Bay City, Texas v. Wade McFarland

• Court: Court of Appeals of Texas
• Decided: May 11, 2015
• Docket: 13-15-00122-CV
• Status: Published

Opinion

ACCEPTED 13-15-00122-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 5/11/2015 1:44:14 PM DORIAN RAMIREZ CLERK

NO. 13-15-00122-CV

FILED IN 13th COURT OF APPEALS IN THE THIRTEENTH COURT OFCORPUS APPEALSCHRISTI/EDINBURG, TEXAS CORPUS CHRISTI, TEXAS 5/11/2015 1:44:14 PM DORIAN E. RAMIREZ Clerk

THE CITY OF BAY CITY, TEXAS Appellant/Defendant v. WADE MCFARLAND Appellee/Plaintiff

On Appeal from the 23rd District Court, Matagorda County, Texas Trial Court Cause No. 12-H-0516-C; Honorable Ben Hardin, Presiding

APPELLANT'S BRIEF

Steven D. Selbe State Bar No. 18004600 Andrew J. Pratka State Bar No. 24079159 GORDON & REES, LLP 1900 W. Loop S., Ste. 1000 Houston, TX 77027 Telephone: (713) 961-3366 Facsimile: (713) 961-3938 sselbe@gordonrees.corn apratka@gordonrees.com

Counsel for Appellant The City of Bay City, Texas

ORAL ARGUMENT REQUESTED PARTIES AND COUNSEL

The parties to the trial court's judgment and the names and addresses of all trial and appellate counsel are listed below. TEX. R. APP. P. 3 8.1(a).

Defendant/Appellant The City of Bay City, Texas

Steven D. Selbe State Bar No. 18004600 Andrew J. Pratka State Bar No. 24079159 GORDON & REES LLP 1900 West Loop South, Suite 1000 Houston, Texas 77027 Telephone: (713) 961-3366 Facsimile: (713) 961-3938 sselbe@gordonrees.corn apratka@gordonrees.com

Plaintiff/Appellee Wade McFarland

David Romagosa State Bar No. 24047493 FARRAR & BALL, LLP 1010 Lamar, Suite 1600 Houston, TX 77002 Telephone: (713) 221-8300 Facsimile: (713) 221-8301 david@fbtrial.corn

ii TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT ix

STATEMENT OF THE CASE 1

STATEMENT OF JURISDICTION 2

STATEMENT OF FACTS 3 SUMMARY OF ARGUMENT 4

ARGUMENTS AND AUTHORITIES 5

I. STANDARDS OF REVIEW 5 II. STANDARD FOR PLEA TO THE JURISDICTION 5

III. TRADITIONAL SUMMARY JUDGMENT STANDARD 6

A. Governmental Immunity 7 B. Official Immunity 7 IV. ISSUE NO. 1: THE CITY IS ENTITLED TO A PRESUMPTION OF GOVERNMENT IMMUNITY AND THE CITY'S SOVEREIGN IMMUNITY IS NOT WAIVED BECAUSE OFFICER KUNZ OPERATED HER PATROL CAR IN COMPLIANCE WITH THE LAW AND NOT IN A RECKLESS MANNER OR WITH CONSCIOUS INDIFFERENCE 8 A. The Emergency Exception to Immunity Waiver is Applicable 8

1. Officer Kunz Complied With Texas Traffic Laws 9

2. Officer Kunz Did Not Act Recklessly or With Conscious Disregard for the Safety of Others 11

a. Texas Department of Public Safety v. Sparks 14

b. City of Pasadena v. Kuhn 19

c. Smith v. Janda 20

iii d. No Evidence of Recklessness 22

V. ISSUE NO. 2: THE CITY IS ENTITLED TO OFFICIAL IMMUNITY BECAUSE OFFICER KUNZ ACTED IN GOOD FAITH AND A REASONABLY PRUDENT POLICE OFFICER, UNDER THE CIRCUMSTANCES, WOULD HAVE REACHED THE SAME DECISION 26 A. Officer Kunz is Entitled to Official Immunity and the City is Entitled to Sovereign Immunity 27 1. Officer Kunz Performed Discretionary Duties within Her Scope of Authority 28 2. Officer Kunz Acted in Good Faith 28 3. City of San Angelo Fire Department v. Hudson 30 4. Affidavit and Testimony of Officer Kunz 32 a. Imminent Need 32 b. Immediate Danger Outweighed Risk 33 5. Green v. Alford Is Distinguishable From the Present Case 35 6. Plaintiff's Expert's Opinion Fails to Offer Any Reliable Evidence of Bad Faith 37 C. Public Policy Underlying Official Immunity 39 CONCLUSION 40 PRAYER 40

CERTIFICATE OF COMPLIANCE UNDER TEX. R. APP. P. 9.4(I)(3) 41 CERTIFICATE OF SERVICE 42 APPELLANT'S APPENDIX 43

iv TABLE OF AUTHORITIES Cases Barker v. City of Galveston, 907 S.W.2d 879 (Tex. App.-Houston [1st Dist.] 1995, writ denied) 30 Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) 6 Cathey v. Booth, 990 S.W.2d 339 (Tex. 1995) 6 City of Amarillo v. Martin, 971 S.W.2d 426 (Tex. 1998) 9, 12, 13, 20, 22, 23, 24 City of Arlington v. Barnes, No. 02-07-249-CV, 2008 Tex. App. LEXIS -Fort 2236 (Tex. App.Worth Mar. 27, 2008, pet. denied) 17, 25, 43 City of Dallas v. Garcia, 1998 Tex. App. LEXIS 1785 (Tex. App.- Dallas 1998, no pet.) 30 City of Lancaster v. Chambers, 884 S.W.2d 650 (Tex. 1994) 7, 8, 27, 28, 29, 37, 40 City of Laredo v. Varela, 2011 Tex. App. LEXIS 3485 (Tex. App.-San Antonio, 2011, pet. denied) 18, 22, 26, 43 City of Pasadena v. Kuhn, 260 S.W.3d 93 (Tex. App.-Houston [1st Dist.] 2008, no pet.) 11, 13, 19, 20, 22, 24, 25 City of San Angelo Fire Dep't v. Hudson, 179 S.W.3d 695 (Tex. App.2005, -Austin no pet.) 13, 18, 22, 24, 25, 30, 31, 32 City of San Antonio v. Hartman, 201 S.W.3d 667 (Tex. 2006) 9, 11, 14 Cont 'l Coffee Prod. Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996) 5 DeWitt v. Harris County, 904 S.W.2d 650 (Tex. 1995) 7, 27

Green v. Alford, 274 S.W.3d 5 (Tex. App.—Houston [14th Dist.] 2008, pet denied) 35, 36

Harlow v. Fitzgerald, 457 'U.S. 800 (1982) 40

Kaufman County. v. Leggett, 396 S.W.3d. 24 (Tex. App.—Dallas 2012, pet. denied) 9 Lamar Univ. v. Doe, 971 S.W.2d 191 (Tex. App.—Beaumont 1998, no pet.) 7

Lowe v. Tex. Tech Univ., 540 S.W.2d 297 (Tex. 1976) 7

Mem? Villages Police Dep't v. Gustafson, 2011 Tex. App. LEXIS 6595 (Tex. App.— Houston [1st Dist.] 2011, no pet.) 30

Montgomery County v. Fuqua, 22 S.W.3d 662 (Tex. App.—Beaumont 2000, no pet.) 7

Nixon v. Mister Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1995) 6

Smith v. Janda, 126 S.W.3d 543 (Tex. App.—San Antonio 2003, no pet.) 13, 20, 21, 22, 24, 34

