the City of San Antonio v. Armando D. Riojas

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-19-00220-CV

THE CITY OF SAN ANTONIO,
Appellant

v.

Armando D. RIOJAS,
Appellee

From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CI13534
Honorable David A. Canales, Judge Presiding

Opinion by: Beth Watkins, Justice
Dissenting Opinion by: Luz Elena D. Chapa, Justice

Sitting: Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Beth Watkins, Justice

Delivered and Filed: February 26, 2020

AFFIRMED

The City of San Antonio appeals an order denying its plea to the jurisdiction. The City

argues the trial court erred in denying its plea because it is immune from appellee Armando D.

Riojas’s claims that he suffered injuries arising from San Antonio Police Department Officer

Vincent Tristan’s operation or use of his patrol vehicle. We affirm the trial court’s order.

BACKGROUND

On the afternoon of February 17, 2017, Officer Tristan was driving his patrol vehicle on

Interstate Highway 37 South. The stretch of highway where Officer Tristan was driving consists
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of three main lanes for southbound traffic and a fourth exit lane on the right side of the highway.

In his affidavit, Officer Tristan stated that as he moved into the exit lane, traffic seemed to be

slowing for no obvious reason, so he activated his vehicle’s emergency lights. This caused the

vehicle’s camera to begin recording, and the resulting video starts approximately 30 seconds

before Officer Tristan turned on his lights. Officer Tristan’s microphone was activated shortly

thereafter. It is undisputed that Officer Tristan was driving his vehicle when he activated his lights.

Officer Tristan’s affidavit states that “[a]bout the time [he] turned on [his] lights,” he saw

a white car driven by Jolean Olvedo “crossing several lanes of traffic in an attempt to exit.” The

police report does not include this detail, but the video shows Olvedo moving into the far-right

main lane and braking for unknown reasons. The video also shows another car next to Olvedo—

which was also white—merging into her lane, cutting her off, and briefly stopping before driving

away. Olvedo then suddenly crossed two solid white lines separating the exit lane from the three

main lanes and exited the highway. This abrupt exit is the first act by Olvedo noted in the police

report. Olvedo told SAPD officers that she exited suddenly because the driver of the other white

car cut her off. Officer Tristan concluded, however, that Olvedo “made an improper lane change

and impeded traffic behind her,” so after Olvedo exited, Officer Tristan radioed a nearby officer

to pull her over and ticket her.

While Officer Tristan was watching Olvedo in the right lane, Riojas was driving his

motorcycle in the far-left lane directly behind a car driven by Klaryssa Vela. Riojas and Vela were

behind Officer Tristan. Riojas saw Vela braking, so he took evasive action to avoid hitting her. He

then lost control of his motorcycle, fell off, and came to rest near a concrete barrier. Meanwhile,

his motorcycle slid and hit the back of Vela’s car. Officer Tristan saw Riojas’s motorcycle sliding

without a rider, and at the 00:57 mark of the video—approximately twenty-seven seconds after he

activated his lights—he can be heard telling the dispatcher, “I’ll be out here with a major,

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motorcycle involved on 37.” He then maneuvered his vehicle from the right side of the highway,

where he had previously stopped after he turned on his lights, onto the left side of the highway

where Riojas was located. In the video, Officer Tristan can be heard remarking as he drove toward

Riojas that a white car that “stopped right in the middle of the freeway”—presumably Olvedo or

the other white car that cut her off—“is the one that caused this accident.”

In addition to Officer Tristan, three other people—Vela and two unidentified men—

stopped to help Riojas. The unidentified men (“the eyewitnesses”) approached Officer Tristan and

told him they believed the wreck was his fault. One eyewitness said, “You scared everybody on

the street by turning the [emergency] lights on for no reason.” Officer Tristan again remarked,

“That white car stopped in the middle of the freeway,” and told the eyewitnesses, “Don’t be saying

that it was my fault.” One of the eyewitnesses responded, “I’m just saying, what you did caused

this.” Officer Tristan then stated, “I saw the bike sliding, that’s when I turned my lights on.” Officer

Tristan’s police report documents the eyewitnesses’ statements, but it does not repeat his statement

that he turned his lights on because he saw Riojas’s wreck. Instead, it recites that Officer Tristan

saw Riojas’s motorcycle “without a rider sliding sideways” after he turned on his lights.

