Martinez v. Harris County

Laura Carter Higley, Justice,

dissenting.

The Supreme Court of Texas has established guidelines to evaluate when a law enforcement officer engaged in a high-speed pursuit must call off the pursuit in the interest of public safety. See, e.g., City of Lancaster v. Chambers, 883 S.W.2d 650, 655-58 (Tex. 1994); Wadewitz v. Montgomery, 951 S.W.2d 464, 465-67 (Tex. 1997). The guidelines involve weighing the need to continue the pursuit against the. risk to public safety. See Chambers, 883 S.W.2d at 656; Wadewitz, 951 S.W.2d at 466. Here, an officer had a justifiable need to take over a pursuit but had no knowledge from that point, on with which to evaluate the need "to continue the" pursuit. Because I believe the majority incorrectly treats this lack of knowledge as proof of the need, I respectfully dissent.

Background

On Friday, January 17, 2014, Officer R. Martinez, with the Houston Police Department, was on motorcycle patrol in Houston, Texas. Around 5:00 p.m., he determined that the driver of a car in his vicinity had an outstanding warrant for his arrest for a Class C misdemeanor traffic offense. Officer Martinez attempted to stop the car, but the driver fled from him instead of stopping.

Deputy C. Johnson, with the Harris County Constable Precinct Six’s Office, *572was also on patrol that day. He was stopped at an intersection when he saw Officer Martinez and the fleeing car pass through the intersection. Deputy Johnson later testified that both the Houston Police Department and the Harris County Constable’s Office have policies establishing that, when an officer in a patrol car sees an officer on a motorcycle engaged in a high-speed pursuit, the officer in the patrol car is required to take over the pursuit. This is because an officer in a patrol car has a lower risk for injury in a high-speed pursuit than an officer on a motorcycle.

Based on the requirement to take over the pursuit, Deputy Johnson joined the pursuit. Officer R. Martinez fell back and briefly followed the pursuit at a slower speed. Deputy Johnson saw the license plate number of the fleeing car and reported it to his dispatch. The pursuit lasted six to seven minutes. During this time, he received no information about the vehicle, the possible driver, or the reason the pursuit began.

When the pursuit began, traffic was “light to moderate.” During the pursuit, however, they travelled through some high traffic areas. The fleeing car forced several vehicles off of the road during the pursuit and drove through several intersections at a high rate of speed. At one point, the fleeing car was travelling between 60 and 70 miles per hour.

The fleeing car took many turns, including through residential neighborhoods. Towards the end of the pursuit, both cars were travelling northbound on Telephone Road, approaching the intersection of Woodridge Drive.1 There were two northbound lanes on Telephone road. The fleeing car was in the right lane, and Deputy Johnson was in the left lane. The light at the intersection of Woodridge Drive was red for them.

At the intersection, the fleeing car turned right onto Woodridge Drive. Deputy Johnson continued the pursuit, turning right from the left lane. He positioned his patrol car slightly to the left of the fleeing car. At the end of the turn, he faced the left turn lane for opposing traffic.

At the time, Jaclynn Martinez was in the left turn lane. An eighteen-wheeler cab was behind her. The front left side of Deputy Johnson’s patrol car collided with the front left side of Martinez’s car. The force of the impact pushed Martinez into the eighteen-wheeler cab behind her.

Deputy Johnson came to a stop as a result of the accident. He then left the scene, continuing the pursuit. Shortly after, the fleeing car collided with other cars, and the pursuit ended.

