The majority opinion has effectively ruled that an ambulance driver, who is tired and wants to get a belligerent, uncooperative patient to the hospital as quickly as possible, can violate traffic and safety laws, disregard governmental rules and regulations, run a red light, slam into another vehicle, and be immune from liability as a matter of law. I disagree, particularly in light of controlling case law and evidence to the contrary.
Official immunity as an affirmative defense to personal liability arises only in context of the good faith performance of a discretionary duty. See Wadewitz v. Montgomery, 951 S.W.2d 464, 465-66 (Tex. 1997). Thus, two factors are involved in reviewing the propriety of Calfee's qualified immunity: "discretionary duty" and "good faith." In reaching its verdict at trial, the jury found that Calfee, as the driver of the ambulance, did not act in good faith — that is, it found that a reasonably prudent driver, under the same or similar circumstances, could not have believed that the need to immediately take the patient to the hospital outweighed a clear risk of harm to the public in proceeding through the red light without first slowing down. This finding was set aside by the trial court's judgment n.o.v., which granted qualified immunity as a matter of law. In affirming the judgment n.o.v., the majority opinion found that Calfee exercised *Page 904 a discretionary duty in good faith as a matter of law, both as to calling an emergency code and in failing to slow down before proceeding through the red light.
The trial court's ruling did not identify any particular act by Calfee as having been discretionary. While appellee City of Houston's motion for judgment n.o.v. argued that the discretionary act was the decision to call an emergency run, its motion did not address the issue that was actually submitted to the jury, which was whether Calfee acted in good faith in proceeding through the red light without first slowing down. Appellants' second motion for rehearing argues that this failure to slow down at the red light was not an exercise of discretionary duty. The distinction between these two acts — the decision to code an emergency run and the failure to slow down at the red light — is crucial and was not clearly addressed in the majority opinion.
The record is void of any evidence that Calfee, as an ambulance driver during an emergency run, had the discretion to run a red light without first slowing down for safe operation. In fact, the evidence established the opposite. Calfee himself acknowledged that he was required to follow Houston Fire Department rules and regulations at all times, which mandated that he use the ambulance lights and sirens during an emergency run, and slow down before proceeding through an intersection, red light or stop sign. Additionally, state law mandates that an emergency vehicle may proceed past a red signal, but only "after slowing as necessary for safe operation." Tex. Trans. Code Ann. § 46.001(2).
The majority's opinion side-steps the significance of this fact by stating that because Calfee was transporting a patient during an emergency run, he was performing a discretionary function as a matter of law at the time the accident occurred, citing City of El Paso v. Higginbotham, 993 S.W.2d 819, 823 (Tex.App.-El Paso 1999, no pet.) and Carrola v. Guillen,935 S.W.2d 949, 952 (Tex.App.-San Antonio 1996, no writ). Neither one of these cases provides support for the majority's position that an ambulance driver, as a matter of law, has the discretion to proceed through a red light without first slowing down during an emergency run. In absence of either facts or law to support such a holding, the granting and affirming of qualified immunity to Calfee as a matter of law was improper.
Regardless, even if we were to assume a discretionary act was at issue,1 the majority's *Page 905 opinion is in direct conflict withWadewitz in holding that Calfee acted in "good faith" as a matter of law. Wadewitz holds that "good faith" encompasses a balance between two separate aspects: a "need" aspect which considers the urgency or seriousness of the situation to which the official is responding and the availability of alternative courses of action, and a "risk" aspect which considers the nature and severity of the harm the official's actions could cause, the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent official. Id. at 467.
As Calfee was unable to recall the collision at trial or testify as to events immediately prior to his entering the intersection, there was no evidence as to the subjective facts he relied upon in proceeding through the red light, and no evidence that the need to proceed through the red light without slowing down outweighed the risk such act might create. In absence of such evidence, Wadewitz does not allow "good faith" to be found as a matter of law, and the majority opinion erred in holding to the contrary.
In considering only the evidence and reasonable inferences supporting the jury's findings in the light most favorable to the verdict, and after disregarding all evidence and inferences to the contrary, there is more than a scintilla of evidence to support the jury's finding of lack of good faith. Ostwald, the paramedic tending to the patient in the back of the ambulance, testified that in deciding whether to code an emergency run, he relied on the fact that Calfee was required by HFD regulations to slow down at intersections and red lights. Calfee, the driver, testified that he did not know if the siren was on, and that he had no memory of running the red light and colliding with appellant Rivas' vehicle. Ostwald further testified that it was 4:00 a.m., they were tired, the patient was uncooperative and hostile and kept removing his restraints, and that they wanted to get the patient to the hospital and "get it over with." There was no evidence that the patient was in immediate danger to either himself or to the paramedics. The patient's only injury was a bloody nose. The majority opinion, however, specifically states that while this evidence that the patient was not in immediate danger was pertinent to the "need" factor, it was insufficient to support the jury's finding against good faith. By ignoring evidence which supported the lack of a need to get the patient to the hospital as quickly as possible, the majority opinion violates both Wadewitz and the standard of review we are required to follow here. This would hold true regardless of whether we are considering the decision to code to an emergency run, or the running of the red light without first slowing down.
The majority opinion has erred in upholding the judgment n.o.v., as Calfee's failure to slow down before proceeding through the red light was not shown to be either factually or legally an exercise of discretionary duty. The majority has further erred in holding that there was no evidence to support the jury's finding against good faith, and erred in holding that good faith was shown as a matter of law. Both good faith and "safe operation" type of inquiries will all but invariably be fact specific, and questions to be determined by the jury. Cf. City of Lancaster v. Chambers,883 S.W.2d 650, 657 (Tex. 1984). Both this court's and the trial court's action in seizing and usurping the jury's sole authority to determine the disputed facts, borders on the unconstitutional deprivation of the right to trial by jury. See Tex. Const. Art. I, § 15; Pool v. Ford Motor Co., 715 S.W.2d 629, 633-34 (Tex. 1986). A court of appeals may unfind facts, but cannot find them.See id. at 634. Today, this court substitutes its view for that of the jury.2 *Page 906
I would grant appellants' second motion for rehearing, withdraw the majority decision, reverse the judgment n.o.v, and enter judgment in accordance with the jury's verdict.