State v. McGeorge, 925 S.W.2d 105 (Tex. App.—Houston [14th Dist.] 1996, writ denied) 30

vi Telthorster v. Tennell, 92 S.W.3d 457 (Tex. 2002) 39

Tex. Ass 'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) 5

Tex. Dep't of Pub. Safety v. Sparks, 347 S.W.3d 834 (Tex. App.—Corpus Christi 2011) 14, 15, 16, 17, 18, 22, 23, 25, 39

Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) 5, 7

Tex. Highway Dep't v. Jarrell, 418 S.W.2d 486 (Tex. 1967) 5, 6

Torres v. Owens, 380 S.W.2d 30 (Tex. Civ. App.—Corpus Christi 1964, writ refused n.r.e.) 28

Travis v. City of Mesquite, 830 S.W.2d 94 (Tex. 1992) (Cornyn, J., concurring) 39

Univ. of Houston v. Clark, 38 S.W.3d 578 (Tex. 2000) 8, 39

Wadewitz v. Montgomery, 951 S.W.2d 464 (Tex. 1997) 29

Statutes TEX. Civ. PRAC. & REM. CODE § 101.021(1)(B) 7, 9

TEX. Civ. PRAC. & REM. CODE § 101.055(2) ix, 8, 9, 11, 14, 19, 20, 21, 26

TEx. Civ. PRAC. & REM. CODE § 51.014(a)(8) 2

TEX. GOV'T CODE ANN. § 312.002 11

TEX. TRANSP. CODE § 545.156 9, 10, 24, 34

TEX. TRANSP. CODE § 546.001(2) 3, 9, 10, 16, 18, 22, 24, 26

vii RULES

TEx. R. APP. P. 38.1(a). ii

TEX. R. APP. P. 39.7 ix

TEX. R. APP. P. 9.4(i)(2)(B) 41

viii STATEMENT REGARDING ORAL ARGUMENT

Appellants request oral argument of this appeal. TEX. R. APP. P. 39.7. Oral

argument will be helpful to the court in deciding whether the waiver of government

immunity exclusion contained in Section 101.055(2) of the Texas Practices &

Remedies Code applies in order to determine whether or not the trial court has

subject matter jurisdiction to determine the issue in controversy.

ix TO THE HONORABLE COURT OF APPEALS:

Appellant the City of Bay City, Texas (the "City" or "Bay City") requests

that this Court reverse the trial court's Order denying its Plea to the Jurisdiction

and Traditional Motion for Summary Judgment and render judgment for Appellant.

STATEMENT OF THE CASE

This is a case for damages arising out of injuries Plaintiff/Appellee Wade

McFarland ("McFarland" or "Plaintiff') alleges he received in an

automobile/motorcycle accident with Bay City Police Officer Kimberly Kunz

("Officer Kunz" formerly "Officer Martinez") that occurred on June 5, 2011, in

Bay City, Texas. (CR 5-8). Plaintiff filed suit against Bay City alleging negligent

hiring, training, supervision, and retention of Officer Kunz, and for vicarious

liability under the theory of respondeat superior for the negligence, negligence per

se, gross negligence and/or malice of Officer Kunz. (CR 5-8).

On June 9, 2014, the City filed a Plea to the Jurisdiction and Traditional

Motion for Summary Judgment asking the Court to grant judgment for the City and

dismiss Plaintiffs claims with prejudice for lack of subject matter jurisdiction.

(CR 14-49). On March 6, 2015, after oral hearing, the Court denied the City's Plea

to the Jurisdiction. (CR 79). The City timely filed its Notice of Interlocutory

Appeal on February 27, 2015. (CR 80-81). STATEMENT OF JURISDICTION

This court has jurisdiction under Section 51.014(a)(8) of the Texas Civil

Practice & Remedies Code because this is an accelerated appeal from an

interlocutory order denying a plea to the jurisdiction of a governmental unit in a

civil lawsuit in the 23rd Judicial District of Matagorda County, Texas, and the

denial of a motion for summary judgment based on the official immunity of

Officer Kunz.

2 STATEMENT OF FACTS

On June 4, 2011, Officer Kunz of the Bay City Police Department was

responding to a domestic disturbance call involving multiple combatants with

weapons in a household with children. (CR 11, 35). Officer Kunz was driving a

marked patrol car following another officer to the disturbance. (CR 30, 35). Both

vehicles had their lights and sirens activated in response to the disturbance call and

were approaching a one way stop sign intersection in a residential neighborhood.

(CR 30-31, 35). The lead patrol car reached the intersection and proceeded

through the stop sign ahead of Officer Kunz. (CR 30-31, 35).

Officer Kunz reached the intersection a short time later and slowed down to

check for oncoming traffic. (CR 31, 35). As Officer Kunz was approaching the

intersection, she observed Plaintiff on her left approaching the intersection on a

motorcycle. (CR 31, 35-36). Plaintiff was required to yield the right of way for an

emergency vehicle under Texas law, however, Plaintiff failed to do so. (CR 33,

35-36). Officer Kunz continued through the intersection rolling through the stop

sign at a low rate of speed as permitted by TEx. TRANSP. CODE § 546.001(2). (CR

30-32, 35-36, 38).

Plaintiff failed to yield and proceeded through the intersection despite the

fact that Officer Kunz's patrol car's emergency lights and siren were activated.

(CR 30-31, 35-36, 38). Plaintiff testified that he saw the lead patrol car go through

3 the intersection with its lights and sirens activated, but Plaintiff simply never

looked to see if another patrol car was following behind the lead car. (CR 42).

Officer Kunz was not driving at a high rate of speed and tried to avoid Plaintiff's

motorcycle, but was unable to prevent a collision. (CR 30-32, 35-36).

Plaintiff allegedly sustained injuries to his back and wrist as a result of the

incident. (CR 43). Plaintiff subsequently filed suit against Bay City alleging

negligent hiring, training, supervision, and retention of Officer Kunz, and for

vicarious liability under the theory of respondeat superior for the negligence,

negligence per se, gross negligence and/or malice of Officer Kunz. (CR 4-6).

SUMMARY OF ARGUMENT

The trial court erred in denying the City's Plea to the Jurisdiction and

Traditional Motion for Summary Judgment and the City is entitled to a dismissal of

Plaintiff's claims on the following grounds:

1. The City is entitled to a presumption of entitlement to government immunity and the City's sovereign immunity is not waived because Plaintiff failed to show Officer Kunz operated her patrol car in a reckless manner for immunity to be waived; and

2. The City is entitled to immunity because Officer Kunz is immune from liability for discretionary acts performed in good faith within the scope of her authority and a reasonably prudent police officer, under the circumstances, would have reached the same decision.

4 ARGUMENTS AND AUTHORITIES

I. STANDARDS OF REVIEW

Appellate courts reviewing a challenge to a trial court's subject matter

jurisdiction review the trial court's ruling de novo. Tex. Dept. of Parks and

Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). When reviewing a plea to

the jurisdiction in which the pleading requirements have been met and evidence

has been submitted to support the plea that implicates the merits of the case, the

appellate court must take as true all evidence favorable to the non-movant. Id.

II. STANDARD FOR PLEA TO THE JURISDICTION

It is well established under Texas law that a plaintiff bears the burden of

demonstrating that the Court has subject-matter jurisdiction over a claim asserted

against a governmental entity. Tex. Ass 'n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 446 (Tex. 1993). Subject-matter jurisdiction is essential to the power

of a tribunal to decide a case, and without subject-matter jurisdiction a court cannot

render a valid judgment. Id. at 443. Subject-matter jurisdiction cannot be

presumed and cannot be waived. Cont'l Coffee Prod. Co. v. Cazarez, 937 S.W.2d

444, 448-49 n.2 (Tex. 1996).

A plea to the jurisdiction is proper when a court lacks subject-matter

jurisdiction to determine the subject to the controversy. Tex. Highway Dep't v.