Officer Tristan asked Vela whether she slowed down because of his emergency lights, and

she told him that she slowed because the car in front of her did. The driver of the vehicle in front

of Vela left the scene, has not been identified, and has not provided any evidence in this case. In

his deposition, Riojas testified that he did not see Officer Tristan’s lights until after he fell off his

motorcycle. Because both Vela and Riojas were behind Officer Tristan when he activated his

vehicle’s lights and camera, the video does not show Vela braking, the steps Riojas took to try to

avoid hitting Vela, or Riojas’s fall from his motorcycle.

Riojas sued the City for his injuries. He later amended his petition to add both Olvedo and

the owner of the car she had been driving as defendants. The City filed a plea to the jurisdiction,

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which argued that the City was immune from Riojas’s claims because: (1) the wreck was not

caused by Officer Tristan’s activation of his emergency lights and therefore did not arise from the

operation or use of a motor-driven vehicle; and (2) Officer Tristan performed a discretionary duty

in good faith and was therefore entitled to official immunity. The trial court denied the City’s plea

to the jurisdiction, and this interlocutory appeal followed.

ANALYSIS

Standard of Review

“A plea to the jurisdiction is a dilatory plea that defeats a cause of action whether the claims

have merit or not.” Am. K-9 Detection Servs., LLC v. Freeman, 556 S.W.3d 246, 267 (Tex. 2018).

This court reviews a trial court’s ruling on a plea to the jurisdiction de novo. San Antonio Water

Sys. v. Smith, 451 S.W.3d 442, 445 (Tex. App.—San Antonio 2014, no pet.). When a plea to the

jurisdiction challenges the pleadings, we must determine “if the pleader has alleged facts that

affirmatively demonstrate the court’s jurisdiction to hear the case.” Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe the pleadings liberally in the plaintiff’s

favor. Id. If the pleaded facts do not affirmatively demonstrate the trial court’s jurisdiction but also

do not reveal incurable jurisdictional defects, the plaintiff should be allowed to amend. Id.

However, if the pleadings affirmatively negate the existence of jurisdiction, then the plea may be

granted and the suit dismissed without allowing the plaintiffs an opportunity to amend. Id.

When a plea to the jurisdiction challenges the existence of jurisdictional facts, our review

mirrors that of a traditional summary judgment. Am. K-9, 556 S.W.3d at 267. Where the

jurisdictional issue implicates the merits of the parties’ claims, “we consider relevant evidence

submitted by the parties to determine if a fact issue exists.” Suarez v. City of Tex. City, 465 S.W.3d

623, 632–33 (Tex. 2015). “We take as true all evidence favorable to the nonmovant, indulge every

reasonable inference, and resolve any doubts in the nonmovant’s favor.” Id. If the evidence is

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undisputed or does not raise a fact question, the trial court rules on the plea as a matter of law. Am.

K-9, 556 S.W.3d at 267. However, if the evidence raises a fact question on the jurisdictional issue,

“then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by

the fact finder.” Miranda, 133 S.W.3d at 228.

“[A]rises from the Operation or Use of a Motor-Driven Vehicle”

The City first argues that the trial court erred in denying its plea to the jurisdiction because

there is no evidence that Riojas’s injuries arose from Officer Tristan’s operation or use of his patrol

vehicle. In support of this position, it argues: (1) the eyewitness testimony upon which Riojas relies

to create a fact issue is speculative and conclusory; (2) Officer Tristan’s operation or use of his

patrol vehicle merely created a condition that made the wreck possible; and (3) Officer Tristan’s

operation or use of his patrol vehicle was too attenuated from the wreck to have caused it.

