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Ramos v. City of Laredo

Court of Appeals of Texas, Fourth District, San Antonio

March 28, 2018

Victor RAMOS, Appellant
v.
CITY OF LAREDO, Appellee

          From the 111th Judicial District Court, Webb County, Texas Trial Court No. 2015CVT003985 D2 Honorable Susan D. Reed, Judge Presiding

          Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice

          OPINION

          Rebeca C. Martinez, Justice

         Victor Ramos sued the City of Laredo and Laredo Police Department Officer Gustavo Guerra, Jr. for injuries allegedly sustained when he was hit by Guerra's police motorcycle. Before trial, Ramos nonsuited Officer Guerra. The jury found Officer Guerra negligently struck Ramos, but also found Guerra was not acting in the scope of his employment. Ramos filed a motion to disregard the jury's findings and a motion for judgment notwithstanding the jury's verdict; the trial court denied both motions and rendered a take-nothing judgment in favor of the City. On appeal, Ramos contends the trial court erred in submitting the question regarding scope of employment to the jury and in denying his post-verdict motions. We reverse and render.

         Background

         On January 16, 2015, at approximately 11:30 p.m., Ramos was on his motorcycle entering North Central Park in Laredo. Ramos was making a left-hand turn into the park when he was struck by another motorcycle with flashing lights attempting to exit the park in the wrong lane. The motorcycle did not stop and fled the scene of the accident. Ramos noticed the motorcycle was black with white trim and had "police lights" on the back. Though Ramos was knocked off his motorcycle and suffered injuries, he did not call 911 at the scene of the accident. He was in shock and went home, and later went to the emergency room.

         Laredo Police Department (LPD) was not cooperative in Ramos's investigation of the accident. Surveillance video obtained from a private citizen revealed the presence of a police motorcycle in the area at the time of the accident. Ramos's attorney filed an Open Records Request which revealed photographs of scratches on a LPD motorcycle driven by Officer Guerra.

         On December 23, 2015, Ramos sued the City of Laredo and Police Officer Gustavo Guerra, Jr., individually, for the following causes of action: injury by a motor vehicle; negligence under the Texas Tort Claims Act; negligent entrustment of motor vehicle; negligent hiring; assault; and intentional infliction of emotional distress. Ramos alleged that Guerra's actions were done "with the full authorization, ratification or approval" of the City or were done "in the routine and normal course and scope of employment." Ramos sought damages for physical bodily injury, mental anguish, physical pain and suffering, medical expenses, and property damage, as well as exemplary damages.

         On January 15, 2016, the City filed an answer, plea to the jurisdiction, and request for disclosures. The City claimed that the trial court lacked subject matter jurisdiction over Guerra pursuant to Section 101.106(e) of the Texas Tort Claims Act, and thus requested that suit be dismissed as to Guerra. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (West 2011). The City further claimed that governmental immunity shielded it from liability for Guerra's actions.

         Thereafter, on March 2, 2016, Ramos nonsuited Officer Guerra without prejudice. The City filed an Amended Plea to the Jurisdiction on November 14, 2016 stating that no waiver of immunity existed under the Texas Tort Claims Act. The City claimed that Guerra was on leave on the date of the accident, was not involved in the accident, and was not acting in the course and scope of his employment at the time of the accident. Ramos filed a supplemental response to the Amended Plea to the Jurisdiction. In the response, he claimed that by pleading "official immunity, " the City judicially admitted that Guerra was acting in the course and scope of his employment. On January 15, 2017, the trial court denied the City's Amended Plea to the Jurisdiction and the case proceeded to trial.

         At trial, Officer Guerra testified by deposition that he was off duty on January 16, 2015. Guerra stated he was asleep at his home at approximately 11:30 p.m. on January 16, 2015. He claimed that the scrapes on the side of his motorcycle were caused when he rubbed against a metal gate at his house. LPD Officer Christina Pena, who prepared the accident report, testified that no motorcycle officers were on duty on the night of the accident.

         The jury found that Officer Guerra was the driver who struck Ramos and that his negligence caused the accident. The jury determined that $2, 000 would compensate Ramos for past lost earning capacity and that $30, 000 would compensate Ramos for past medical care. However, the jury also found that Guerra was not acting in the scope of his employment at the time of the accident (Question No. 4).[1] Thus, the trial court rendered a take-nothing judgment in favor of the City.

         Before the trial court rendered its final judgment, it considered two motions filed by Ramos. Ramos filed a Motion for Judgment Notwithstanding the Verdict asking the court to disregard the jury's negative finding to Question No. 4, which asked, "On the occasion in question, was Gustavo Guerra acting in the scope of his employment?" Ramos argued that the City established Guerra was acting in the course and scope of his employment when it filed its Plea to the Jurisdiction alleging and pleading that Guerra was entitled to official immunity. Ramos claimed that official immunity "can ONLY be claimed if [Guerra] was in the Course and Scope of employment" and thus the City "judicially admitted and is estopped and/or barred by res-judicata from claiming otherwise."

         Ramos also filed a Motion to Disregard Jury Finding similarly arguing that the jury's answer to Question No. 4 should be disregarded in light of its other answers and in light of the fact that the City "judicially admitted" Guerra was acting in ...


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