Jarrell, 418 S.W.2d 486, 488 (Tex. 1967). A plea to the jurisdiction raises defects

5 in jurisdiction that cannot be cured; therefore, the goal of the plea to the

jurisdiction is to have the court dismiss the cause of action. Jarrell, 418 S.W.2d at

489. The purpose of a plea to the jurisdiction is to defeat a cause of action without

regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue,

34 S.W.3d 547, 554 (Tex. 2000).

III. TRADITIONAL SUMMARY JUDGMENT STANDARD

The standard for traditional summary judgment is well established: (1) the

movant for summary judgment has the burden of showing there is not genuine

issues of material fact and is entitled to summary judgment as a matter of law; (2)

in deciding whether there is a disputed material fact issue precluding summary

judgment, evidence favorable to the non-movant will be taken as truth; and (3)

every reasonable inference must be indulged in favor of the non-movant and any

doubts resolved in its favor. Nixon v. Mister Prop. Mgmt. Co., 690 S.W.2d 546,

548-49 (Tex. 1995). Summary judgment is proper for a defendant when the

evidence conclusively negates an essential element of plaintiff's cause of action or

conclusively establishes of the elements of an affirmative defense so that the

defendant must be granted judgment as a matter of law. Cathey v. Booth, 990

S.W.2d 339, 341 (Tex. 1995).

6 A. Governmental Immunity

Governmental immunity from suit defeats a trial court's subject matter

jurisdiction and is properly asserted in a plea to the jurisdiction. Miranda, 133

S.W.3d at 226. A governmental unit may not be sued for the torts of its agents in

the absence of a constitutional or statutory provision that waives its governmental

immunity for alleged wrongful acts. Lowe v. Tex. Tech Univ., 540 S.W.2d 297,

298 (Tex. 1976). As such, dismissal for want of jurisdiction is proper when a

lawsuit is barred by governmental immunity. Lamar Univ. v. Doe, 971 S.W.2d

191, 196 (Tex. App.—Beaumont 1998, no pet.). If a plaintiff fails to allege facts

within a petition which establish a waiver of immunity, dismissal for lack of

subject-matter jurisdiction is appropriate. Montgomery County v. Fuqua, 22

S.W.3d 662, 665 (Tex. App.—Beaumont 2000, no pet.).

B. Official Immunity

Official immunity is an affirmative defense that protects government

employees from personal liability. City of Lancaster v. Chambers, 884 S.W.2d

650, 653 (Tex. 1994). When official immunity shields a governmental employee

from liability, sovereign immunity shields the governmental employer from

vicarious liability. TEX. Civ. PRAC. & REM. CODE § 101.021(1)(B). DeWitt v.

Harris County, 904 S.W.2d 650, 653 (Tex. 1995). Official immunity protects law

enforcement officers from liability for (1) the performance of discretionary duties; (2) within the scope of the officer's authority; (3) provided the officer acts in good

faith. Chambers, 883 S.W.2d at 653. Univ. of Houston v. Clark, 38 S.W.3d 578,

580-81 (Tex. 2000). Notably, official immunity has a different standard than mere

negligence. Chambers, 884 S.W.2d at 665.

IV. ISSUE NO. 1: THE CITY IS ENTITLED TO A PRESUMPTION OF GOVERNMENT IMMUNITY AND THE CITY'S SOVEREIGN IMMUNITY IS NOT WAIVED BECAUSE OFFICER KUNZ OPERATED HER PATROL CAR IN COMPLIANCE WITH THE LAW AND NOT IN A RECKLESS MANNER OR WITH CONSCIOUS INDIFFERENCE.

The Court erred in denying the City's Plea to the Jurisdiction because the

City is entitled to a presumption of entitlement to government immunity, Officer

Kunz acted in compliance with the laws applicable to an emergency action and did

not drive her car recklessly or with conscious indifference to the safety of others.

A. The Emergency Exception to Immunity Waiver is Applicable The Texas Tort Claims Act waives immunity from liability and suit only

under narrow and specific circumstances listed in the Act. In addition, the Act

excludes and/or excepts the waiver of immunity in emergency situations even if

the waiver of immunity would otherwise apply. Section 101.055(2) of the Act

governs the waiver of government immunity in emergency actions and states:

This chapter does not apply to a claim arising . . . from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of

8 such law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others .. .

TEX. Civ. PRAC. & REM. CODE § 101.055(2). Courts interpreting this provision

have held that "[w]hen the exception applies, the [Act] is unavailable as a waiver

of immunity even if the facts otherwise fall within a waiver found in Section

101.021." Kaufman County v. Leggett, 396 S.W.3d. 24, 29 (Tex. App.—Dallas

2012, pet. denied) (citing City of San Antonio v. Hartman, 201 S.W.3d 667, 671-72

(Tex. 2006)).

Accordingly, government immunity is not waived pursuant to Section

101.055(2) of the Act if the government employee acted in compliance with

applicable laws and/or ordinances, or in the absence of such, if the government

employee's actions were not taken with conscious indifference or reckless

disregard for the safety of others.

1. Officer Kunz Complied With Texas Traffic Laws

Government immunity is not waived in this instance, because Officer

Kunz's actions while responding to the emergency complied with Texas traffic

laws.

Under Texas law, a peace officer has the right-of-way at an intersection

when operating under emergency circumstances. City of Amarillo v. Martin, 971

S.W.2d 426, 432 (Tex. 1998); TEX. TRANSP. CODE §§ 545.156 and 546.001 et seq.

Section 546.001(2) of the Texas Transportation Code allows police officers to

9 proceed through a stop sign, after slowing as necessary for safe operation. TEX.

TRANSP. CODE § 546.001(2). Section 545.156 of the Texas Transportation Code

further provides that, on the immediate approach of an emergency vehicle using

audible and visual signals, an operator, unless otherwise directed by a police

officer, shall yield the right-of-way, immediately pull over to the edge of the

roadway clear of any intersection, and stop and remain standing until the

emergency vehicle has passed. TEX. TRANSP. CODE § 545.156.

In this instance, Officer Kunz operated her patrol car in compliance with the

Texas Transportation Code while responding to the emergency call for the

domestic disturbance. Officer Kunz had her warning lights and sirens activated

when responding to the call and slowed down and safely cleared the roadways

before proceeding through the intersection. (CR 30-33, 35-36). Officer Kunz

observed Plaintiff approaching the intersection and found no indication that he

would not yield the right of way. (CR 36). Plaintiff was aware that police officers

are allowed to proceed through stop signs under these circumstances, yet he did not

yield despite the fact that it was apparent Officer Kunz was responding to an

emergency and had her lights and sirens activated. (CR 30-33, 35-36, 38, 41).

Because Officer Kunz's had her lights and sirens activated when responding

to the domestic disturbance call and slowed down before entering the intersection,

she was in compliance with Section 546.001(2) of the Texas Transportation Code,

10 and government immunity is not waived pursuant to Section 101.055(2) of the Act.

Accordingly, the trial court erred in denying the City's Plea to the Jurisdiction

because Officer Kunz's actions while responding to the emergency complied with

Texas traffic laws and, therefore, immunity is not waived pursuant to Section

101.055(2) of the Act.

2. Officer Kunz Did Not Act Recklessly or With Conscious Disregard for the Safety of Others

Texas law requires a showing of recklessness for government immunity to

be waived in claims arising out of an emergency situation or action. Plaintiff failed

to show any evidence Officer Kunz acted recklessly in order to overcome the

immunity exception under Section 101.055(2) of the Act, and the Court erred in

denying the City's Plea to the Jurisdiction because the Court lacks subject-matter

jurisdiction to determine the subject in controversy.

"Reckless" means something more than taking calculated risk or momentary

lapses in judgment. The terms "conscious indifference" and "reckless disregard"

are not defined, and therefore courts give them their ordinary meaning. TEx.