A few months after the accident, Deputy Johnson submitted, upon request, a statement of the events surrounding the accident. In it, Deputy Johnson stated,

While northbound at the 4700 block of Telephone Road[,] I noticed that the suspect’s vehicle and I were approaching the intersection of Golfway Street/Wood-ridge Drive under an illuminated red traffic stoplight. (Golfway Street is west of Telephone Road and Woodridge Drive is east of Telephone Road.) Slowing my speed, I proceeded into the intersection turning into Woodridge Drive with every degree of caution available. Using precaution!,] I continued to lower my speed and position my patrol vehicle behind and slightly to the left of the suspect’s vehicle. While in this position!,] it afforded me a clear view of Golfway Street *573motorists and giving the 'motorists a, clear view of me. I switched audible sound setting on my siren back and forth to get the attention of other motorists to alert them of the pursuit.
As I continued to negotiate my turn off of Telephone Road onto Woodridge Drive[,] I observed the suspect’s vehicle was starting to come out of the turn. The suspect’s vehicle started to accelerate as it was coming out of the turn onto Woodridge Drive and started to open the distance between our vehicles. It was at this time I first observed a Green Kia Soul [Martinez’s car] stopped in front of the 18 Wheeler Tractor in the left hand turn lane of Woodridge Drive. The Kia Soul had been hidden from- [m]y view by the suspect’s vehicle.

After suit was filed, Martinez took Deputy Johnson’s deposition. During the deposition, Deputy Johnson discussed the need to “clear” an intersection when passing through it during a high-speed pursuit. He explained that clearing an intersection meant determining the traffic flow at the intersection, making sure there were no obstructions blocking his view, and making sure it is safe to proceed through the intersection.

Deputy Johnson also discussed factors that should be weighed in deciding whether to pursue a vehicle. He acknowledged that time of day is one factor, identifying the time during rush hour traffic as a riskier time to engage in a high-speed pursuit. He also testified that he was familiar with the Telephone Road and Wood-ridge Drive intersection and that he had traveled through it many times. He stated that there is a one-foot decline onto Wood-ridge Drive from Telephone Road. He knew about the decline and knew that it could be an obstruction.

Towards the end of the deposition, Deputy Johnson discussed the police chase and subsequent collision. He testified that, when they approached Telephone Road, he was one car-length behind the fleeing car. The light was red. There were two northbound lanes. The fleeing car was in the right lane, and Deputy Johnson was in the left lane. The fleeing car appeared to be going straight through the red light but then turned right onto Woodridge Road. Deputy Johnson turned in response.

Deputy Johnson testified . that Martinez was at a complete stop at the intersection to turn left. Her left-turn light was red as well.. There was an eighteen-wheeler cab behind her and three or four cars behind the cab. As Deputy Johnson made the turn, he saw the eighteen-wheeler cab but did not see Martinez in front of the cab. He testified that the first time he saw her was when he came into contact with her.

He testified that two obstructions prevented him from seeing Martinez. The one-foot decline onto Woodridge Drive from Telephone Road was one obstruction blocking his view. The fleeing car was the other obstruction. Deputy Johnson insisted that he cleared the intersection because he looked into the space where Martinez was stopped “and there wasn’t anything there.” He also acknowledged that, at the time, Martinez was, in fact, there.2

*574■ The County later filed a motion for summary judgment. In it, the County argued that governmental immunity prevented Martinez’s suit against it. The County’s evidence included the affidavit of Albert Ortiz. In his affidavit, Ortiz averred that he had been 'a police officer in San Antonio for 33.5 years and that he was the former chief of police, there. In the affidavit, Ortiz identified the need for Deputy Johnson to pursue the fleeing car was because the original officer in pursuit was on a motorcycle and pursuit on a motorcycle is inherently more dangerous. He also identified the dangerous situation created by the fleeing car driving so fast as a need to continue the high-speed pursuit. He asserted the risks were minimized because the weather and road conditions were good and Deputy Johnson had "his lights and sirens operating.

Martinez also filed ah amended petition and a response to the County’s motion for summary judgment. The trial court granted the County’s motion, dismissing in full-Martinez’s claims against the County.

Motion for Summary Judgment

In four issues on appeal, Martinez argues that the’trial court erred by granting summary judghient. In one of its cros's-issues, the County argues that the evidence shows it is exempt under section 101.055 of the Texas Tort Claims Act from the waiver of governmental immunity.

A. Standard of Review

Courts review a motion for summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The County sought summary judgment on the basis of governmental immunity. If immunity applies, the trial court lacks subject-matter jurisdiction over the case. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); see also Fink v. Anderson, 477 S.W.3d 460, 465 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Subject-matter jurisdiction is a question of law, which courts review de novo. Miranda, 133 S.W.3d at 226.

