545-56. In response, the plaintiff
argued that there was a fact dispute about whether or not the ambulance driver ran
the red light and whether or not the plaintiff had the right of way. Id. After
reviewing the evidence, the appellate court found that the driver was in an
emergency situation with his lights and sirens activated, other drivers at the
intersection could hear and see the lights and sirens, the driver slowed down at the
intersection and cleared the other roadways, and proceeded through the intersection
without coming to a complete stop. Id.
Applying the Texas Supreme Court's "reckless disregard" test, the appellate
court found that the ambulance driver was not reckless as matter of law under
Section 101.055(2) of the Act, because he was responding to an emergency,
activated his ambulance's lights and siren, slowed when approaching intersection
and observed drivers yielding to ambulance. Id. Further, the San Antonio Court of
Appeals also noted that the Texas Transportation Code entitles emergency vehicle
21
operators to presume that other motorists will "respect emergency vehicle
priorities" and heed to audible or visual emergency signals. Id. at 546 (citing
Martin, 971 S.W.2d at 431) (also citing TEX. TRANSP. CODE ANN. § 546.001(2)).
Like the officers in Kuhn, Sparks, and Varela, and the ambulance driver in
Smith, the conduct of Officer Kunz has not and cannot be shown to be reckless as a
matter of law in that she was responding to an emergency incident, had her
emergency lights and siren on, and clearly slowed down as she proceeded into the
intersection in question. (CR 30-33, 35-36). As stated by the Texas Supreme
Court, "civilian drivers generally have an advantage in anticipating and preventing
a collision" due to the fact that emergency vehicles "stand out" from other
vehicles. Martin, 971 S.W.2d at 432. Even though a fact question may exist as to
whether Officer Kunz was negligent on the occasion, this is not enough to
demonstrate that she acted recklessly or with conscious disregard for the safety of
others for immunity to be waived in this instance. Kuhn, 260 S.W.3d at 100;
Hudson, 179 S.W.3d at 701-02 (holding no evidence of reckless disregard for
safety of others when officer entered intersection without stopping and witness did
not hear brakes being applied); Janda, 126 S.W.3d at 545-46.
d. No Evidence of Recklessness
As discussed, the City conclusively showed that Officer Kunz was not
reckless as a matter of law because (1) she was responding to an emergency, (2)
22
had her emergency lights and siren activated, and (3) slowed down and cleared the
roadway as necessary to proceed safely through the neighborhood intersection.
The court erred in denying the City's Plea to the Jurisdiction because Plaintiff's
expert opinion is no evidence that Officer Kunz acted recklessly and does not raise
a genuine issue of material fact in order for government immunity to be waived.
Like the accident reconstruction expert opinion in Sparks, Chief Kowalski's
expert report and opinion amount to nothing more than surmise and speculation
and are not evidence that Officer Kunz acted recklessly. Specifically, Chief
Kowalski continuously uses the term "reckless" when forming his opinions, but
fails to define reckless or apply the reckless standard established by the Texas
Supreme Court in City of Amarillo v. Martin. (CR 67-70). In addition, like
Sparks, Chief Kowalski's allegations may demonstrate that Officer Kunz was
negligent on the occasion, but is not evidence of recklessness. See Sparks, 347
S.W.3d at 843, n. 11. For example, Chief Kowalski states that because Officer
Kunz was a few blocks behind Officer O'Bryant, a question of the criticality of
Officer Kunz's driving tactics is raised. (CR 67). Such argument lacks merit, as
the distance between Officer Kunz and Officer O'Bryant has no relevance to
Officer Kunz's driving tactics. Chief Kowalski also opines that safety protocol
allows the first officer to arrive at a scene to await the arrival of a second officer
and thus Officer Kunz had no reason to be operating her vehicle in a reckless
23
manner. (CR 67). Whether or not Officer O'Bryant had the ability to wait for the
arrival of Officer Kunz to the dispatch call location is irrelevant as to whether
Officer Kunz's actions in driving to the scene were reckless. In addition, Chief
Kowalski misconstrues Texas law by claiming that Plaintiff had the right-of-way
because there was no traffic control device at the intersection governing the
direction Plaintiff was traveling. (CR 68). Texas law is unequivocally clear that a
peace officer has the right-of-way at an intersection when operating under
emergency circumstances. Martin, 971 S.W.2d at 432; TEX. TRANSP. CODE §§
545.156 and 546.001 et seq. Whether or not Officer Kunz was negligent is
immaterial because a reckless finding is necessary before Plaintiff can recover in
this emergency response case and Chief Kowalski's report and testimony offers no
evidence as to "recklessness."