Applicable Law

“Under the common law, municipalities like the City of [San Antonio] are immune from

suit and liability for damages arising from the performance of governmental functions absent a

clear and unambiguous legislative waiver of immunity.” Worsdale v. City of Killeen, 578 S.W.3d

57, 62 (Tex. 2019). The Texas Tort Claims Act (“TTCA”) lists police protection as a governmental

function. TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)(1). The TTCA provides a limited

waiver of liability for, inter alia, personal injury caused by the negligence of a governmental

employee acting within the scope of employment if the injury “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 TTCA does not define

“arises from,” but the Texas Supreme Court has held that an injury arises from a governmental

employee’s negligence if the plaintiff shows a “nexus between the operation or use of the motor-

driven vehicle or equipment and [the] plaintiff’s injuries.” Dall. Area Rapid Transit v. Whitley,

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104 S.W.3d 540, 543 (Tex. 2003). The supreme court has “described the threshold as something

more than actual cause but less than proximate cause.” Ryder Integrated Logistics, Inc. v. Fayette

County, 453 S.W.3d 922, 928–29 (Tex. 2015). “‘[A]rise out of’ means . . . there is but[-]for

causation, though not necessarily direct or proximate causation.” Id. at 929 (internal quotation

marks omitted). The necessary causal nexus requires a showing that the use of the vehicle actually

caused the injury. Whitley, 104 S.W.3d at 543. However, the use of a vehicle “does not cause injury

if it does no more than furnish the condition that made the injury possible.” Id. A plaintiff must

show “negligent or otherwise improper use of a motor-driven vehicle.” Ryder, 453 S.W.3d at 928.

Application

1. The City’s challenges to the eyewitnesses’ statements

The City argues that “Riojas offered nothing to raise a fact issue that anything Officer

Tristan did caused Klaryssa Vela or the motorist in front of her to brake.” However, the City itself

introduced a police report and a video containing the two eyewitnesses’ opinions that Officer

Tristan caused the wreck by activating his emergency lights. The City contends these opinions are

speculative and conclusory and therefore amount to no evidence.

An opinion is speculative when it is based on guesswork or conjecture. Nat. Gas Pipeline

Co. v. Justiss, 397 S.W.3d 150, 156 (Tex. 2012); Rife v. Kerr, 513 S.W.3d 601, 615 (Tex. App.—

San Antonio 2016, pet. denied). An opinion is not speculative if it is rationally based on an

eyewitness’s perception. In re Molina, 575 S.W.3d 76, 81–82 (Tex. App.—Dallas 2019, orig.

proceeding); see also TEX. R. EVID. 701(a). “The requirement that an opinion be rationally based

on the perceptions of the witness is composed of two parts: (1) the witness must establish personal

knowledge of the events from which his opinion is drawn; and (2) the opinion drawn must be

rationally based on that knowledge.” Dodson v. Munoz, No. 04-17-00409-CV, 2018 WL 3747748,

at *6 (Tex. App.—San Antonio Aug. 8, 2018, no pet.) (mem. op.) (internal quotation marks

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omitted). An opinion satisfies the personal knowledge requirement “‘if it is an interpretation of the

witness’s objective perception of events,’” and it is rationally based on the witness’s personal

knowledge “‘if a reasonable person could draw that opinion under the circumstances.’” Id.

(quoting Merrill v. Sprint Waste Servs. LP, 527 S.W.3d 663, 670 (Tex. App.—Houston [14th Dist.]

2017, no pet.)); see also Health Care Serv. Corp. v. E. Tex. Med. Ctr., 495 S.W.3d 333, 339 (Tex.

App.—Tyler 2016, no pet.) (“‘Rationally based’ means that the opinion must be one that a person

could normally form from observed facts.”).

Here, it is undisputed that the eyewitnesses were physically present on Interstate Highway

37 in the moments leading up to the wreck and immediately afterward. Although Riojas and Vela

stated they did not see Officer Tristan’s lights before the wreck, the video shows that the

eyewitnesses, in contrast, did claim to have personally witnessed the activation of Officer Tristan’s

emergency lights before the wreck. This is some evidence that the eyewitnesses personally

observed the traffic conditions in the moments leading up to the activation of Officer Tristan’s

emergency lights. Based on their perception of those conditions, they concluded that there was “no

reason” for Officer Tristan to have turned on his lights. See Dodson, 2018 WL 3747748, at *6. It

can also reasonably be inferred that the eyewitnesses observed the contemporaneous reaction of

their fellow motorists to this unexpected—and, in their view, unwarranted—display of emergency

lights. See id. It was rational for them to conclude that Officer Tristan “scared everybody on the

street”—including themselves—and, by doing so, caused Riojas’s wreck. See id.; see also Molina,

575 S.W.3d at 81–82. As a result, we conclude that the eyewitnesses’ opinions were not

speculative.