Courts take as true all evidence favorable to the nonmovant and indulge reasonable inferences and resolve doubts in her favor. Id. at 228. When the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the jurisdictional issue as a matter of law. Id.' If, however, the evidence creates a fact question regarding jurisdiction, then the trial court must deny the motion, and the fact issue will be resolved-by-the factfinder. Id. at 227-28.

B. Good Faith

As the majority correctly states, whether the'County is immune-from suit turns on whether Deputy Johnson was entitled to official immunity. See DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex. 1995). Official immunity is an affirmative defense. Wadewitz, 951 S.W.2d at 465; Chambers, 883 S.W.2d at 653. Accordingly, the County bore the burden of establishing' its application. See Chambers, 883 S.W.2d at 653.

“A governmental employee is entitled to official immunity: (1) for the performance of discretionary duties; (2) within the scope of the employee’s authority; (3) provided the employee, acts in good faith.” Univ. of Hous. v. Clark, 38 S.W.3d 578, 579 (Tex. 2000). There is no dispute that Deputy Johnson was performing discretionary duties at the time of the collision or that he was acting within the scope of his authority as a deputy. The only dispute, then, is *575whether Deputy Johnson acted in good faith.

The Supreme Court of Texas has held that good faith is evaluated with a balancing test. See Chambers, 883 S.W.2d at 656. And it is that balancing test that controls the outcome of this case. This test weighs the need to immediately apprehend the suspect against the risk posed to the public by continuing the pursuit. See id.

On the need side of the ledger, courts consider “the urgency of the circumstances requiring police intervention.” Wadewitz, 951 S.W.2d at 467. Courts evaluate the urgency of the circumstances by considering “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.” Id.; see also Clark, 38 S.W.3d at 582 (holding Wadewitz factors, apply to police pursuit cases).

On the risk side of the ledger, courts consider “the countervailing public safety concerns.” Wadewitz, 951 S.W.2d at 467. The public safety concerns include consideration of “the nature and severity of harm that the officer’s actions could cause (including injuries to bystanders ...), the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent officer.” Id. “[A]n officer in a police pursuit must assess both the risk that the suspect will injure a third party and the risk that the officer himself will injure a third party.” Clark, 38 S.W.3d at 583 (emphasis in original).

A police pursuit usually entails rapidly changing circumstances. See id. at 582 (holding “both emergency responses and police pursuits may involve rapidly changing circumstances”). It follows, then, that determination of the reasonableness of a pursuit “reqüire[s] a continuing assessment of need and risk.” Id. at 582-83. Accordingly, proof, that pursuit was reasonable at one point of chase does not establish that the entire pursuit was reasonable. See id.

A police officer acts in good faith during a high-speed pursuit if “a reasonably prudent officer, under the same or similar circumstances, could have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm to the public in continuing the pursuit.” Chambers, 883 S.W.2d at 656. Because review is based on what a reasonably prudent officer could have believed, courts are not concerned with the individual officer’s state of mind. Wadewitz, 951 S.W.2d at 466. Courts do, however, consider the information possessed by the officer in question at the time the incident occurred. Chambers, 883 S.W.2d at 656.

. In determining whether official immunity applies, courts , do not consider evidence concerning whether the officer in.question was actually negligent. City of Fort Worth v. Robinson, 300 S.W.3d 892, 899-900 (Tex. App.—Fort Worth 2009, no pet.); see also Harris Cty. v. Garza, 971 S.W.2d 733, 735 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (holding determination of good faith renders finding of negligence immaterial); Chambers, 883 S.W.2d at 655 (“The complex policy judgment reflected by the doctrine of official immunity, if it is to mean anything, protects officers from suit even if they acted negligently.”); But see Junemann v. Harris Cty., 84 S.W.3d 689, 694 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (holding failure to take action may have some bearing on good faith).