GOv'T CODE ANN. § 312.002; Hartman, 201 S.W.3d at 672 n. 19 (Tex. 2006); City

of Pasadena v. Kuhn, 260 S.W.3d 93, 99 (Tex. App.—Houston [1st Dist.] 2008, no

pet.). The Texas Supreme Court has stated that these terms "require proof that a

party knew the relevant facts but did not care about the result." Kuhn, 260 S.W.3d I, at 99 (quoting Hartman, 201 S.W.3d at 672 n.19).

11 The Texas Supreme Court also established a test to govern the recovery of

damages for claims arising out of a public servant's use of a motor vehicle in an

emergency. Martin, 971 S.W.2d at 430. In Martin, the Texas Supreme Court held

that public servants cannot be liable for mere negligence and requires a showing of

recklessness. Id. at 432. "To recover damages resulting from the emergency

operation of an emergency vehicle, the Plaintiff must show that the operator has

committed an act that the operator knew or should have known, posed a hire

degree of risk of serious injury." Id at 430. In creating a reckless standard, one of

the Court's concerns was to serve the "public's interest minimizing emergency

response and delays." Id. at 433.

This is consistent with this State's policy in emergency cases to balance the

rights of by-standers or other innocent parties against the injustice of subjecting to

liability emergency vehicle operators (who are required to exercise discretion in

their jobs) and the dangers of threat of such liability would deter their willingness

to execute their duties with the decisiveness and judgment required by the public

good. Id at 431. It is important to allow those in the police officer's position to

exercise the duties of their respective officers without fear of liability as they are

"charged with protecting the public's health, safety and property, and a few

minutes and even seconds could make the difference between life and death." Id.

12 The essence of "recklessness" is in showing more than a mere "momentary

judgment lapse." Martin, 971 S.W.2d at 430. This standard allows emergency

vehicle operators to take "calculated risks" in order to save life or property. Id.

Officials are not required to eliminate all risk, or proceed only when there is no

possibility that injury will occur. An officer does not act recklessly and, therefore,

is not liable, if he proceeds in an intersection against a red light or a stop sign even

though some risk of harm exists. See Kuhn, 260 S.W.3d at 100 (holding evidence

that there was a blind intersection, that plaintiff's vehicle sustained a great deal of

damage and conclusory statements that officer was driving at a high rate of speed

was insufficient to raise fact issue as to "reckless disregard"); City of San Angelo

Fire Dep't v. Hudson, 179 S.W.3d 695, 701-02 (Tex. App.—Austin 2005, no pet.)

(holding no evidence of reckless disregard for safety of others where officer

entered intersection without stopping and witness did not hear brakes being

applied); Smith v. Janda, 126 S.W.3d 543 (Tex. App.—San Antonio 2003, no pet.)

(holding that evidence was insufficient to establish recklessness when ambulance

driven to emergency with lights and sirens and slowed down without coming to a

complete stop at an intersection).

In the present case, Plaintiff can only show that Officer Kunz took a

calculated risk in driving through the intersection under the circumstances

perceived by her. In order to prove recklessness it requires proof "that a party

13 knew the relevant facts but did not care about the result." Hartman, 201 S.W.3d at

672 n.19. Furthermore, to avoid a dismissal a plaintiff must actually adduce

evidence of recklessness and cannot rely on pleadings and allegations alone. Id. at

671-72.

a. Texas Department of Public Safety v. Sparks In a similar emergency collision case, the Corpus Christi Court of Appeals

reversed a trial court's denial of the Texas Department of Public Safety's ("DPS")

plea to the jurisdiction and motion for summary judgment, holding that the DPS

retained government immunity from suit based upon the emergency exception

contained in Section 101.055(2) of the Act. Tex. Dep't of Pub. Safety v. Sparks,

347 S.W.3d 834 (Tex. App.—Corpus Christi 2011).

In that case, several DPS units were pursuing a speeding motorcycle in

Victoria, Texas. Id. at 836. During the pursuit, one DPS patrol car attempted to

prevent the motorcycle from turning towards a school zone and entered an

intersection against a red light and collided with another vehicle. Id. The DPS

moved for summary judgment seeking to establish that the DPS officer was not

reckless as a matter of law and that no subject matter jurisdiction existed because

the city was immune from suit under the emergency exception contained in Section

101.055(2) of the Act. Id.

14 In response, the plaintiff attempted to raise a fact issue with testimony from

the plaintiff's accident reconstruction expert and two other DPS officers, arguing

that the officer acted recklessly by not stopping at the red light and/or not properly

clearing the roadway before entering the intersection. Id. at 839-40. Specifically,

the plaintiff argued that the officer violated Section 546.001 of the Texas

Transportation Code, and that the officer should not have entered the intersection

until it was apparent that all drivers had yielded the right of way. Id.

According to deposition testimony from the plaintiff's expert, plaintiff's

expert reviewed the patrol car video and concluded that the officer exhibited

reckless disregard and conscious indifference to public safety by entering the

intersection against the red light. Id. at 843. The expert conceded that the officer

slowed down before entering the intersection and noted that the officer was not

required to stop for the red light. Id. The expert further testified that the officer

cleared the left lane as he was slowing down to approach the intersection, but did

not clear the left lane again before entering the intersection. Id.

The plaintiff also relied on the deposition testimony and report of the

officer's supervisor to raise a fact issue as to whether the officer acted recklessly.

According to the supervisor's report, the supervisor acknowledged that the officer

slowed down before entering the intersection, but believed that the officer failed to

exercise due caution by disregarding the red light and should have waited until he

15 was certain that other drivers had yielded the right of way before entering the

intersection. Id. at 842. The supervisor testified that he did not believe the officer

needed counseling about the incident, but was instructed by his supervisors to

counsel the officer. Id. at 843.

The plaintiff also relied on the report and deposition testimony of another

DPS officer charged with investigating the incident. According to the

investigating officer's incident report, the investigating officer found that the

officer had violated Section 546.001 of the Texas Transportation Code by failing to

properly clear the other roadways before proceeding through the intersection. Id.

When asked about the basis for this assertion during his deposition, the

investigating officer responded that his opinion that the officer violated Section

546.001 was based solely on the fact that a collision had occurred. Id. 840. After

reviewing this evidence, the trial court denied the DPS' motion for summary

judgment and plea to the jurisdiction. Id. at 836.

Upon review, the appellate court found the expert's conclusory opinion that

entering the intersection against the red light constituted reckless disregard and

conscious indifference, without any further support or explanation, was no

evidence as to whether the officer acted recklessly to raise a genuine issue of

material fact. Id. The court also found that the expert's testimony did not offer

any evidence demonstrating when or how far away the officer was when he first

16 cleared the left lane and/or how this made it unable for the officer to determine

whether he could proceed through the intersection. Id. The court specifically

noted that the patrol car video did not have footage of the officer while he was

driving and, therefore, could not independently confirm whether or when the

officer cleared the left lane. Id. at 843 n.10. Based upon these reasons, the

appellate court found the expert's testimony failed to raise a genuine issue of

material fact as to whether the officer acted recklessly for subject matter

jurisdiction to exist. Id. at 843-44.

Regarding the testimony and report from the officer's supervisor, the

appellate court found the supervisor's assertions that the officer failed to exercise

due caution by disregarding the red light was merely conclusory and no evidence

of the officer's recklessness. Id. Relying on similar opinions from other Texas

appellate courts, the court further found the evidence about the officer's

counseling/reprimand and the supervisor's allegations that the officer failed to

exercise due caution may have demonstrated that the officer was negligent, but did

not demonstrate that the officer acted recklessly to raise a fact issue. Id. at 842-43;

See also City of Arlington v. Barnes, No. 02-07-249-CV, 2008 Tex. App. LEXIS

2236, at **12-14 (Tex. App.—Fort Worth Mar. 27, 2008, pet. denied) (holding

written reprimand stating that officer failed to exercise due care and failed to

17 comply with transportation code did not raise fact issue on reckless disregard);

Hudson, 179 S.W.3d at 702.