For similar reasons, we conclude that the eyewitnesses’ opinions were not conclusory. A

lay witness’s opinion is conclusory if it “does not provide the underlying facts to support the

conclusion.” Neal v. Machaud, No. 04-06-00037-CV, 2006 WL 3612867, at *3 (Tex. App.—San

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Antonio Dec. 13, 2006, no pet.) (mem. op.); see also Justiss, 397 S.W.3d at 156 (opinion is

conclusory if it “state[s] a conclusion without any explanation”) (internal quotation marks

omitted). Additionally, “[c]onclusory statements are not susceptible to being readily

controverted.” In re S.N., Jr., Nos. 05-16-01010-CV, 05-16-01033-CV, 05-16-01034-CV, 05-16-

01035-CV, 2017 WL 343599, at *3 (Tex. App.—Dallas Jan. 18, 2017, pet. denied) (mem. op.).

As noted above, the eyewitnesses based their opinions about Officer Tristan’s fault on their

perceptions that there was “no reason” for Officer Tristan to activate his lights and that he “scared

everybody on the street” by doing so. See Dodson, 2018 WL 3747748, at 6–7; see also Molina,

575 S.W.3d at 81–82. Additionally, by relying on Vela’s conflicting statements to challenge those

opinions, the City has demonstrated that the opinions are susceptible to being readily controverted.

See In re S.N., 2017 WL 343599, at *3; see also Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989).

Because these opinions are rationally based on the eyewitnesses’ perception of the underlying facts

and are susceptible to being readily controverted, they are not conclusory. See Dodson, 2018 WL

3747748, at 6–7; In re S.N., 2017 WL 343599, at *3.

At most, the City’s complaints about the eyewitnesses’ statements go to the weight and

credibility to be given to that evidence. Cf. Keo v. Vu, 76 S.W.3d 725, 734 (Tex. App.—Houston

[1st Dist.] 2002, pet. denied) (“[F]actual weaknesses underlying an expert’s causation opinion

generally go to the testimony’s weight . . . the opinion is no evidence only if based completely

upon speculation and surmise.”) (emphasis in original); see also Wal-Mart Stores, Inc. v. Garcia,

974 S.W.2d 83, 87 (Tex. App.—San Antonio 1998, no pet.). Decisions about whether to credit a

witness’s opinion and the weight to give to that opinion are reserved for the factfinder. See City of

Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). While Vela and Riojas stated that they

personally did not see Officer Tristan’s lights before the wreck, we conclude that a reasonable

factfinder could believe the eyewitnesses’ assertion that the other drivers on Interstate Highway

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37 were “scared” by Officer Tristan’s activation of his lights before Riojas fell from his

motorcycle, even if Vela and Riojas personally were not. As a result, under the applicable summary

judgment standard, any conflict between Vela’s and Riojas’s statements and the eyewitnesses’

perception cannot be resolved as a matter of law on a jurisdictional plea. See id.; see also Bandera

County v. Hollingsworth, 419 S.W.3d 639, 643 (Tex. App.—San Antonio 2013, no pet.). Because

we must view the evidence in the light most favorable to Riojas and indulge every reasonable

inference in his favor, we hold that the trial court did not err by concluding the eyewitnesses’

opinions presented more than a scintilla of evidence that this wreck would not have occurred but

for Officer Tristan unexpectedly and inexplicably activating his emergency lights. We therefore

overrule this challenge to the trial court’s order.