If the County carries its burden of establishing, that a reasonably prudent officer could have believed continued pursuit was necessary, the burden shifts to the *576plaintiff on this point to “show that ‘no reasonable person in the defendant’s position could have thought the facts were such that they justified defendant’s acts.’ ” Chambers, 883 S.W.2d at 657 (quoting Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993)). Compared to its federal counterpart, this test “is somewhat less likely to be resolved at the summary judgment stage.” Id.

Expert testimony can be relevant to the determination of good faith. Wadewitz, 951 S.W.2d at 466. The testimony must be “clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and [able to be] readily controverted.” Tex. R. Civ. P. 166a(c). Conclusory statements “that a reasonable officer could or could not have taken some action will neither establish good faith at the summary judgment stage nor raise a fact issue to defeat summary judgment.” Wadewitz, 951 S.W.2d at 466. Instead, the expert testimony “must address what a reasonable officer could have believed under the circumstances ... and must be substantiated with reference to each aspect of the [good faith] balancing test.” Id. at 466-67.

Deputy Johnson testified in his deposition that he joined the pursuit because it was the constable’s office’s policy that, when an officer in a patrol car sees an officer on a motorcycle engaged in a high-speed pursuit, the officer in the patrol car is required to take over the pursuit. This is because an officer in a patrol car has a lower risk for injury in a high-speed pursuit than an officer on a motorcycle. When the pursuit began, traffic was “light to moderate.” The weather was clear, and the pursuit quickly lead onto a highway frontage road. I would hold that, at the start of Deputy Johnson’s pursuit, the need to join the pursuit outweighed the risk to public safety. See Wadewitz, 951 S.W.2d at 467.

Once Deputy Johnson joined the pursuit, however, he had no idea why he was pursuing the fleeing vehicle other than the fact that the vehicle had been fleeing another officer. See Clark, 38 S.W.3d at 582-83 (holding determination of reasonableness of pursuit “require[s] a continuing assessment of need and risk”). For the entire duration of his six to seven minute pursuit, Deputy Johnson had no information with which he could determine that the need to pursue the fleeing car outweighed the risk to public safety.

Compounding this problem is the fact that the evidence showed that the risk continued to rise during the pursuit. Although traffic at the start of the pursuit was light to moderate, Deputy Johnson testified that they travelled through some high traffic areas. This is during Friday rush hour traffic in Houston, Texas. The fleeing car forced several vehicles off of the road during the pursuit and drove through several intersections at a high rate of speed. At one point, the fleeing car reached speeds between 60 and 70 miles per hour. They travelled through major intersections and neighborhood streets.

As the risk increased, Deputy Johnson continued to have no knowledge of the need to continue the pursuit. The inevitable conclusion, then, is that the County failed to carry its burden of establishing that “a reasonably prudent officer, under the same or similar circumstances, could have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm to the public in continuing the pursuit.” Chambers, 883 S.W.2d at 656. This is the critical inquiry. It is the only issue in dispute. Without any facts to establish a need to continue the pursuit, there is no basis to conclude that the County established as a matter of law that it was entitled to immunity. See Wadewitz, 951 S.W.2d at 467 (“Without taking both *577sides of the Chambers good faith balancing test into account, neither Wadewitz nor his expert witness had a suitable basis for concluding that a reasonable officer in Wa-dewitz’s position could or could not have believed that Wadewitz’s actions were justified.”).

The difficult situation in which Deputy Johnson was placed should not be diminished. Under employment policy, he was obligated to join the pursuit. The reasons for the policy are clear and reasonable. Yet, by following the policy, Deputy Johnson was placed in a situation where he could not adequately assess the need to continue the pursuit as conditions for risk changed. Moreover, the officer on the motorcycle was with the Houston Police Department, and there was no means of direct communication between the two.

Even so, under current law, there is no basis for holding that the County carried its burden as a matter of law. It is the obligation of this Court to apply the law. Lubbock Cty., Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (“It is not the function of a court of appeals to abrogate or modify established precedent. That function lies solely with this Court.”). While it is beyond the scope of this dissent to determine what the law should be, see id., it does not seem unreasonable to place an expectation on a governmental entity seeking to apply immunity to exercise best efforts to communicate with the other law enforcement agency to determine why the pursuit began and then communicate that information to the officer engaged in the pursuit.