The appellate court found the investigating officer's report and testimony

were conclusory and that the mere fact that a collision had occurred with an

emergency vehicle did not necessitate that the driver had been reckless and/or that

Section 546.001(2) had been violated. Id. at 842. Again, the appellate court noted

that even if the evidence presented demonstrated negligence, this would not raise a

genuine issue of material fact as to whether the officer acted recklessly. Id. at 843,

n. 11.

The appellate court found that the undisputed evidence showed the officer

was responding to an emergency, had his lights and sirens activated, approached a

red light intersection, slowed down and cleared the roadways before proceeding

through the intersection. Id. at 841. On this basis, the appellate court found that

the officer was not reckless as matter of law under Section 101.055 of the Act, and

reversed the denial of the DPS' Plea to the Jurisdiction and rendered judgment

dismissing the plaintiff's claims. Id. at 844; See also City of Laredo v. Varela,

2011 Tex. App. LEXIS 3485 (Tex. App.—San Antonio, 2011, pet. denied)

(reversing district court and finding no fact issue on reckless disregard even where

department review board found the accident to be preventable. Actions of officer

in using emergency lights, siren and brakes negated reckless disregard).

18 b. City of Pasadena v. Kuhn In an almost identical emergency case, a plaintiff collided with a police

officer at an intersection while the officer was responding to an emergency call for

a house fire. Kuhn, 260 S.W.3d at 99-100. The officer's emergency lights and

siren were activated in response to the emergency. Id. The officer approached a

red light intersection and slowed down to clear the adjacent roadways before

proceeding through the intersection. Id. The plaintiff failed to yield the right of

way and collided with the patrol car in the intersection. Id.

The City filed a plea to the jurisdiction pursuant to Section 101.055(2) of the

Texas Tort Claims Act, arguing that it maintained its immunity from suit because

the plaintiff did not plead or prove the officer's actions were reckless or violated

Section 546.001 of the Texas Transportation Code. Id. at 97. In response, the

plaintiff submitted photographs of a "blind spot" on the corner of the intersection

and argued that the intersection was dangerous and that an officer responding to an

emergency call would know or should have known that entering the intersection on

a red light with this blind spot would create a high degree of risk of injury. Id. 97-

98. There was a factual dispute over whether the officer slowed down or stopped

before entering the intersection, but it was undisputed that the officer was driving

faster than the speed limit. Id. at 98. The plaintiff argued that the evidence of the

dangerous configuration of the intersection and the undisputed fact that the officer

19 was speeding was sufficient to show that the officer was driving recklessly. Id.

The trial court denied the city's plea to the jurisdiction on this basis. Id. at 95.

On appeal, the appellate court applying the "reckless disregard" test

established by the Texas Supreme Court in City of Amarillo v. Martin, reversed the

trial court's order and rendered judgment for the city. Id. at 101. The appellate

court held that the undisputed evidence that the officer was responding to an

emergency, had his lights and sirens activated, and slowed down and cleared the

roadways before proceeding through the intersection was insufficient to show

reckless conduct or that the officer lacked regard for the safety of others as a matter

of law. Id. The court further noted that it did not matter whether the officer had

stopped or slowed down at the intersection, because the officer was only required

to slow down as necessary for safe operation under Section 546.001(2) of the

Texas Transportation Code. Id. at 100.

c. Smith v. Janda Finally, in another similar emergency case, the San Antonio Court of

Appeals reversed a trial court's denial of a city's motion for summary judgment

because the city was immune from suit pursuant to Section 101.055(2) of the Act.

Janda, 126 S.W.3d at 543. The court further held that a driver who operated an

ambulance in conformity with the provisions of the Texas Transportation Code did

not act recklessly as a matter of law. Id. In that case, an ambulance driver was

20 driving an ambulance in an emergency situation with the lights and sirens

activated. Id. at 546. As he approached an intersection, he slowed down and

looked around. Id. He perceived that traffic had stopped or was yielding to him

and proceeded into the intersection without coming to a complete stop. Id.

Moving for summary judgment, the city sought to establish that the driver

was not reckless as a matter of law and that no subject matter jurisdiction existed

because the city was immune from suit. Id. at 545-56. In response, the plaintiff

argued that there was a fact dispute about whether or not the ambulance driver ran

the red light and whether or not the plaintiff had the right of way. Id. After

reviewing the evidence, the appellate court found that the driver was in an

emergency situation with his lights and sirens activated, other drivers at the

intersection could hear and see the lights and sirens, the driver slowed down at the

intersection and cleared the other roadways, and proceeded through the intersection

without coming to a complete stop. Id.

Applying the Texas Supreme Court's "reckless disregard" test, the appellate

court found that the ambulance driver was not reckless as matter of law under

Section 101.055(2) of the Act, because he was responding to an emergency,

activated his ambulance's lights and siren, slowed when approaching intersection

and observed drivers yielding to ambulance. Id. Further, the San Antonio Court of

Appeals also noted that the Texas Transportation Code entitles emergency vehicle

21 operators to presume that other motorists will "respect emergency vehicle

priorities" and heed to audible or visual emergency signals. Id. at 546 (citing

Martin, 971 S.W.2d at 431) (also citing TEX. TRANSP. CODE ANN. § 546.001(2)).

Like the officers in Kuhn, Sparks, and Varela, and the ambulance driver in

Smith, the conduct of Officer Kunz has not and cannot be shown to be reckless as a

matter of law in that she was responding to an emergency incident, had her

emergency lights and siren on, and clearly slowed down as she proceeded into the

intersection in question. (CR 30-33, 35-36). As stated by the Texas Supreme

Court, "civilian drivers generally have an advantage in anticipating and preventing

a collision" due to the fact that emergency vehicles "stand out" from other

vehicles. Martin, 971 S.W.2d at 432. Even though a fact question may exist as to

whether Officer Kunz was negligent on the occasion, this is not enough to

demonstrate that she acted recklessly or with conscious disregard for the safety of

others for immunity to be waived in this instance. Kuhn, 260 S.W.3d at 100;

Hudson, 179 S.W.3d at 701-02 (holding no evidence of reckless disregard for

safety of others when officer entered intersection without stopping and witness did

not hear brakes being applied); Janda, 126 S.W.3d at 545-46.

d. No Evidence of Recklessness As discussed, the City conclusively showed that Officer Kunz was not

reckless as a matter of law because (1) she was responding to an emergency, (2)

22 had her emergency lights and siren activated, and (3) slowed down and cleared the

roadway as necessary to proceed safely through the neighborhood intersection.

The court erred in denying the City's Plea to the Jurisdiction because Plaintiff's

expert opinion is no evidence that Officer Kunz acted recklessly and does not raise

a genuine issue of material fact in order for government immunity to be waived.

Like the accident reconstruction expert opinion in Sparks, Chief Kowalski's

expert report and opinion amount to nothing more than surmise and speculation

and are not evidence that Officer Kunz acted recklessly. Specifically, Chief

Kowalski continuously uses the term "reckless" when forming his opinions, but

fails to define reckless or apply the reckless standard established by the Texas

Supreme Court in City of Amarillo v. Martin. (CR 67-70). In addition, like

Sparks, Chief Kowalski's allegations may demonstrate that Officer Kunz was

negligent on the occasion, but is not evidence of recklessness. See Sparks, 347

S.W.3d at 843, n. 11. For example, Chief Kowalski states that because Officer

Kunz was a few blocks behind Officer O'Bryant, a question of the criticality of

Officer Kunz's driving tactics is raised. (CR 67). Such argument lacks merit, as

the distance between Officer Kunz and Officer O'Bryant has no relevance to

Officer Kunz's driving tactics. Chief Kowalski also opines that safety protocol

allows the first officer to arrive at a scene to await the arrival of a second officer

and thus Officer Kunz had no reason to be operating her vehicle in a reckless

23 manner. (CR 67). Whether or not Officer O'Bryant had the ability to wait for the

arrival of Officer Kunz to the dispatch call location is irrelevant as to whether

Officer Kunz's actions in driving to the scene were reckless. In addition, Chief

Kowalski misconstrues Texas law by claiming that Plaintiff had the right-of-way

because there was no traffic control device at the intersection governing the

direction Plaintiff was traveling. (CR 68). Texas law is unequivocally clear that a

peace officer has the right-of-way at an intersection when operating under

emergency circumstances. Martin, 971 S.W.2d at 432; TEX. TRANSP. CODE §§

545.156 and 546.001 et seq. Whether or not Officer Kunz was negligent is

immaterial because a reckless finding is necessary before Plaintiff can recover in

this emergency response case and Chief Kowalski's report and testimony offers no

evidence as to "recklessness."

