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City of Dallas v. Rodriguez

Court of Appeals of Texas, Fifth District, Dallas

August 7, 2019

CITY OF DALLAS, Appellant
v.
ROSA RODRIGUEZ AND MARIO RODRIGUEZ, Appellees

          On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-14889.

          Before Justices Bridges, Brown, and Nowell

          MEMORANDUM OPINION

          DAVID L. BRIDGES JUSTICE.

         The City of Dallas appeals the trial court's order denying its plea to the jurisdiction in the underlying case involving Rosa Rodriguez' collision with a marked police car. In three issues, the City argues the trial court abused its discretion in sustaining Rodriguez' objections to the City's evidence offered in support of its plea to the jurisdiction, the trial court erred in denying its plea to the jurisdiction, and the City is immune from suit because its officer is entitled to official immunity. We reverse the trial court's order, grant the City's plea to the jurisdiction, and dismiss appellees' claims for want of subject matter jurisdiction.

         In October 2017, Rodriguez[1] filed her original petition in which she alleged she was injured when a vehicle operated by Veronica Alejandro, a Dallas police officer, disregarded a red light and caused Rodriguez' vehicle to strike Alejandro's vehicle. Rodriguez alleged claims of negligence, gross negligence, respondeat superior, and negligence per se.

         In October 2018, the City filed a plea to the jurisdiction in which it argued Alejandro was entitled to official immunity and the City was therefore shielded from liability by sovereign immunity. Specifically, the City argued Alejandro was performing a discretionary function within the scope of her employment and acting in good faith. The plea to the jurisdiction was supported by Alejandro's affidavit in which she described the circumstances of the accident and explained her actions and perception of the urgency of the situation and the risks involved.

         In response to the City's plea to the jurisdiction, Rodriguez first objected to Alejandro's affidavit as "hearsay and violations of the best evidence rule." Rodriguez argued Alejandro's affidavit was fatally defective on the grounds that it failed to unequivocally show it was based on personal knowledge and it made no representation that the facts disclosed were true. Rodriguez also objected that Alejandro's affidavit contained self-serving statements, legal conclusions, and conclusory statements of fact. Accordingly, Rodriguez argued, five paragraphs of Alejandro's affidavit should be excluded.

         In addition, Rodriguez argued Alejandro approached the intersection where the traffic signal controlling travel for Rodriguez was green, and the traffic signal for Alejandro was red. Nevertheless, Alejandro approached the intersection without coming to a complete stop to ensure she could safely cross the intersection and avoid a collision. Rodriguez alleged Alejandro entered the intersection on a red light and proceeded through the intersection without her lights and sirens on. Rodriguez attached a copy of the collision report which contained a "City Driver's Statement" in which Alejandro stated she came to a complete stop before entering the intersection and proceeded very slowly through the intersection. Alejandro also stated that "all traffic on the northbound side had stopped and was giving [her] passage." Rodriguez argued that, although Alejandro stated she came to a complete stop at the intersection, her dash cam showed her speed never read zero until after the collision.

         Rodriguez alleged the accident was investigated by the Dallas police, and the investigator found that Alejandro's disregarding a stop and go signal was a contributing factor in the accident. The investigator also "noted that the vehicle in front of [Rodriguez] proceeded through the intersection prior to [Rodriguez]," and this contradicted Alejandro's statement that northbound travel had stopped to allow her to proceed through the intersection. Rodriguez argued Alejandro's actions were not discretionary because a general order of the Dallas police chief required officers to "come to a complete stop" before entering an intersection; therefore, because the order was mandatory, Alejandro had no discretion to ignore the order and was required to obey the order. Rodriguez also argued Alejandro did not act in good faith because she violated the order requiring her to come to a complete stop and the traffic laws of Texas when she ran a red light without coming to a complete stop. In making this argument, Rodriguez argues Alejandro's dash cam "shows the triggers for her lights and sirens to be going on and off up until the accident" and, "in listening to the audio it is clear that Officer Alejandro's overhead sirens were not activated and cannot be heard until after the collision." Rodriguez added "[i]t was later noted the sirens on Officer Alejandro's vehicle were not working properly."

         In her brief, Rodriguez argues Alejandro's dash cam shows that she never came to a complete stop at the intersection. Rodriguez argues Mario Rodriguez testified Alejandro was driving without her lights and siren when the collision occurred, and an incident report stated Alejandro's sirens did not work properly, contradicting Alejandro's statement in her affidavit that her emergency lights, siren, and air horn were activated. Rodriguez complains Alejandro did not mention in her affidavit that her view was obstructed by another vehicle and that at least one other vehicle besides Rodriguez' did not stop and yield.

         The dash cam video shows Alejandro constantly honking her patrol car's air horn as she approached the intersection where the collision occurred. The video's GPS "speed" indication shows Alejandro's speed at 23 miles per hour just before Alejandro appears to come to a complete stop. The speed indicator quickly drops to nine and then to two miles per hour after she stopped and the indicator immediately shows her speed at three miles per hour as she slowly entered the intersection. It is obvious from viewing the video in relation to the GPS speed indicator that the indicator is delayed in its indication of Alejandro's speed at a given instant. Alejandro's stop at the intersection is very brief, but the stop is apparent from the video, and it is clear that the GPS simply did not have time to read zero before Alejandro was moving again. In effect, the laws of physics showed Alejandro stopped, and the readout on the GPS was not accurate. Alejandro's speed fluctuated between two, three, six, three, and seven miles per hour as she proceeded through the intersection, and she reached fourteen miles per hour and had almost cleared the intersection when the collision occurred. As Alejandro proceeded, all other vehicles cleared the intersection, giving her a clear line of sight at the road ahead.

         The video also indicates "Triggers" including lights, siren, and brakes. Just as Alejandro stops at the intersection, the siren indicator flickers on and off for a second, but Alejandro was continuously honking her air horn at the time, and it is difficult to hear the siren clearly until after the collision when Alejandro stops honking the air horn. However, the siren is audible immediately before the collision as Alejandro pulls into the intersection. The lights indicator stayed on continuously throughout Alejandro's approach to the intersection and the following collision, although the lights themselves are not visible in the video.

         On December 31, 2018, the trial court signed an order denying the City's plea to the jurisdiction. The order also sustained Rodriguez' objections to Alejandro's affidavit except for her statement that "The potential danger posed by proceeding through the intersection was far less, considering the above factors, than the danger posed to the officers and victims involved in the 6XE major disturbance (violence) emergency." This appeal followed.

         In its first issue, the City argues the trial court abused its discretion in sustaining Rodriguez' objections to the City's evidence offered in support of its plea to the jurisdiction. The City argues the trial court erred in striking twenty sentences of Alejandro's affidavit, effectively striking the bulk of Alejandro's testimony. Specifically, the City argues that, by "failing to identify which of her general objections applied to the larger parts of Alejandro's affidavit being ...


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