Under the current record, there is no evidence of what actions Harris County took to learn about the fleeing car, its possible driver, how or why the pursuit began, or any other information to supply the need for the pursuit. Nor is there evidence of why any of that information could not be obtained within the time before the accident occurred. Such matters could, in some cases, create fact issues as to the reasonableness of the efforts and time taken, which would preclude summary judgment. They would not, however, entirely preclude the application of immunity in situations like this.

Despite Deputy Johnson’s admission that he did not know why he was pursuing the car, the majority holds that the evidence establishes that the County proved as a matter of law that a reasonably prudent officer could have believed that the need to apprehend the driver outweighed the risk to public safety posed by the pursuit. I cannot agree with the majority’s reasoning.

To justify its holding that the County established as a matter of law that the need outweighed the risk, the majority relies on facts that will be true in virtually every—if not every—high speed police pursuit. For example, the majority relies on the facts that the fleeing car was travel-ling at high rates of speed, ignoring traffic and safety signs, and disregarding the safety of other vehicles or pedestrians. It is hard to conceive of a high-speed pursuit that does not match this description. Likewise, the majority points out that it is a crime to intentionally evade a police officer attempting to perform an arrest. The majority also considers the fact that Deputy Johnson indicated that he was aware of the risks involved as a basis for minimizing the risk posed by the pursuit. By relying on facts that will always be present in a high-speed police chase,3 the majority effective*578ly neuters the balancing test created by the Supreme Court of Texas. Every high-speed pursuit will have the facts the majority relies on; so every high-speed pursuit will be justified.

Of particular concern is the majority’s reliance on the fact that the fleeing driver was speeding and driving erratically as proof of an increased need, not an increased risk. The Supreme Court of Texas has done the opposite. For the need factor, courts are concerned with “the seriousness of the crime or accident to which the officer responds” before the high-speed pursuit begins.4 See Wadewitz, 951 S.W.2d at 467. For the risk factor, “an officer in a police pursuit must assess both the risk that the suspect will injure a third party and the risk that the officer himself will injure a third party.” Clark, 38 S.W.3d at 583 (emphasis in original).

I also note that the majority criticizes Martinez for being speculative about whether the fleeing driver would have returned to normal driving practices if Deputy Johnson has discontinued pursuit.5 Of course it was the County’s burden to establish as a matter of law that the need outweighed the risk. See Chambers, 883 S.W.2d at 653 (holding defendant bears burden of establishing affirmative defense of official immunity). Given the County’s and the majority’s reliance on the fact that the fleeing driver was fleeing as proof of the risk, it should be the County’s burden to present some proof that discontinuing the chase would not affect the other driver’s decision to flee.

Finally, I am concerned by the following passage in the majority opinion:

.While Johnson had notified dispatch of the fleeing driver’s plate number, dispatch did not provide him with any information during the pursuit about the vehicle, its ownership, or whether it was stolen. The fleeing Dodge Caliber had at least two occupants. Johnson did not know the identity of the driver or passenger during the pursuit, nor did he know whether either had been identified based on the plate number or other information that he provided to dispatch. Given the limited state of his knowledge, Johnson could not evaluate the likelihood that the fleeing driver could have been apprehended later had the pursuit been discontinued.

(Emphasis added.) Here, the majority explicitly acknowledges that Deputy Johnson could not properly evaluate the need to continue the chase. Yet, the majority somehow uses this very argument to bolster its conclusion that the County established as a matter of law that the need outweighed the risk. The majority is treating lack of knowledge of need as sufficient proof of the existence of the need and is criticizing Martinez for failing to prove what would have happened if Deputy Johnson had discontinued the chase. This is not the law. See id.; Wadewitz, 951 S.W.2d at 467 (“Without taking both sides *579of the Chambers good faith balancing test into account, neither Wadewitz nor his expert witness had a suitable basis for concluding that a reasonable officer in Wa-dewitz’s position could or could not have believed that Wadewitz’s.actions were justified.”). ,

As the passage above highlights, the majority opinion discourages any investigation by the County into why the chase began or why it might need to continue and discourages any communication to the officer of any information that might allow him to better evaluate the need to continue the chase. If ignorance of the need satisfies the need element, then communication of pertinent information increases, not diminishes, the threat of liability to the officer as well as to the governmental entity. This is not a practice that should be encouraged.