2. The City’s argument that Officer Tristan’s use of his vehicle was merely a condition that
made the wreck possible

The City also argues that even if Officer Tristan’s use of his lights played a role in the

wreck, that conduct merely created a condition that made the wreck possible. In Ryder, we applied

a similar analysis and concluded that the plaintiff’s claim that other drivers were distracted by a

sheriff’s deputy’s headlights “seems to be more properly classified as a condition that made the

accident possible than as the actual cause of the accident itself.” Ryder Integrated Logistics, Inc.

v. Fayette County, 414 S.W.3d 864, 869 (Tex. App.—San Antonio 2013, pet. granted), rev’d, 453

S.W.3d 922 (Tex. 2015). However, the supreme court rejected that conclusion because it was

undisputed that the deputy “was driving—and thus operating—his vehicle at the time the accident

occurred.” Ryder, 453 S.W.3d at 930. The supreme court concluded that the plaintiff had therefore

“alleged an injury arising from the tortious operation or use of a vehicle.” Id. Here, just like in

Ryder, it is undisputed that Officer Tristan was driving his vehicle when he turned on his

emergency lights and at the moment of Riojas’s wreck. See id. In other words, by arguing that

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Officer Tristan’s conduct merely created a condition that made the wreck possible, the City has

asked us to reach the same conclusion the supreme court rejected in Ryder. See id. We decline to

do so.

A situation where conduct “merely furnish[es] a condition that made the accident

possible . . . generally arises when the forces that a person’s negligence has set into motion have

come to rest and then some new catalyst causes an injury.” Molina, 575 S.W.3d at 82. In Grisham,

a case upon which the City heavily relies—and which we relied on in Ryder for the proposition

the supreme court rejected—the plaintiffs were injured in a wreck that occurred when they

switched lanes after seeing a state trooper’s emergency lights. See Tex. Dep’t of Pub. Safety v.

Grisham, 232 S.W.3d 822, 826 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see also Ryder,

453 S.W.3d at 930. The trooper activated his lights because a parked car was blocking the left lane

of traffic, but unbeknownst to the plaintiffs, he had positioned his cruiser on the opposite side of

the highway. Grisham, 232 S.W.3d at 826. When the plaintiffs changed lanes to move away from

the cruiser, they hit the parked car. Id. at 824. Both the trooper’s lights and the positions of the two

stopped vehicles were conditions that already existed at the scene before the plaintiffs arrived. See

id. Under those facts, the Fourteenth Court of Appeals held that the trooper’s use of his emergency

lights and his positioning of the cruiser “did not actually cause the injury,” but “merely furnished

the condition that made [the] injury possible” because the plaintiffs could have reduced their speed

in response to the emergency lights instead of changing lanes. Id. at 827.

Here, in contrast, there is some evidence that Riojas’s wreck occurred contemporaneously

or nearly contemporaneously with Officer Tristan’s activation of his lights, 1 under circumstances

1
The dissent contends that “[n]o evidence in the record supports this leap.” However, at the 00:57 mark of the video—
approximately twenty-seven seconds after Officer Tristan activated his lights—Officer Tristan acknowledges a
“major, motorcycle involved” wreck “on 37.” By that time, Officer Tristan had pulled onto the shoulder and begun to
move his patrol vehicle toward Riojas’s wreck.

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that made two eyewitnesses independently conclude that Officer Tristan’s operation or use of his

vehicle triggered the wreck. See Molina, 575 S.W.3d at 82 (“Here, according to [an eyewitness’s]

testimony, [the tortfeasor’s] conduct almost immediately caused the traffic accident.”). For that

reason, Grisham is distinguishable and does not support the City’s argument that Officer Tristan’s

operation or use of his patrol vehicle merely created a condition that made Riojas’s wreck possible.

See id. Because we hold that the trial court did not err by concluding that the City failed to prove

as a matter of law that Officer Tristan’s operation or use of his vehicle merely furnished a condition

that made the wreck possible, we overrule this challenge to the order denying the City’s plea to

the jurisdiction.

