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Gomez v. City of Houston

Court of Appeals of Texas, Fourteenth District

October 29, 2019


          On Appeal from the 333rd District Court Harris County, Texas Trial Court Cause No. 2013-59953



         A motorist was involved in a traffic collision with one of several City of Houston police officers responding to the scene of a robbery in progress. The motorist sued the City, alleging negligence. The City responded by filing a plea to the jurisdiction, asserting immunity from suit. The trial court granted the plea and dismissed the motorist's suit. After a panel of this court decided this appeal, the en banc court voted to grant the City's Motion for En Banc Reconsideration, and the en banc court has reconsidered this appeal.

         The motorist asserts various arguments as to why the trial court erred in granting the City's plea. We conclude that the City did not conclusively establish the good faith of the officer involved in the collision, and that a material fact issue exists as to whether that officer acted recklessly. Therefore, we reverse the trial court's judgment and remand the case to the trial court for further proceedings.

         I. Factual and Procedural Background

         Appellant Maria Christina Gomez was driving eastbound on Crosstimbers Road on a cold and rainy Christmas Eve morning. As she approached the intersection at Lockwood, the traffic light facing her turned green and she proceeded into the intersection. A City police car slid into the intersection and collided with Gomez's vehicle. According to Gomez, Bobby Joe Simmons, the officer who was driving the police car, was not using the police car's emergency lights or siren when his car collided with hers.

         That morning Simmons was on patrol when he was dispatched to respond to a nearby armed robbery in progress. According to Simmons, an armed robbery is normally a Priority One call, but dispatch reduced this call to Priority Two due to the weather conditions. Simmons testified that as he responded to the robbery-in-progress call, he turned on his emergency lights but not his siren. Simmons explained that the Houston Police Department's policy for Priority Two calls normally requires a silent approach. Simmons further explained that an officer retains the discretion to use the emergency lights and siren on a Priority Two call when the officer deems it necessary and notifies the dispatcher. Simmons decided that he did not need to exceed the posted speed limit of 35 miles per hour to arrive safely and quickly at the robbery scene. As his patrol car approached the intersection, Simmons looked down to increase the volume of his police radio. When he looked up, he was startled to see that the Crosstimbers traffic light had turned yellow. He pressed his brakes, but he was unable to stop his police car on the wet street, and the car slid into the intersection, where it collided with Gomez's vehicle.

         Houston police officer Isaac Jefferson investigated the collision and prepared the investigation report. Jefferson noted in his report, among other things, that Simmons was responding to a robbery call when the collision occurred. Jefferson also stated in his report that Simmons was driving south on Lockwood without his emergency lights or siren engaged when the signal light changed from green to yellow. Jefferson then stated that Simmons "applied his brakes but because the roads were wet he was unable to stop." Finally, Jefferson determined that Simmons disregarded a stop-and-go signal and so was at fault in the collision.

         During his deposition, Simmons testified that he received a letter of reprimand as a result of the collision. The reprimand letter notified him that he was at fault in the collision. Simmons also testified that he did not contest the fault determination because he already had admitted fault in the collision.

         The City of Houston filed a "First Amended Plea to the Jurisdiction and Motion to Dismiss" (the "Jurisdictional Plea"), including as exhibits (1) a business-records affidavit containing Houston Police Department call slips associated with the robbery, (2) an affidavit of Simmons, (3) an affidavit of Jefferson, and (4) a document explaining Priority Two calls. Much of Jefferson's affidavit duplicates Simmons's affidavit. Like Simmons, Jefferson states in his affidavit that "Officer Simmons'[s] emergency lights and car headlights were on throughout this time." Jefferson then opined that "based on all the facts stated above, another reasonably prudent law enforcement officer, including myself, under the same or similar circumstances could have believed that the need to quickly reach the incident scene outweighed any minimal risk of harm to others and that all of Officer Simmons's decisions and actions before the accident were justified and reasonable based on his perception of the facts at the time." Finally, Jefferson concluded that "based on all the facts stated above, Simmons should not have known or believed that his driving to reach the armed robbery in progress and then to assist in pursuing the suspect posed a high degree of risk of serious injury to others and that there is no way Officer Simmons did not care about the results of any risk of injury to others."

         After Gomez filed suit against the City, the City filed the Jurisdictional Plea asserting that the trial court lacked jurisdiction over the claims because the City had not waived its governmental immunity. The City made two arguments in its Jurisdictional Plea. First, the City asserted that Simmons was protected by official immunity, which preserved the City's governmental immunity. Second, the City argued that it was immune because the emergency exception in the Texas Tort Claims Act (the "Act") barred any possible waiver of its governmental immunity. The trial court granted the City's plea and dismissed Gomez's lawsuit. This appeal followed.