C. Recklessness

In its brief, the County argues that, even if this Court holds there is insufficient - evidence of official immunity, the Court can still affirm the trial court’s summary judgment against Martinez based on section 101.055 of the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.055 (West 2011). Because it affirms based on the element of good faith, the majority does not reach whether the trial court’s judgment could have been affirmed on this ground. See City of San Antonio v. Hartman, 201 S.W.3d 667, 671-72 (Tex. 2006) (holding section 101.065 is exception to waiver of governmental immunity); Williams v. City of Baytown, 467 S.W.3d 566, 579 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (holding that, because court had determined immunity had not been waived under section 101.021, court did not need to analyze arguments relevant to section 101.055.). I will touch on it briefly.

Section 101.055 provides, in pertinent part, that the Tort Claims Act (including its waiver of immunity) 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....” Civ. Prac. & Rem. § 101.055(2). The only dispute between the parties is whether Deputy Johnson was acting in compliance with the applicable laws and ordinances.

For the applicable law, section 546.001 of the Texas Transportation Code allows the driver of an authorized emergency vehicle to “exceed a maximum speed limit ... as long as the operator does not endanger life or property.” Tex. Transp. Code Ann. § 546.001(3) (West 2011). Even so, the driver of the emergency vehicle is not relieved from “(1) the duty to operate the vehicle with appropriate regard for the safety of all persons; or (2) the consequences of reckless disregard for the safety of others.” Tex. Transp. Code Ann. § 546.005(1)-(2) (West 2011). Under this section, while the duty exists to drive with appropriate regard for the safety of others, liability is only imposed in instances of reckless disregard for the safety of others. City of Houston v. Davis, No. 01-13-00600-CV, 2014 WL 1678907, at *6 (Tex. App.—Houston [1st Dist.] April 24, 2014, pet. denied) (mem. op.). “To establish recklessness in this context, the employee must have committed an act that he knew or should have known posed a high degree of risk of serious injury.” Id. (citing City of Pasadena v. Kuhn, 260 S.W.3d 93, 99 (Tex. App.—Houston [1st Dist.] 2008, no pet.)).

The County argues three facts establish that Deputy Johnson was not driving recklessly: (1) Deputy Johnson had activated his emergency lights and siren; (2) he had slowed his speed before proceeding into *580the intersection; and (3) “he ‘cleared the intersection’ to the best of his ability before he made the turn.”

In Kuhn, the evidence indicated that, before entering an intersection with his lights and siren activated, the officer in question slowed his vehicle. 260 S.W.3d at 99-100. There was also evidence that a number of obstructions created a blind spot for possible intersecting traffic. See id. at 100. Nevertheless, the officer proceeded through and hit a vehicle that reached the intersection from the direction of the blind spot. See id. at 98. This Court held,

Whether the intersection is blind does not create a material fact issue here in light of the undisputed testimony that [the officer] had on his emergency lights and siren and that he slowed before entering the intersection. Any intersection that an officer attempts to traverse when responding to an emergency is' potentially a “blind intersection.” That is why the statute provides that an emergency vehicle may proceed through a stop light after “slowing as necessary.” See Tex Transp. Code Ann. § 546.001(2). The undisputed evidence shows that [the officer] followed those procedures.

Id. at 100.