Moreover, as in Sparks, Chief Kowalski's conclusory opinion that Officer
Kunz was reckless because she did not come to a complete stop at the intersection
is no evidence that Officer Kunz acted recklessly or violated Section 546.001(2) of
the Texas Transportation Code, which specifically allows an officer to "proceed
past a red light after slowing as necessary for safe operation." (CR 68, 70); See
Kuhn, 260 S.W.3d at 100; Hudson, 179 S.W.3d at 701-02 (holding no evidence of
reckless disregard for safety of others where officer entered intersection without
stopping and witness did not hear brakes being applied); Janda, 126 S.W.3d at 543
24
(holding that evidence was insufficient to establish recklessness when ambulance
driven to emergency with lights and sirens and slowed down without coming to a
complete stop at an intersection);
Furthermore, Chief Kowalski claim that Officer Kunz was traveling at a
reckless speed prior to the incident because the "patrol car is seen bouncing into
the air as it travels over a hump at a reckless speed," is pure speculation and not
supported by any evidence of Officer Kunz's speed prior to the intersection. (CR
70). As in Sparks, the patrol car video does not contain footage or images of the
speedometer in order to independently confirm Chief Kowalski's unsupported
claims that Officer Kunz "failed to alter her speed in any meaningful way." (CR
70); compare Sparks, 347 S. W.3d at 843; Kuhn, 260 S.W.3d at 101. As in Sparks
and Kuhn, Chief Kowalski's unsupported claims regarding Officer Kunz's speed
before and/or during the incident is no evidence that Officer Kunz acted recklessly.
Kunz, 260 S.W.3d at 100 (conclusory statements that officer was driving at a high
rate of speed was insufficient to raise fact issue as to "reckless disregard.").
Finally, Chief Kowalski's reliance on witness testimony and reports citing
Officer Kunz for not stopping at the stop sign and referencing Officer Kunz's
verbal counseling/reprimand after the incident is also no evidence that Officer
Kunz acted recklessly. (CR 69-70); See Hudson, 179 S.W.3d at 702; Barnes, 2008
Tex. App. LEXIS 2236, at *11-15 (holding written reprimand stating that officer
25
failed to exercise due care and failed to comply with transportation code did not
raise fact issue on reckless disregard); See also Varela, 2011 Tex. App. LEXIS
3485, at*12-14 (reversing district court and finding no fact issue on reckless
disregard even where department review board found the accident to be
preventable because actions of officer in using emergency lights, siren and brakes
negated reckless disregard).
Accordingly, the City is entitled to immunity because it has conclusively
shown that Officer Kunz was not reckless as a matter of law because she was (1)
responding to an emergency, (2) had her emergency lights and sirens activated, (3)
slowed down as necessary in entering the intersection in conformity with Section
546.001(2) of the Texas Transportation Code. Moreover, Plaintiff failed to raise a
genuine issue of material fact that Officer Kunz acted recklessly, because Chief
Kowalski's conclusory report is no evidence that Officer Kunz's actions were
reckless or made without regard to public safety in violation of Section 101.055(2).
Therefore, the City is immune from suit and the trial court erred in denying the
City's Plea to the Jurisdiction because the court is without subject matter
jurisdiction to determine the subject in controversy.