         In December 2018, a panel of this court reversed the trial court's judgment and remanded the case to the trial court for further proceedings, issuing a memorandum opinion authored by Justice Busby, in which Chief Justice Frost and Justice Boyce joined. The City filed a Motion for Rehearing and a Motion for En Banc Reconsideration. Under Texas Rule of Appellate Procedure 49.3, this court must deny the Motion for Rehearing because Justices Boyce and Busby are no longer on this court. See Tex. R. App. P. 49.3 (stating that "A motion for rehearing may be granted by a majority of the justices who participated in the decision of the case. Otherwise, it must be denied."). A majority of the en banc court voted to grant the Motion for En Banc Reconsideration, and the en banc court has reconsidered this appeal. Today, the en banc court withdraws the memorandum opinion and judgment of December 21, 2018, and issues this En Banc Majority Opinion and the en banc court's judgment. Justice Jewell has authored an En Banc Dissenting Opinion, in which Justices Wise and Spain join.

         II. Issues and Analysis

         A. Standard of Review

         In filing the Jurisdictional Plea, the City challenged the trial court's subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Because subject-matter jurisdiction is a question of law, we conduct a de novo review of the trial court's granting of the plea. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In the Jurisdictional Plea, the City challenged the existence of jurisdictional facts; so, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. See id. If the evidence created a fact question as to the jurisdictional issue, then the trial court should have denied the Jurisdictional Plea. See id. at 227-28. But, if the relevant evidence was undisputed or failed to raise a fact question on the jurisdictional issue, then the trial court should have ruled on the Jurisdictional Plea as a matter of law. Id. at 228.

         B. The City's Failure to Establish Official Immunity as a Matter of Law

         The City, as a municipality and political subdivision of the State, cannot be vicariously liable for an employee's acts unless its governmental immunity has been waived. City of Pasadena v. Belle, 297 S.W.3d 525, 529 (Tex. App.-Houston [14th Dist.] 2009, no pet.). Under the facts of this case, the only possible waiver of the City's immunity from suit and liability is found in section 101.021 of the Act, which provides in relevant part:

A governmental unit in the state is liable for . . . property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law . . . .

Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1) (West 2011).

         The parties agree Gomez's claims arise from the use of a motor vehicle. They also agree that Simmons was acting within the scope of his employment when he responded to the dispatcher's call. One of the matters the parties dispute, which we address here, is whether Simmons "would be personally liable to the claimant[s] under Texas law." A second dispute, which we address in section C, below, is whether an exception to the section 101.021 waiver applies.

         The City contends the evidence conclusively establishes that Simmons retained his official immunity because he responded to the robbery call in good faith. According to the City, that means Simmons could not be personally liable to Gomez according to Texas law, and the City retains its governmental immunity. Gomez asserts on appeal that the City failed to establish good faith as a matter of law because the City's proof of good faith presumed that Simmons activated his car's emergency lights, even though there is a fact issue on this point, and the City should have based its proof of good faith on Simmons not having activated his car's emergency lights.

         Because official immunity is an affirmative defense, the burden rests on the City to establish all elements of the defense. See Green v. Alford, 274 S.W.3d 5, 16 n.11 (Tex. App.-Houston [14th Dist.] 2008, pet. denied) (en banc); Belle, 297 S.W.3d at 530. Under the official-immunity defense, a government employee may be immune from a lawsuit that arises from the performance of the employee's discretionary duties in good faith, provided the employee was acting within the scope of the employee's authority. Belle, 297 S.W.3d at 530. As explained above, only good faith is in dispute.

         In this context, a court must measure good faith against a standard of objective legal reasonableness, without regard to the police officer's subjective state of mind. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). To be entitled to summary judgment, the City must carry the burden to prove conclusively that a reasonably prudent police officer, under the same or similar circumstances, could have believed his actions were justified based on the information he possessed at the time. Telthorster v. Tennell, 92 S.W.3d 457, 465 (Tex. 2002). The City need not prove that it would have been unreasonable not to take these actions, or that all reasonably prudent officers would have taken the same actions. See id. Rather, the City must prove conclusively that a reasonably prudent officer, under the same or similar circumstances, might have reached the same decision. See id. That Simmons may have been negligent will not defeat good faith; this test of good faith does not inquire into "what a reasonable person would have done, " but into "what a reasonable officer could have believed." Id. (internal quotations and citations omitted). The good-faith standard is analogous to an abuse-of-discretion standard that protects "'all but the plainly incompetent or those who knowingly violate the law.'" Texas Dept. of Public Safety v. Bonilla, 481 S.W.3d 640, 643 (Tex. 2015) (per curiam) (quoting City of San Antonio v. Ytuarte, 229 S.W.3d 318, 321 (Tex. 2007) (per curiam)).

         If the City met its summary-judgment burden, then to have raised a fact issue, Gomez must have done more than show that a reasonably prudent officer could have reached a different decision. See id. Instead, Gomez must have offered evidence that no reasonable officer in Simmons's position could ...

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