Case Number: 14-98-00431-CV 04/09/2001 Case stored in record room 04/03/2001 Notice sent to Court of Appeals 04/03/2001 Record returned to Court of Appeals 01/18/2001 Petition for Review disposed proceeding denied 12/15/2000 Reply filed 11/29/2000 Brief filed. 11/10/2000 Waiver notice for brief on the merits 10/20/2000 Record Received (See Remarks) 10/10/2000 Brief on the Merits Requested 10/10/2000 Record Requested in Petition for Review 08/22/2000 Case forwarded to Court 08/17/2000 Response to Petition for Review waived 07/19/2000 Petition for Review filed 07/19/2000 Appendix Filed 06/27/2000 additional copies received 06/27/2000 certification (various) in case received 06/27/2000 M/E/T to file petition for review disposed Granted 06/27/2000 Petition due 06/26/2000 Phone call from Clerk's Office 06/26/2000 Phone call from Clerk's Office 06/26/2000 M/E/T to file petition for review filed SUPPLEMENTAL OPINION ON SECOND MOTION FOR REHEARING
Appellants' second motion for rehearing is overruled. This supplemental opinion is issued to address errors of law and fact found in the dissenting opinion to the court's decision to overrule that motion.
The relevant facts and background information are set out in the panel opinion issued in the above-referenced case on March 2, 2000, and will not be repeated here. It is significant for these purposes to note that the issues in this case concern whether Joel Calfee, a paramedic for the City of Houston Fire Department, was entitled to official immunity for the good faith performance of a discretionary duty when the ambulance Calfee was driving collided with a truck driven by the appellant, Evenor Rivas.
The dissent contends that Calfee was not entitled to official immunity, as a matter of law, because he had no "discretion to run a red light without first slowing down for safe operation." The dissent mistakenly concludes that, because running a red light violates state law and Houston Fire Department regulations, Calfee was not performing a discretionary function while transporting a patient to the hospital at the time of the accident. However, well-settled law dictates that, in deciding whether Calfee's conduct was discretionary, we must focus on whether he was "performing a discretionary function, not on whether [he] had discretion to do an allegedly wrongful act while discharging that function." City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994) (emphasis added); see also Rivas v. City of Houston, No. 14-98-00431-CV, slip op. at 8 (Tex.App.-Houston [14th Dist.] March 2, 2000) (quoting Harris County v. Ochoa, 881 S.W.2d 884, 887 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (citingChambers, 883 S.W.2d at 653)). Under this analysis, the critical inquiry is whether Calfee, as a paramedic driving an ambulance, was "performing a discretionary function." See Chambers, 883 S.W.2d at 653. The dissent ignores this well established standard and concentrates instead on what the Texas Supreme Court has told us not to focus on — namely, on whether Calfee "had discretion to do an allegedly wrongful act while discharging that function,"i.e., to run the red light. See id. Because the dissent's rationale has been expressly rejected by the Texas Supreme Court, the dissent misses the mark in its discussion of whether Calfee was performing a discretionary duty at the time the accident occurred.
With regard to the dissent's treatment of whether Calfee was performing a discretionary duty in good faith, the dissent also mischaracterizes the facts of the case, concluding that there was "no evidence that the patient was in immediate danger to either himself or to the paramedics." In reality, the record contains testimony from both Calfee and his partner, who was responsible for upgrading the transport from a Code I "nonemergency" to a more critical Code II conveyance, that the patient was becoming increasingly belligerent and would not remain in his restraints. The patient would not stay on the stretcher and, at one point, he rolled onto the floor of the ambulance, where Calfee's partner had to "struggle" to secure him. The paramedics had to stop the ambulance more than once to secure the patient for his safety. The patient became progressively "combative," causing the paramedics concern for their own safety. At that point, the decision was made to upgrade the transport to a more serious Code II, in view of the patient's condition. *Page 903 This decision was made because the paramedics feared for the patient's safety as well as their own. Both paramedics testified that the need to get the patient to the hospital quickly outweighed the risks of upgrading the transport to a Code II emergency.
In concluding that Calfee failed to act in good faith, the dissent glosses over these facts and also downplays the seriousness of the patient's condition in a misleading way by finding that "[t]he patient's only injury was a bloody nose." The dissent's assessment ignores evidence that the patient had fallen on a stick which had become "lodged" up his nose. The dissent also overlooks the fact that the ambulance picked up the patient at around 4:00 a.m., at a "vacant storefront" on the edge of downtown Houston, where there were "several gentlemen who were sitting out front drinking." There was also evidence that the patient had been using illegal drugs. Calfee testified that injured patients, particularly those under the influence of drugs, are unpredictable and potentially dangerous both to themselves and to paramedics trying to treat them. Calfee related that, on a prior occasion, a patient who had been using cocaine suddenly and unexpectedly punched Calfee in the face during a trip to the hospital. Both paramedics in this case testified that the patient's increasing anxiety and irritability were factors in the decision to upgrade his conveyance to a Code II.
The Texas Supreme Court has noted, more than once, that "the good faith standard is not equivalent to a general negligence test, which addresses what a reasonable person would have done, rather than what a reasonable official could have believed."Wadewitz v. Montgomery, 951 S.W.2d 464, 467 n. 1 (Tex. 1997) (citing Chambers, 883 S.W.2d at 661, n. 5) (emphasis in original). Here, the evidence establishes that Calfee reasonably believed there was a great need to get the patient to the hospital as quickly as possible for safety reasons. Therefore, the evidence shows that Calfee acted in good faith as a matter of law. The dissent, by skewing the facts, focuses only on the issue of whether Calfee was negligent and ignores not only pertinent facts but also the proper legal standard. See Wadewitz, 951 S.W.2d at 467 n. 1 (explaining that "[e]vidence of negligence alone will not controvert competent evidence of good faith"). Accordingly, the dissent errs in its legal as well as its factual analysis.
Appellants' second motion for rehearing is overruled.