V. ISSUE NO. 2: THE CITY IS ENTITLED TO OFFICIAL IMMUNITY
BECAUSE OFFICER KUNZ ACTED IN GOOD FAITH AND A
REASONABLY PRUDENT POLICE OFFICER, UNDER THE
CIRCUMSTANCES, WOULD HAVE REACHED THE SAME
DECISION.
26
The Court erred in denying the City's Traditional Motion for Summary
Judgment because Officer Kunz is entitled to official immunity for her
discretionary acts performed in good faith within the scope of her authority, and
City is entitled to summary judgment because the official immunity of Officer
Kunz precludes vicarious liability under Plaintiff's theory of respondeat superior.
A. Officer Kunz is Entitled to Official Immunity and the City is
Entitled to Sovereign Immunity
The court erred in denying the City's Traditional Motion for Summary
Judgment because Officer Kunz is entitled to official immunity for discretionary
acts performed in good faith within the scope of her authority as a police officer
and Officer Kunz's official immunity precludes the City from vicarious liability
under Plaintiff's theory of respondeat superior.
Official immunity is an affirmative defense that protects governmental
employees from personal liability. Chambers, 883 S.W.2d at 653. A
governmental employee is entitled to official immunity (1) for the performance of
a discretionary duty; (2) within the scope of the employee's authority, (3) provided
that the employee acts in good faith. Id. at 653. When official immunity shields a
governmental employee from liability, sovereign immunity shields the
governmental employer from vicarious liability as well. DeWitt, 904 S.W.2d at
653.
27
1. Officer Kunz Performed Discretionary Duties within Her
Scope of Authority
Public officials and employees are not liable for discretionary acts
performed in good faith within the scope of their authority. Torres v. Owens, 380
S.W.2d 30, 34-36 (Tex. Civ. App.—Corpus Christi 1964, writ refused n.r.e.). An
act is discretionary if it requires personal deliberation, decision and judgment.
Chambers, 883 S.W.2d at 654. In this instance, Officer Kunz was on duty acting
within her authority as a police officer in responding to the domestic disturbance
call involving a deadly weapon. Officer Kunz exercised her discretion and
personal judgment in deciding how to get to the disturbance as quickly and safely
as possible as police officers, firefighters, and ambulance drivers are entrusted to
do.
2. Officer Kunz Acted in Good Faith
Public officials and employees are entitled to official immunity for their
discretionary actions, even if they misinterpret the law, as long as their actions
were taken in good faith. Owens, 380 S.W.2d at 34-36. Good faith is measured by
how a reasonably prudent officer could have assessed both the "need" to which an
officer responds, and the "risk" of the officer's course of action based on the
officer's perception of the facts at the time of the event. Chambers, 883 S.W.2d at
656. In Chambers, the Texas Supreme Court recognized the competing interests
involved in good faith cases and created a "good faith" test that focuses on both the
28
injustice of imposing liability on police officers whose job requires them to
exercise discretion, and the danger that such liability will deter their willingness to
exercise their discretion for the public good. Id. at 665. These concerns are also
balanced against the need for public safety. Id.
In the context of emergency response cases, the Texas Supreme Court
elaborated on the Chamber 's good faith test providing guidance on both the "need"
and "risk" aspects of the test:
"The "need" aspect of the test refers to the urgency of the
circumstances requiring police intervention. In the context of an
emergency response, need is determined by factors such as the
seriousness of the crime or accident to which the officer responds,
whether the officer's immediate presence is necessary to prevent
injury or loss of life or to apprehend a suspect, and what alternative
courses of action, if any, are available to achieve a comparable result.
The "risk" aspect of good faith, on the other hand, refers to the
countervailing public safety concerns: the nature and severity of harm
the officer's actions could cause (including injuries to bystanders as
well as the possibility that an accident would prevent the officer from
reaching the scene of the emergency), the likelihood any harm would
occur, and whether any risk of harm would be clear to a reasonably
prudent officer."
Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997).