The differences between Kuhn and this case are controlling. First, failure to activate a patrol car’s emergency lights and siren can raise a fact issue about whether the officer was driving recklessly. Compare id. (relying on use of lights and siren as proof to refute recklessness) with Galveston Cty. Health Dist. v. Hanley, No. 01-14-00166-CV, 2014 WL 6853608, at *5 (Tex. App.—Houston [1st Dist.] December 4, 2014, no pet.) (mem. op.) (holding facts suggesting officer did not use siren created fact issue for recklessness). Here, however, use of lights and a siren has little significance. Deputy Johnson acknowledged that the purpose of lights and a siren is to alert other people to the presence of the patrol car and to indicate that other vehicles and people need to accommodate the officer’s route of travel. But the record indicates that Martinez was aware of Deputy Johnson, was stopped at a light with other vehicles stopped behind her, would not have had reason to anticipate that Deputy Johnson would have turned into her lane, and did not have any reasonable opportunity to accommodate his- turning into her lane once he did. The County provides no explanation of how Deputy Johnson’s use of lights and a siren did have or could have had any effect on preventing the collision.

For his speed, Deputy Johnson testified that he slowed down before entering the intersection and turning. There is no evidence, however, of how fast he was travel-ling before the turn, how much he slowed down before or during the turn, or how fast he was travelling after slowing down. In fact, there is evidence in the record that Deputy Johnson maintained a one-car-length distance between himself and the fleeing car before entering the intersection, that Deputy Johnson was close enough to the fleeing car during the turn that the fleeing car obstructed his view of the traffic on the intersecting street, that Deputy Johnson thought the fleeing car was going to proceed straight through the intersection, and that he turned to follow the fleeing car. Viewed in the light most favorable to Martinez, this evidence suggests that Deputy Johnson did not slow before the turn to clear the intersection, but only slowed in the course of the turn. See Miranda, 133 S.W.3d at 226 (holding courts review motion for summary judgment in light most favorable to nonmov-ant).

Finally, in Kuhn this Court discounted the presence of the blind spot in the inter*581section that the other car passed through before entering the intersection. 260 S.W.3d at 100. Here, however,- Deputy Johnson was driving into the blind spot. Deputy Johnson was aware of two obstructions that limited his view of the portion of road he was driving towards during rush hour traffic and continued the pursuit.

I would hold the County has not disproved recklessness as a matter of law. As a result, I would sustain Martinez’s issue arguing that the trial court erred in granting summary judgment on her claims and overrule the County’s cross-issue arguing that the evidence shows it is exempt under section 101.055 from the waiver of governmental immunity.

Conclusion

I would reverse the trial court’s grant of summary judgment on Martinez’s claims and remand for further proceedings. Because the majority affirms, I respectfully dissent.

. More specifically, Woodridge Drive runs east of Telephone Road and Golfway Street: runs west of Telephone Road.

. Q. So you tried to clear the intersection, but you knew you had an obstructed view, right?

A. No. I cleared the intersection.
Q. Well, not really because Ms. Martinez was there.
A. After the fact.
[[Image here]]
Q. ... Well, she didn’t drive up after the fact. She was there the whole time, right?
A. Correct.
Q. You just didn’t see her.
A. Correct.
[[Image here]]
Q. Well, I’m confused. Why didn’t you see Ms. Martinez?
*574A. Because of the two obstructions, which [were] the [fleeing] vehicle and the decline.

. The majority criticizes this statement by pointing out that not all police chases will have "the informational constraints of not knowing why the chase was initiated.” Of course, this is not a fact I have claimed to be true in virtually all police chases. It is other *578facts upon which the majority relies—such as speeding, ignoring traffic signs, and evading a police officer—that I have described as being true in virtually every police chase. Pointing to a fact that I have not described as being virtually always present does not disprove that the majority has relied on other facts that will virtually always be present.

. Because it is not relevant to my analysis, I do not reach whether a police officer witnessing a driver traveling at a high rate of speed or in a reckless manner before any police chase has begun can satisfy the need factor.

. At the same time, the majority relies on Ortiz's assertion that Deputy Johnson failing to turn onto Woodridge Drive would have increased the chances that the fleeing vehicle would have had an accident with another vehicle. The majority does not explain how this is not speculative as well.