Moreover, as in Sparks, Chief Kowalski's conclusory opinion that Officer

Kunz was reckless because she did not come to a complete stop at the intersection

is no evidence that Officer Kunz acted recklessly or violated Section 546.001(2) of

the Texas Transportation Code, which specifically allows an officer to "proceed

past a red light after slowing as necessary for safe operation." (CR 68, 70); See

Kuhn, 260 S.W.3d at 100; Hudson, 179 S.W.3d at 701-02 (holding no evidence of

reckless disregard for safety of others where officer entered intersection without

stopping and witness did not hear brakes being applied); Janda, 126 S.W.3d at 543

24 (holding that evidence was insufficient to establish recklessness when ambulance

driven to emergency with lights and sirens and slowed down without coming to a

complete stop at an intersection);

Furthermore, Chief Kowalski claim that Officer Kunz was traveling at a

reckless speed prior to the incident because the "patrol car is seen bouncing into

the air as it travels over a hump at a reckless speed," is pure speculation and not

supported by any evidence of Officer Kunz's speed prior to the intersection. (CR

70). As in Sparks, the patrol car video does not contain footage or images of the

speedometer in order to independently confirm Chief Kowalski's unsupported

claims that Officer Kunz "failed to alter her speed in any meaningful way." (CR

70); compare Sparks, 347 S. W.3d at 843; Kuhn, 260 S.W.3d at 101. As in Sparks

and Kuhn, Chief Kowalski's unsupported claims regarding Officer Kunz's speed

before and/or during the incident is no evidence that Officer Kunz acted recklessly.

Kunz, 260 S.W.3d at 100 (conclusory statements that officer was driving at a high

rate of speed was insufficient to raise fact issue as to "reckless disregard.").

Finally, Chief Kowalski's reliance on witness testimony and reports citing

Officer Kunz for not stopping at the stop sign and referencing Officer Kunz's

verbal counseling/reprimand after the incident is also no evidence that Officer

Kunz acted recklessly. (CR 69-70); See Hudson, 179 S.W.3d at 702; Barnes, 2008

Tex. App. LEXIS 2236, at *11-15 (holding written reprimand stating that officer

25 failed to exercise due care and failed to comply with transportation code did not

raise fact issue on reckless disregard); See also Varela, 2011 Tex. App. LEXIS

3485, at*12-14 (reversing district court and finding no fact issue on reckless

disregard even where department review board found the accident to be

preventable because actions of officer in using emergency lights, siren and brakes

negated reckless disregard).

Accordingly, the City is entitled to immunity because it has conclusively

shown that Officer Kunz was not reckless as a matter of law because she was (1)

responding to an emergency, (2) had her emergency lights and sirens activated, (3)

slowed down as necessary in entering the intersection in conformity with Section

546.001(2) of the Texas Transportation Code. Moreover, Plaintiff failed to raise a

genuine issue of material fact that Officer Kunz acted recklessly, because Chief

Kowalski's conclusory report is no evidence that Officer Kunz's actions were

reckless or made without regard to public safety in violation of Section 101.055(2).

Therefore, the City is immune from suit and the trial court erred in denying the

City's Plea to the Jurisdiction because the court is without subject matter

V. ISSUE NO. 2: THE CITY IS ENTITLED TO OFFICIAL IMMUNITY BECAUSE OFFICER KUNZ ACTED IN GOOD FAITH AND A REASONABLY PRUDENT POLICE OFFICER, UNDER THE CIRCUMSTANCES, WOULD HAVE REACHED THE SAME DECISION.

26 The Court erred in denying the City's Traditional Motion for Summary

Judgment because Officer Kunz is entitled to official immunity for her

discretionary acts performed in good faith within the scope of her authority, and

City is entitled to summary judgment because the official immunity of Officer

Kunz precludes vicarious liability under Plaintiff's theory of respondeat superior.

A. Officer Kunz is Entitled to Official Immunity and the City is Entitled to Sovereign Immunity

The court erred in denying the City's Traditional Motion for Summary

Judgment because Officer Kunz is entitled to official immunity for discretionary

acts performed in good faith within the scope of her authority as a police officer

and Officer Kunz's official immunity precludes the City from vicarious liability

under Plaintiff's theory of respondeat superior.

Official immunity is an affirmative defense that protects governmental

employees from personal liability. Chambers, 883 S.W.2d at 653. A

governmental employee is entitled to official immunity (1) for the performance of

a discretionary duty; (2) within the scope of the employee's authority, (3) provided

that the employee acts in good faith. Id. at 653. When official immunity shields a

governmental employee from liability, sovereign immunity shields the

governmental employer from vicarious liability as well. DeWitt, 904 S.W.2d at

653.

27 1. Officer Kunz Performed Discretionary Duties within Her Scope of Authority

Public officials and employees are not liable for discretionary acts

performed in good faith within the scope of their authority. Torres v. Owens, 380

S.W.2d 30, 34-36 (Tex. Civ. App.—Corpus Christi 1964, writ refused n.r.e.). An

act is discretionary if it requires personal deliberation, decision and judgment.

Chambers, 883 S.W.2d at 654. In this instance, Officer Kunz was on duty acting

within her authority as a police officer in responding to the domestic disturbance

call involving a deadly weapon. Officer Kunz exercised her discretion and

personal judgment in deciding how to get to the disturbance as quickly and safely

as possible as police officers, firefighters, and ambulance drivers are entrusted to

do.

2. Officer Kunz Acted in Good Faith

Public officials and employees are entitled to official immunity for their

discretionary actions, even if they misinterpret the law, as long as their actions

were taken in good faith. Owens, 380 S.W.2d at 34-36. Good faith is measured by

how a reasonably prudent officer could have assessed both the "need" to which an

officer responds, and the "risk" of the officer's course of action based on the

officer's perception of the facts at the time of the event. Chambers, 883 S.W.2d at

656. In Chambers, the Texas Supreme Court recognized the competing interests

involved in good faith cases and created a "good faith" test that focuses on both the

28 injustice of imposing liability on police officers whose job requires them to

exercise discretion, and the danger that such liability will deter their willingness to

exercise their discretion for the public good. Id. at 665. These concerns are also

balanced against the need for public safety. Id.

In the context of emergency response cases, the Texas Supreme Court

elaborated on the Chamber 's good faith test providing guidance on both the "need"

and "risk" aspects of the test:

"The "need" aspect of the test refers to the urgency of the circumstances requiring police intervention. In the context of an emergency response, need is determined by factors such as the seriousness of the crime or accident to which the officer responds, whether the officer's immediate presence is necessary to prevent injury or loss of life or to apprehend a suspect, and what alternative courses of action, if any, are available to achieve a comparable result.

The "risk" aspect of good faith, on the other hand, refers to the countervailing public safety concerns: the nature and severity of harm the officer's actions could cause (including injuries to bystanders as well as the possibility that an accident would prevent the officer from reaching the scene of the emergency), the likelihood any harm would occur, and whether any risk of harm would be clear to a reasonably prudent officer."

Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997).

Typically, Texas courts have granted summary judgment and pleas to the

jurisdiction in favor of governmental entities once an officer's good faith is

established — when a reasonably prudent officer, under same or similar

circumstances, could have believed that the need to respond to the emergency

29 outweighed a clear risk of harm to the public, and have held that good faith may be

established by the officer's own affidavit or testimony. See Mem? Villages Police

Dep't v. Gustafson, 2011 Tex. App. LEXIS 6595 (Tex. App.—Houston [1st Dist.]

2011, no pet.) (plea to the jurisdiction granted because the officer's affidavit

showed he considered alternative courses of action and the facts demonstrated a

need to immediately apprehend the driver); City of Dallas v. Garcia, 1998 Tex.

App. LEXIS 1785 (Tex. App.—Dallas 1998, no pet.); State v. McGeorge, 925

S.W.2d 105 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (summary

judgment granted where the State established good faith and demonstrated a

reasonably prudent officer might have believed to continue the pursuit); Barker v.

City of Galveston, 907 S.W.2d 879, 888 (Tex. App.—Houston [1st Dist.] 1995, writ

denied).

3. City of San Angelo Fire Department v. Hudson

In Hudson, a city fire truck was dispatched in response to a fire at a daycare

center. Hudson, 179 S.W.3d at 697. The fire truck had its emergency lights and

sirens activated and was a few blocks away from the daycare center when the

driver came to a red light intersection. Id. The driver slowed down as he

approached the intersection and observed the traffic stopped in all directions. Id.

The driver believed the traffic was yielding for the fire truck and entered the

intersection against a red light. Id. The plaintiff had a green light and collided

30 with the fire truck in the intersection. Id. The plaintiffs claimed she did not hear

the sirens or see the emergency lights when she entered the intersection. Id. at 701.

The plaintiff filed suit against the city and the city moved for summary

judgment asserting that the plaintiffs claims were barred by official immunity

because the driver was acting in good faith in the performance of his discretionary

duties as a city employee. Id. at 698. In support of summary judgment, the city

submitted an affidavit from the fire truck driver discussing the risks he considered

when entering the intersection against the light and his perceived need to respond

quickly to the emergency. Id. at 705-06. The driver was aware that traffic was

congested and that the traffic light stayed red as he approached the intersection. Id.

The driver considered the fact that a collision could occur if someone did not hear

the sirens and air horn, or see the emergency lights. Id. The driver also considered

the fact that a collision might prevent him from timely reaching the scene to offer

aid. Id. The driver weighed these risks against the perceived need to respond to

the emergency as quickly as possible because he was the closest unit to the daycare

center. Id.

In her response to the city's motion, the plaintiff argued that the driver was

not performing a discretionary function in responding to the call because he did not

choose whether or not to respond to the call. Id. at 704. The plaintiff also argued

that the need and risk involved did not meet the Chamber's good faith test because

31 other fire trucks had already arrived at the daycare center and there was no need for

the driver to enter the intersection against the red light. Id. at 705. The trial court

questioned whether the driver's affidavit conclusively met the good faith test and

whether the driver was performing a discretionary act and denied the city's motion

for summary judgment. Id. at 699.

After reviewing the evidence submitted by the parties on summary

judgment, the Austin Court of Appeals reversed the trial court's order denying the

city's motion and rendered judgment in favor of the city. Id. at 707. The court

found the driver's affidavit conclusively demonstrated that he considered the risks,

looked for traffic that might pose a danger, and weighed the risks and need before

proceeding through the light, and that a reasonable fire truck driver could have

believed the need to reach the scene of the emergency was compelling under the

circumstances. Id. at 705.

4. Affidavit and Testimony of Officer Kunz a. Imminent Need In the present case, the "need" to respond to the domestic disturbance call as

quickly as possible is obvious in that Officer Kunz and Officer O'Bryant were

responding to an ongoing fight between two individuals involving deadly weapons

in a household with children. (CR 35). According to Officer Kunz's Affidavit,

Officer Kunz also believed it was a priority for her to respond to the scene as

32 quickly as possible in order to safely support her fellow officer due to the

dangerous nature of the call and the fact that weapons were involved. (CR 35-36).

Clearly, a reasonable police officer could have believed that their was an imminent

need to respond to the scene as quickly as possible to prevent further deadly

violence and assist a fellow officer secure the scene safely.

b. Immediate Danger Outweighed Risk In addition, the "risk" factors weigh in Officer Kunz's favor and her

deposition testimony and affidavit demonstrate that she considered and weighed

the risks against the perceived need. According to Officer Kunz's Affidavit,

Officer Kunz and Officer O'Bryant responded to the call from separate locations

and Officer Kunz was forced to navigate through several city streets before she

was able to pull behind Officer O'Bryant. (CR 35). Both Officer Kunz and

Officer O'Bryant's emergency lights and sirens were activated while they

proceeded through the residential neighborhood towards the scene of the

disturbance. (CR 35). Officer Kunz was several seconds behind Officer O'Bryant

as they approached a one way stop sign. (CR 35-36). Officer Kunz slowed down

three or four car lengths before the stop sign and checked for traffic as Officer

O'Bryant proceeded through the intersection ahead of her. (CR 35-36; Ex. "B,"

pg. 2).

33 Officer Kunz recognized the possibility that if she proceeded through the

stop sign, such action could increase the risk of a collision. (CR 35-36). However,

she also considered that her patrol car's emergency lights and sirens were

activated, she was traveling in a residential neighborhood with little or no traffic,

slowed down before the intersection, and was not traveling at a high rate of speed.

(CR 31-32, 35-36). In addition, she considered the fact that Officer O'Bryant had

traveled through the same intersection only seconds before and believed other

vehicles in the vicinity would have been alerted by Officer O'Bryant's emergency

lights and sirens in addition to her own. (CR 35-36, 41).

Officer Kunz was also entitled to rely on the fact that civilian vehicles have

a duty to yield the right-of-way (irrespective of the current traffic signals) when

she is responding to an immediate emergency with her emergency lights and sirens

activated. (CR 35-36); TEX. TRANSP. CODE § 545.156; See also Janda, 126 S.W.3d

at 546 (transportation code entitles emergency vehicle operators to presume that

other motorists will "respect emergency vehicle priorities").

Taking all of these factors into account, the potential danger posed by

Officer Kunz traveling through the intersection in a residential neighborhood with

little or no traffic was far less than the immediate threat of injury or loss of life

posed by the multiple combatants fighting with weapons in a house with children.

Under the circumstances, a reasonably prudent police officer, under similar

34 circumstances, would have reached the same decision based upon her perception of

the facts at the time. Therefore, Officer Kunz acted in good faith and is entitled to

official immunity as a matter of law. As a result, official immunity bars the

Plaintiff's vicarious liability claims against the City and Plaintiff's claims should

be dismissed with prejudice.

5. Green v. Alford Is Distinguishable From the Present Case

Plaintiff cites to Green v. Alford in his Response to support the position that

Officer Kunz was reckless and acted in bad faith. (CR 54-55). The Green case is

readily distinguishable from the present case because the fire fighters in that case

were responding to an automatic fire alarm which posed no immediate threat of

injury or loss of life and the fire truck driver suffered from a debilitating eye

disease and driving without glasses or corrective lenses. Green v. Alford, 274

S.W.3d 5, 18 (Tex. App.—Houston [14th Dist.] 2008, pet denied).