3. The City’s argument that Officer Tristan’s conduct was too attenuated from the wreck to
have caused it

Finally, the City argues that because Riojas’s wreck occurred “three lanes away” from

Officer Tristan’s patrol vehicle, and because Riojas’s motorcycle did not strike Officer Tristan’s

vehicle, the wreck was too geographically and temporally removed from Officer Tristan’s

activation of his emergency lights to have arisen from that action. The City premises this argument

on its claims that “[n]o vehicle in the far-left lane was required to brake in response to anything

Officer Tristan did in the far-right exit lane” and “[n]othing Officer Tristan is alleged to have done

immediately impacted on Riojas, on Vela, or on the motorist preceding Vela[.]” The City ignores,

however, that the Texas Transportation Code explicitly provides that when a police vehicle

activates its emergency lights, other drivers must “yield the right-of-way” to the police vehicle,

immediately move as close as possible to the right-hand side of the road, and “stop and remain

standing” until after the police vehicle has passed. TEX. TRANSP. CODE ANN. § 545.156(a). The

statute does not limit this mandatory duty to any specific lane of travel or proximity to the police

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vehicle. Id. As a result, the claim upon which the City premises its “attenuation” argument is

incorrect as a matter of law. See id.

Moreover, although section 545.156(a) requires drivers to “stop and remain standing” until

a police vehicle displaying its emergency lights drives away, the submitted evidence indicates that

Officer Tristan did not drive away from the scene after activating his lights. Instead, he pulled into

the space between the exit lane and the main lanes with his lights flashing, and at least two

eyewitnesses saw no discernible reason for his having activated his lights in the first place. Based

on the interplay between these facts and section 545.156(a)’s mandatory duties, a factfinder could

reasonably infer that when Officer Tristan activated his lights and stopped on the right side of the

road, his fellow motorists on Interstate Highway 37 were uncertain—or, as the eyewitnesses put

it, “scared”—about how to correctly respond. See id. Indeed, the video shows that traffic briefly

stopped moving altogether—including in the far-left lane—after Officer Tristan pulled over to the

right side of the road. The City therefore has not shown as a matter of law that “[n]o vehicle in the

far-left lane was required to brake in response to anything Officer Tristan did in the far-right exit

lane.” 2

Additionally, the supreme court has recently clarified that the statutory “arises from”

requirement is broader than some courts and parties had previously interpreted it. See PHI, Inc. v.

Tex. Juvenile Justice Dep’t, No. 18-0099, 2019 WL 1873431, at *5 (Tex. Apr. 26, 2019). In PHI,

a governmental employee, Webb, parked a vehicle on an incline, turned it off, and left without

applying its emergency brake. Id. at *1. After Webb walked away, the vehicle rolled backwards

2
Although the dissent posits that Riojas and Vela did not see Officer Tristan’s lights and therefore “were not taking
any actions required by the Texas Transportation Code in response to those lights,” the car in front of Vela was also
traveling in the far-left lane. While the fact that Riojas and Vela did not see Officer Tristan activate his lights before
the wreck may, ultimately, convince the factfinder that Officer Tristan’s actions did not cause Riojas’s injuries, we
cannot credit that evidence and ignore the contrary evidence from the eyewitnesses under our summary judgment
standards. See Millspaugh v. Bulverde Spring Branch Emergency Servs., 559 S.W.3d 613, 622 (Tex. App.—San
Antonio 2018, no pet.).

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into PHI’s helicopter. Id. Based on Ryder’s statement that “‘a government employee must have

been actively operating the vehicle at the time of the incident,’” Webb’s employer argued that

PHI’s negligence claims were barred because Webb was not even in the vehicle, much less actively

operating it, when the wreck occurred. Id. at *5–6 (quoting Ryder, 453 S.W.3d at 927). The

supreme court disagreed, holding that even though Webb was not in the vehicle at the moment of

impact, the evidence raised a fact question about whether his failure to use the emergency brake

“led directly to the damages PHI sustained.” Id. at *5. The same conclusion is required here, where

two eyewitnesses who observed the temporal and geographic conditions surrounding Officer

Tristan’s activation of his lights and Riojas’s wreck both concluded that Officer Tristan’s operation

of his patrol vehicle was “directly, causally linked to the accident and the damages sustained.” See

id. Based on this evidence, the trial court did not err by rejecting the City’s contention that

“[n]othing Officer Tristan is alleged to have done immediately impacted on Riojas” or the drivers

immediately in front of him.