Typically, Texas courts have granted summary judgment and pleas to the
jurisdiction in favor of governmental entities once an officer's good faith is
established — when a reasonably prudent officer, under same or similar
circumstances, could have believed that the need to respond to the emergency
29
outweighed a clear risk of harm to the public, and have held that good faith may be
established by the officer's own affidavit or testimony. See Mem? Villages Police
Dep't v. Gustafson, 2011 Tex. App. LEXIS 6595 (Tex. App.—Houston [1st Dist.]
2011, no pet.) (plea to the jurisdiction granted because the officer's affidavit
showed he considered alternative courses of action and the facts demonstrated a
need to immediately apprehend the driver); City of Dallas v. Garcia, 1998 Tex.
App. LEXIS 1785 (Tex. App.—Dallas 1998, no pet.); State v. McGeorge, 925
S.W.2d 105 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (summary
judgment granted where the State established good faith and demonstrated a
reasonably prudent officer might have believed to continue the pursuit); Barker v.
City of Galveston, 907 S.W.2d 879, 888 (Tex. App.—Houston [1st Dist.] 1995, writ
denied).
3. City of San Angelo Fire Department v. Hudson
In Hudson, a city fire truck was dispatched in response to a fire at a daycare
center. Hudson, 179 S.W.3d at 697. The fire truck had its emergency lights and
sirens activated and was a few blocks away from the daycare center when the
driver came to a red light intersection. Id. The driver slowed down as he
approached the intersection and observed the traffic stopped in all directions. Id.
The driver believed the traffic was yielding for the fire truck and entered the
intersection against a red light. Id. The plaintiff had a green light and collided
30
with the fire truck in the intersection. Id. The plaintiffs claimed she did not hear
the sirens or see the emergency lights when she entered the intersection. Id. at 701.
The plaintiff filed suit against the city and the city moved for summary
judgment asserting that the plaintiffs claims were barred by official immunity
because the driver was acting in good faith in the performance of his discretionary
duties as a city employee. Id. at 698. In support of summary judgment, the city
submitted an affidavit from the fire truck driver discussing the risks he considered
when entering the intersection against the light and his perceived need to respond
quickly to the emergency. Id. at 705-06. The driver was aware that traffic was
congested and that the traffic light stayed red as he approached the intersection. Id.
The driver considered the fact that a collision could occur if someone did not hear
the sirens and air horn, or see the emergency lights. Id. The driver also considered
the fact that a collision might prevent him from timely reaching the scene to offer
aid. Id. The driver weighed these risks against the perceived need to respond to
the emergency as quickly as possible because he was the closest unit to the daycare
center. Id.
In her response to the city's motion, the plaintiff argued that the driver was
not performing a discretionary function in responding to the call because he did not
choose whether or not to respond to the call. Id. at 704. The plaintiff also argued
that the need and risk involved did not meet the Chamber's good faith test because
31
other fire trucks had already arrived at the daycare center and there was no need for
the driver to enter the intersection against the red light. Id. at 705. The trial court
questioned whether the driver's affidavit conclusively met the good faith test and
whether the driver was performing a discretionary act and denied the city's motion
for summary judgment. Id. at 699.
After reviewing the evidence submitted by the parties on summary
judgment, the Austin Court of Appeals reversed the trial court's order denying the
city's motion and rendered judgment in favor of the city. Id. at 707. The court
found the driver's affidavit conclusively demonstrated that he considered the risks,
looked for traffic that might pose a danger, and weighed the risks and need before
proceeding through the light, and that a reasonable fire truck driver could have
believed the need to reach the scene of the emergency was compelling under the
circumstances. Id. at 705.
4. Affidavit and Testimony of Officer Kunz
a. Imminent Need
In the present case, the "need" to respond to the domestic disturbance call as
quickly as possible is obvious in that Officer Kunz and Officer O'Bryant were
responding to an ongoing fight between two individuals involving deadly weapons
in a household with children. (CR 35). According to Officer Kunz's Affidavit,
Officer Kunz also believed it was a priority for her to respond to the scene as
32
quickly as possible in order to safely support her fellow officer due to the
dangerous nature of the call and the fact that weapons were involved. (CR 35-36).