In Green, the court noted that the fire fighters were responding to an

electronic fire alarm, which the court admitted the overwhelming majority of

which are false alarms and do not require immediate assistance. Id. In

determining bad faith, the court focused primarily on the fact that the driver

suffered from a progressive and debilitating eye disease (not disclosed to his

supervisors), and failed to wear corrective lenses as required by his driver's

license. Id. Other evidence showed that other fire fighters were available to drive;

35 the driver knew that traffic would be heavy at the intersection due to it being

evening rush hour on the Friday before labor day weekend; the driver was

operating a fire truck that weighed 39,500 pounds; and there was a genuine issue of

material fact as to whether the driver was using the fire truck's siren or other

audible warning signal at the time of the collision. Id. at 18-19, 28.

Unlike the firefighter in Green who was responding to an automatic fire

alarm, which did not require the immediate presence of a firefighter, Officer Kunz

was responding to a domestic disturbance with multiple combatants reportedly

involving deadly weapons with a high potential for serious injury or loss of life.

(CR 35). Additionally, Officer Kunz did not have an eye disease or fail to wear

corrective lenses impairing her judgment. Also, Officer Kunz was responding to

the dispatch call location on a sparsely traversed residential street on a Sunday

night at approximately 8:30 p.m., as compared the heavily trafficked intersection at

rush hour in Green. Likewise, Officer O'Bryant proceeded through the

intersection in question a few moments prior to Officer Kunz and should have

alerted vehicles in the vicinity to emergency vehicles in the area. (CR 35-36).

Finally, and perhaps most importantly, unlike the fire fighter in Green, it is

undisputed that Officer Kunz was operating her vehicle's emergency siren at the

time of the accident. Due to the drastic difference in circumstances between Green

36 and the matter in question, Green is inapposite and distinguishable from the facts

in this case.

6. Plaintiff's Expert's Opinion Fails to Offer Any Reliable Evidence of Bad Faith

Like Plaintiff's failure to sufficiently support a reckless finding against

Officer Kunz, Plaintiff equally fails to demonstrate that Officer Kunz acted in bad

faith. Good faith is measured by how a reasonably prudent officer could have

assessed both the need to which an officer responds and the risk of the officer's

course of action based on the officer's perception of the facts at the time of the

event. Chambers, 883 S.W.2d at 656. In Chambers, the Texas Supreme Court

held an officer does not have to prove that the officer's actions were unreasonable

or that all reasonably prudent officers would have proceeded in the same way. Id.

Instead, the officer must prove only that a reasonably prudent officer might have

believed he or she should have continued in their course of action. Id. at 656-57.

According to Plaintiff and Kowalski, Officer Kunz acted in bad faith

because she allegedly should have known that her arrival time at the dispatch call

location between a "safe speed" and a "reckless speed" would have been

substantially the same. (CR 67, 70). This argument fails for a number of reasons.

First and foremost, Kowalski fails to accurately apply the "need" versus "risk" test

adopted by the Texas Supreme Court in Chambers when opining whether Officer

Kunz acted in good faith. Id. at 653. When properly applying the "need" versus

37 "risk" test to Officer Kunz's actions, it is clear that there was a significant need for

Officer Kunz to reach the dispatch call location as soon as possible given the

presence of multiple combatants with weapons in a house with children and the

high potential for serious injury or loss of life. (CR 35-36). This need outweighed

the potential risk posed by Officer Kunz traveling through a stop sign in a

residential neighborhood at night with little or no traffic.

Second, because of the potential presence of deadly weapons, the difference

between reaching the dispatch call location as quickly as possible as opposed to a

few moments later could have been the difference between life or death. As a

result, there was a compelling reason for Officer Kunz to reach the dispatch call

location as quickly as possible.

Third, from his review of the patrol car dash camera video, Chief Kowalski

speculates that Officer Kunz was traveling at a reckless and high rate of speed

before the intersection because the "patrol car is seen bouncing into the air as it

travels over a hump at a reckless speed." (CR 70). Based upon this opinion, Chief

Kowalski concludes that Officer Kunz's arrival time would have been substantially

the same at a "safe speed" versus a "reckless speed." (CR 67). Chief Kowalski's

opinion is not based upon any evidence beyond his own speculation and fails to

identify what a safe speed would have been under the circumstances as compared

to a reckless speed. Moreover, Officer Kunz's speed at the time of the incident

38 cannot be independently confirmed because the speedometer is not shown in the

dash camera video. Compare Sparks, 347 S.W.3d at 843, n.10. Given Plaintiff has

failed to offer evidence that no reasonably prudent officer in Officer Kunz's

position could have thought that the facts justified her conduct, Officer Kunz is

entitled to official immunity. See Clark, 38 S.W.3d at 581.

C. Public Policy Underlying Official Immunity

Furthermore, there are significant public policy concerns underlying police

officer's official immunity in police emergency response cases, as recognized by

the Texas Supreme Court. "[T]he public would suffer if government officers, who

must exercise judgment and discretion in their jobs, were subject to civil lawsuits

that second-guessed their decisions." Telthorster v. Tennell, 92 S.W.3d 457, 463

(Tex. 2002). Thus, official immunity is designed to protect public officials from

being forced to defend their decisions that were reasonable when made, but upon

which hindsight has cast a negative light. Id. Further, police officers' particular

need for immunity's protection is well-recognized: "nowhere else in public service

is official immunity more appropriate or necessary than in police work. In their

routine work, police officers must be free to make split-second judgments . . .

based on their experience and training, without fear of personal liability." Id.

(citing Travis v. City of Mesquite, 830 S.W.2d 94, 103 (Tex. 1992) (Cornyn, J.,

concurring)). If police officers were subject to liability for every mistake, the

39 constant threat of suit could "dampen the ardor of all but the most resolute, or the

most irresponsible officers." Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982).

These public-policy concerns in large part underlie the good faith test articulated

by the Texas Supreme Court in Chambers.

Accordingly, the court erred in denying the City's Traditional Motion for

Summary Judgment because Officer Kunz's discretionary actions, weighing the

needs and risks associated with responding to the domestic disturbance call, were

performed in good faith within the scope of her authority as a police officer and,

therefore, Officer Kunz is entitled to official immunity which precludes the City

from vicarious liability under Plaintiff's theory of respondeat superior.

CONCLUSION

The trial court erred in denying the City's Plea to the Jurisdiction and

Traditional Motion for Summary Judgment because the Plaintiff failed to raise a

genuine issue of material fact that Officer Kunz acted recklessly or acted in bad

faith. The City is immune to suit and the court is without subject matter

PRAYER

For these reasons, Appellant Bay City, Texas respectfully prays that this

Court reverse the trial court's March 6, 2015 Order Denying the City's Plea to the

Jurisdiction and render a take-nothing judgment against Plaintiff/Appellee Wade

40 McFarland. Appellant prays for any further relief, in law or equity, to which it

may show itself to be justly entitled.

Respectfully submitted,

GORDON & REES, LLP

By: /s/ Steven D. Selbe STEVEN D. SELBE State Bar No. 18004600 sselbe@gordonrees.com ANDREW J. PRATKA State Bar No. 24079159 apratka@gordonrees.com 1900 West Loop South, Suite 1000 Houston, Texas 77027 Telephone: (713) 961-3366 Facsimile: (713) 961-3938

ATTORNEYS FOR BAY CITY, TEXAS

CERTIFICATE OF COMPLIANCE UNDER TEX. R. APP. P. 9.4(I)(3)

This brief complies with the word limitation of TEx. R. APP. P. 9.4(i)(2)(B) because it contains 9,510 words.

Is! Steven D. Selbe Steven D. Selbe

41 CERTIFICATE OF SERVICE

This is to certify that on this 11th day of May, 2015, a true and correct copy of the foregoing was served on the counsel and parties identified below in accordance with the Texas Rules of Civil Procedure:

David Ramagosa Farrar & Ball, LLP 1010 Lamar, Suite 1600 Houston, Texas 77002

Attorney for Plaintiff Wade McFarland

/s/ Steven D. Selbe STEVEN D. SELBE