The dissent agrees with the City’s attenuation analysis and concludes that “the evidence

establishes that Riojas’s injuries arose from actions taken by other drivers that occurred prior to

Officer Tristan’s activating his emergency lights.” However, this conclusion assumes that as a

matter of law, the existence of one traffic hazard—the slowdown caused by Olvedo and the driver

of the other white car who cut her off—precludes a factfinder from determining that Officer Tristan

caused an additional hazard by negligently activating his emergency lights. Such a conclusion is

contrary to the City’s own pleadings, which allege that “another third party” committed negligent

acts that were “a proximate cause, contributing cause or sole cause of the occurrence” and which

seek “proportionate reductions in liability pursuant to Chapter 33 of the Texas Civil Practice and

Remedies Code.” Because nothing in the TTCA required Riojas to show that Officer Tristan’s

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actions were the sole proximate cause of this wreck to defeat the City’s plea to the jurisdiction, we

cannot agree with the dissent’s analysis on this point.

Finally, the City argues, and the dissent agrees, that the City was entitled to a jurisdictional

dismissal because there is no evidence showing why the driver in front of Vela braked. As

explained above, the eyewitnesses’ statements are circumstantial evidence upon which a factfinder

could conclude that the driver in front of Vela braked because Officer Tristan activated his lights.

By rejecting this circumstantial evidence, the City essentially asks us to hold that Riojas was

required to produce direct evidence of the reasons for the unknown driver’s actions in order to

survive the City’s plea to the jurisdiction. However, even during a trial on the merits, causation

may be shown by either direct or circumstantial evidence. See Havner v. E-Z Mart Stores, Inc.,

825 S.W.2d 456, 459 (Tex. 1992). Because the direct evidence the City insists was necessary here

would not be required for Riojas to prevail at trial, we cannot agree that it was required to defeat

the City’s jurisdictional plea. See, e.g., Tex. Dep’t of Criminal Justice v. Simon, 140 S.W.3d 338,

348 (Tex. 2004), superseded in part on other grounds by TEX. GOV’T CODE ANN. § 311.034

(“There will, of course, be times when subjective awareness must be proved, if at all, by

circumstantial evidence.”); Bentley v. Bunton, 94 S.W.3d 561, 596 (Tex. 2002) (noting state of

mind “must usually . . . be proved by circumstantial evidence”); Transp. Ins. Co. v. Moriel, 879

S.W.2d 10, 23 (Tex. 1994) (recognizing “the practical difficulty of producing direct evidence” of

why a party did what it did).

For these reasons, the trial court did not err by rejecting the City’s contention that the wreck

was too attenuated from Officer Tristan’s conduct to have been caused by it. Accordingly, we

overrule this challenge to the trial court’s order denying the City’s plea to the jurisdiction.

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Official Immunity

The City also argues that it is immune from Riojas’s claims because Officer Tristan is

entitled to official immunity. Riojas responds that the trial court did not err by denying the City’s

plea on official immunity grounds because the City did not show that Officer Tristan acted in good

faith.

Applicable Law

“A governmental employee is entitled to official immunity 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, 642–43 (Tex. 2015). A police officer acts in good faith if a reasonably

prudent officer under the same or similar circumstances could have believed the need to take the

action in question outweighed the risk of harm the action posed to the public. See Wadewitz v.

Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). Accordingly, “good faith depends on how a

reasonably prudent officer could have assessed both the need to which an officer responds and the

risks of the officer’s course of action, based on the officer’s perception of the facts at the time of

the event.” Id. at 467 (emphasis in original); see also Univ. of Hous. v. Clark, 38 S.W.3d 578, 581

(Tex. 2000) (noting “testimony on good faith must discuss what a reasonable officer could have

believed under the circumstances, and must be substantiated with facts showing that the officer

assessed both the need to apprehend the suspect and the risk of harm to the public”).