Clearly, a reasonable police officer could have believed that their was an imminent
need to respond to the scene as quickly as possible to prevent further deadly
violence and assist a fellow officer secure the scene safely.
b. Immediate Danger Outweighed Risk
In addition, the "risk" factors weigh in Officer Kunz's favor and her
deposition testimony and affidavit demonstrate that she considered and weighed
the risks against the perceived need. According to Officer Kunz's Affidavit,
Officer Kunz and Officer O'Bryant responded to the call from separate locations
and Officer Kunz was forced to navigate through several city streets before she
was able to pull behind Officer O'Bryant. (CR 35). Both Officer Kunz and
Officer O'Bryant's emergency lights and sirens were activated while they
proceeded through the residential neighborhood towards the scene of the
disturbance. (CR 35). Officer Kunz was several seconds behind Officer O'Bryant
as they approached a one way stop sign. (CR 35-36). Officer Kunz slowed down
three or four car lengths before the stop sign and checked for traffic as Officer
O'Bryant proceeded through the intersection ahead of her. (CR 35-36; Ex. "B,"
pg. 2).
33
Officer Kunz recognized the possibility that if she proceeded through the
stop sign, such action could increase the risk of a collision. (CR 35-36). However,
she also considered that her patrol car's emergency lights and sirens were
activated, she was traveling in a residential neighborhood with little or no traffic,
slowed down before the intersection, and was not traveling at a high rate of speed.
(CR 31-32, 35-36). In addition, she considered the fact that Officer O'Bryant had
traveled through the same intersection only seconds before and believed other
vehicles in the vicinity would have been alerted by Officer O'Bryant's emergency
lights and sirens in addition to her own. (CR 35-36, 41).
Officer Kunz was also entitled to rely on the fact that civilian vehicles have
a duty to yield the right-of-way (irrespective of the current traffic signals) when
she is responding to an immediate emergency with her emergency lights and sirens
activated. (CR 35-36); TEX. TRANSP. CODE § 545.156; See also Janda, 126 S.W.3d
at 546 (transportation code entitles emergency vehicle operators to presume that
other motorists will "respect emergency vehicle priorities").
Taking all of these factors into account, the potential danger posed by
Officer Kunz traveling through the intersection in a residential neighborhood with
little or no traffic was far less than the immediate threat of injury or loss of life
posed by the multiple combatants fighting with weapons in a house with children.
Under the circumstances, a reasonably prudent police officer, under similar
34
circumstances, would have reached the same decision based upon her perception of
the facts at the time. Therefore, Officer Kunz acted in good faith and is entitled to
official immunity as a matter of law. As a result, official immunity bars the
Plaintiff's vicarious liability claims against the City and Plaintiff's claims should
be dismissed with prejudice.
5. Green v. Alford Is Distinguishable From the Present Case
Plaintiff cites to Green v. Alford in his Response to support the position that
Officer Kunz was reckless and acted in bad faith. (CR 54-55). The Green case is
readily distinguishable from the present case because the fire fighters in that case
were responding to an automatic fire alarm which posed no immediate threat of
injury or loss of life and the fire truck driver suffered from a debilitating eye
disease and driving without glasses or corrective lenses. Green v. Alford, 274
S.W.3d 5, 18 (Tex. App.—Houston [14th Dist.] 2008, pet denied).
In Green, the court noted that the fire fighters were responding to an
electronic fire alarm, which the court admitted the overwhelming majority of
which are false alarms and do not require immediate assistance. Id. In
determining bad faith, the court focused primarily on the fact that the driver
suffered from a progressive and debilitating eye disease (not disclosed to his
supervisors), and failed to wear corrective lenses as required by his driver's
license. Id. Other evidence showed that other fire fighters were available to drive;
35
the driver knew that traffic would be heavy at the intersection due to it being
evening rush hour on the Friday before labor day weekend; the driver was
operating a fire truck that weighed 39,500 pounds; and there was a genuine issue of
material fact as to whether the driver was using the fire truck's siren or other
audible warning signal at the time of the collision. Id. at 18-19, 28.