“The ‘need’ aspect of the test refers to the urgency of the circumstances requiring police

intervention.” Wadewitz, 951 S.W.2d at 467. Factors to considering in analyzing the “need” prong

include the seriousness of the situation, whether the officer’s action is necessary to prevent injury

or death, and whether any alternative actions could achieve a comparable result. Id. The “risk”

prong considers public safety concerns such as the nature and severity of potential harm from the

officer’s actions, the likelihood of harm occurring, and “whether any risk of harm would be clear

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to a reasonably prudent officer.” Id. Although an officer can rely on his own affidavit to show

good faith, the affidavit must address both the “need” and “risk” prongs. Id.; Harless v. Niles, 100

S.W.3d 390, 399–400 (Tex. App.—San Antonio 2002, no pet.).

Application

Because Riojas has not disputed that Officer Tristan acted within the scope of his authority

or that his actions were discretionary, the only question for us to consider is whether the City

conclusively showed that Officer Tristan acted in good faith. See Wadewitz, 951 S.W.2d at 466;

see also Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). The

governmental entity initially “carries the burden to meet the summary judgment proof standard for

its assertion that the trial court lacks jurisdiction.” 3 Garcia, 372 SW3d at 635. The City has not

satisfied that burden here. See Harless, 100 S.W.3d at 399–400. In his affidavit, Officer Tristan

stated that when he observed an unexpected traffic slowdown on the day of the wreck, “it was

within [his] discretion to decide upon the best course of action to take for the safety of other

motorists on I.H. 37 South.” However, he did not make any attempt to support that conclusion by

showing that he balanced the need he perceived with the potential risk posed by his chosen course

of action. See id. at 398–99. Without that analysis, his affidavit amounted to nothing more than a

“[s]imple subjective pronouncement of good faith” that was “insufficient as a matter of law to

meet [the City’s] burden.” Id. at 398.

The City argues that “the needs-versus-risks analysis does not apply in this context”

because this case does not involve a high-speed pursuit or an emergency response. However, we

have found no authority to support the City’s assertion that a needs-risk analysis is only appropriate

3
In its briefing, the City argues that Riojas did not challenge its evidence of good faith in the trial court. However,
because we review a trial court’s ruling under the same standards that would apply to a summary judgment, Riojas
did not have any burden to produce contrary evidence unless and until the City showed it was entitled to judgment as
a matter of law on this issue. See Mission, 372 S.W.3d at 635.

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in those limited situations. To the contrary, as Riojas notes, at least one of our sister courts has

required evidence to perform a needs-risk balancing under facts like these. See Junemann v. Harris

County, 84 S.W.3d 689, 694–95 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).

For these reasons, the trial court did not err by denying the City’s plea to the jurisdiction

on the basis of official immunity. We overrule this challenge to the trial court’s order denying the

City’s plea to the jurisdiction.

Judicial Admission

Finally, the City argues Riojas judicially admitted that Olvedo’s conduct, not Officer

Tristan’s, caused the wreck. “Assertions of fact, not pleaded in the alternative, in the live pleadings

of a party are regarded as formal judicial admissions.” United Parcel Serv., Inc. v. Rankin, 468

S.W.3d 609, 626 (Tex. App.—San Antonio 2015, pet. denied). It is well-established, however, that

“a judicial admission must be clear, deliberate, and unequivocal.” Id. (internal quotation marks

omitted). Here, it is undisputed that Riojas sued the City before he sued Olvedo. The City has not

explained why Riojas’s allegations against a newly added defendant constitute clear, deliberate,

and unequivocal admissions that essentially amount to an abandonment of his original claims

against the City. See id.

Moreover, “[i]t has long been the law in this state that a defendant’s act or omission need

not be the sole cause of an injury, as long as it is a substantial factor in bringing about the injury.

There may be more than one proximate cause of an injury.” Bustamante v. Ponte, 529 S.W.3d 447,

457 (Tex. 2017) (internal citations omitted). As the City itself notes, “[a]lthough Riojas pled that

he was reacting to a slowdown initiated by [Olvedo], he also asserted that his evasive action

resulted from Officer [Tristan]’s actions.” These allegations of two possible causes for this wreck

do not constitute a clear, deliberate, and unequivocal admission that Olvedo’s conduct was the sole

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cause of Riojas’s injuries. See Rankin, 468 S.W.3d at 626. Accordingly, we overrule this challenge

to the trial court’s order.

CONCLUSION

We affirm the trial court’s order.

Beth Watkins, Justice

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