Unlike the firefighter in Green who was responding to an automatic fire
alarm, which did not require the immediate presence of a firefighter, Officer Kunz
was responding to a domestic disturbance with multiple combatants reportedly
involving deadly weapons with a high potential for serious injury or loss of life.
(CR 35). Additionally, Officer Kunz did not have an eye disease or fail to wear
corrective lenses impairing her judgment. Also, Officer Kunz was responding to
the dispatch call location on a sparsely traversed residential street on a Sunday
night at approximately 8:30 p.m., as compared the heavily trafficked intersection at
rush hour in Green. Likewise, Officer O'Bryant proceeded through the
intersection in question a few moments prior to Officer Kunz and should have
alerted vehicles in the vicinity to emergency vehicles in the area. (CR 35-36).
Finally, and perhaps most importantly, unlike the fire fighter in Green, it is
undisputed that Officer Kunz was operating her vehicle's emergency siren at the
time of the accident. Due to the drastic difference in circumstances between Green
36
and the matter in question, Green is inapposite and distinguishable from the facts
in this case.
6. Plaintiff's Expert's Opinion Fails to Offer Any Reliable
Evidence of Bad Faith
Like Plaintiff's failure to sufficiently support a reckless finding against
Officer Kunz, Plaintiff equally fails to demonstrate that Officer Kunz acted in bad
faith. Good faith is measured by how a reasonably prudent officer could have
assessed both the need to which an officer responds and the risk of the officer's
course of action based on the officer's perception of the facts at the time of the
event. Chambers, 883 S.W.2d at 656. In Chambers, the Texas Supreme Court
held an officer does not have to prove that the officer's actions were unreasonable
or that all reasonably prudent officers would have proceeded in the same way. Id.
Instead, the officer must prove only that a reasonably prudent officer might have
believed he or she should have continued in their course of action. Id. at 656-57.
According to Plaintiff and Kowalski, Officer Kunz acted in bad faith
because she allegedly should have known that her arrival time at the dispatch call
location between a "safe speed" and a "reckless speed" would have been
substantially the same. (CR 67, 70). This argument fails for a number of reasons.
First and foremost, Kowalski fails to accurately apply the "need" versus "risk" test
adopted by the Texas Supreme Court in Chambers when opining whether Officer
Kunz acted in good faith. Id. at 653. When properly applying the "need" versus
37
"risk" test to Officer Kunz's actions, it is clear that there was a significant need for
Officer Kunz to reach the dispatch call location as soon as possible given the
presence of multiple combatants with weapons in a house with children and the
high potential for serious injury or loss of life. (CR 35-36). This need outweighed
the potential risk posed by Officer Kunz traveling through a stop sign in a
residential neighborhood at night with little or no traffic.
Second, because of the potential presence of deadly weapons, the difference
between reaching the dispatch call location as quickly as possible as opposed to a
few moments later could have been the difference between life or death. As a
result, there was a compelling reason for Officer Kunz to reach the dispatch call
location as quickly as possible.
Third, from his review of the patrol car dash camera video, Chief Kowalski
speculates that Officer Kunz was traveling at a reckless and high rate of speed
before the intersection because the "patrol car is seen bouncing into the air as it
travels over a hump at a reckless speed." (CR 70). Based upon this opinion, Chief
Kowalski concludes that Officer Kunz's arrival time would have been substantially
the same at a "safe speed" versus a "reckless speed." (CR 67). Chief Kowalski's
opinion is not based upon any evidence beyond his own speculation and fails to
identify what a safe speed would have been under the circumstances as compared
to a reckless speed. Moreover, Officer Kunz's speed at the time of the incident
38
cannot be independently confirmed because the speedometer is not shown in the
dash camera video. Compare Sparks, 347 S.W.3d at 843, n.10. Given Plaintiff has
failed to offer evidence that no reasonably prudent officer in Officer Kunz's
position could have thought that the facts justified her conduct, Officer Kunz is
entitled to official immunity. See Clark, 38 S.W.3d at 581.
C. Public Policy Underlying Official Immunity
Furthermore, there are significant public policy concerns underlying police
officer's official immunity in police emergency response cases, as recognized by
the Texas Supreme Court. "[T]he public would suffer if government officers, who
must exercise judgment and discretion in their jobs, were subject to civil lawsuits
that second-guessed their decisions." Telthorster v. Tennell, 92 S.W.3d 457, 463
(Tex. 2002). Thus, official immunity is designed to protect public officials from
being forced to defend their decisions that were reasonable when made, but upon
which hindsight has cast a negative light. Id. Further, police officers' particular
need for immunity's protection is well-recognized: "nowhere else in public service
is official immunity more appropriate or necessary than in police work. In their
routine work, police officers must be free to make split-second judgments . . .
based on their experience and training, without fear of personal liability." Id.
(citing Travis v. City of Mesquite, 830 S.W.2d 94, 103 (Tex. 1992) (Cornyn, J.,
concurring)). If police officers were subject to liability for every mistake, the
39
constant threat of suit could "dampen the ardor of all but the most resolute, or the
most irresponsible officers." Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982).
These public-policy concerns in large part underlie the good faith test articulated
by the Texas Supreme Court in Chambers.
Accordingly, the court erred in denying the City's Traditional Motion for
Summary Judgment because Officer Kunz's discretionary actions, weighing the
needs and risks associated with responding to the domestic disturbance call, were
performed in good faith within the scope of her authority as a police officer and,
therefore, Officer Kunz is entitled to official immunity which precludes the City
from vicarious liability under Plaintiff's theory of respondeat superior.
CONCLUSION
The trial court erred in denying the City's Plea to the Jurisdiction and
Traditional Motion for Summary Judgment because the Plaintiff failed to raise a
genuine issue of material fact that Officer Kunz acted recklessly or acted in bad
faith. The City is immune to suit and the court is without subject matter
jurisdiction to determine the subject in controversy.
PRAYER
For these reasons, Appellant Bay City, Texas respectfully prays that this
Court reverse the trial court's March 6, 2015 Order Denying the City's Plea to the
Jurisdiction and render a take-nothing judgment against Plaintiff/Appellee Wade
40
McFarland. Appellant prays for any further relief, in law or equity, to which it
may show itself to be justly entitled.
Respectfully submitted,
GORDON & REES, LLP
By: /s/ Steven D. Selbe
STEVEN D. SELBE
State Bar No. 18004600
sselbe@gordonrees.com
ANDREW J. PRATKA
State Bar No. 24079159
apratka@gordonrees.com
1900 West Loop South, Suite 1000
Houston, Texas 77027
Telephone: (713) 961-3366
Facsimile: (713) 961-3938
ATTORNEYS FOR BAY CITY, TEXAS
CERTIFICATE OF COMPLIANCE UNDER TEX. R. APP. P. 9.4(I)(3)
This brief complies with the word limitation of TEx. R. APP. P. 9.4(i)(2)(B)
because it contains 9,510 words.
Is! Steven D. Selbe
Steven D. Selbe
41
CERTIFICATE OF SERVICE
This is to certify that on this 11th day of May, 2015, a true and correct copy
of the foregoing was served on the counsel and parties identified below in
accordance with the Texas Rules of Civil Procedure:
David Ramagosa
Farrar & Ball, LLP
1010 Lamar, Suite 1600
Houston, Texas 77002
Attorney for Plaintiff Wade McFarland
/s/ Steven D. Selbe
STEVEN D. SELBE
42
Bay City, Texas v. Wade McFarland
Combined Opinion