City of Amarillo v. Martin

912 S.W.2d 349, 1996 Tex. App. LEXIS 18, 1995 WL 695198

• Court: Court of Appeals of Texas
• Decided: January 4, 1996
• Docket: 07-95-0033-CV
• Status: Published

Opinions

DODSON, Justice.

The City of Amarillo (the City), appeals from a judgment rendered in favor of Erica Shae Martin after a bench trial. The trial court found the City liable for damages sustained by Martin as the result of a collision between Martin’s vehicle and a fire truck operated by the City during an emergency. We affirm.

The record shows that on January 25, 1992, Amarillo firemen were called to an emergency. While responding to the emergency, they entered an intersection, but had to reduce speed to allow a car blocking the pathway to move. Martin was also entering the intersection, and the two vehicles collided. Martin subsequently filed suit against the City under the Texas Tort Claims Act (TTCA), seeking recovery for her property damages and personal injuries, and the City denied liability and counterclaimed for damages to the fire truck. The trial court rendered judgment for $2,000 in favor of Martin, and the City appeals.

By two points of error, the City claims there is no evidence to support Conclusions of Law four and five: that the “[defendant’s agent failed to enter the intersection with safety and such failure was the proximate cause of the collision and Plaintiffs damages,” and that the defendant was liable for negligence under V.A.T.S. Article 6701d, section 75(b). In essence the City claims that the trial court’s determination, in Conclusion of Law three, that the City’s vehicle operator “was not acting in reckless disregard for the safety of others,” was tantamount to a finding of no actionable negligence under the TTCA, and precluded any later finding of liability against the City. We disagree.

In general, a municipality is not liable for the acts of its employees unless immunity is waived by the TTCA. City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex.1993); see generally Tex.Civ.Prac. & Rem.Code Ann. §§ 101.001-.063 (Vernon 1986 & Supp.1995). With respect to such a waiver, section 101.021 of the TTCA provides that a governmental unit is hable for:

(1) property damage, personal injury ... proximately caused by the wrongful act or omission or the negligence of an employee acting within the scope of employment if:

(A) the property damage, personal injury ... 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....

However, section 101.055(2), relied upon by appellant, excludes from the TTCA, and in effect reinstates governmental immunity for, claims arising from emergency actions of an employee “... taken with conscious indifference or reckless disregard for the safety of others.... ” Fernandez v. City of El Paso, 876 S.W.2d 370, 376 (Tex.App.—El Paso 1993, writ denied). Thus, in the cases where actions are taken with reckless disregard, the municipality would remain immune from suit. Id. Nevertheless, such is not the ease here.

In the present case, Martin pled liability of the City based upon the TTCA. The trial court found that the City’s agent was not acting in reckless disregard for the safety of others, and ultimately based the City’s liability on Article 6701d, section 75, which requires drivers of authorized vehicles to exercise due regard for the safety of all persons. Tex.Rev.Civ.Stat.Ann. art. 6701d, § 75(b) (Vernon 1977).

When the trial court found the City was not acting in reckless disregard for the safety of others while responding to an emergency, it rendered section 101.055(2) inapplicable, and placed Martin’s claim within section 101.021, the general liability provision of the TTCA. Black v. Nueces County Rural Fire Prevention Dist. No. 2, 695 S.W.2d 562, 563 (Tex.1985). Consequently, liability had to have been predicated upon 1) use of a motor driven vehicle, 2) during the course and scope of employment, and 3) under circumstances where the agent would be personally liable to the claimant. § 101.021. It is with this standard in mind, that we shift our focus to the trial court’s findings of fact and conclusions of law.

In addressing the City’s points of error, we are mindful that conclusions of law are drawn from findings of fact, Mercer v. Bludworth, 715 S.W.2d 693, 697 (Tex.App.— Houston [1st Dist.] 1986, writ ref'd n.r.e.), and thus we will review those findings of fact upon which the challenged conclusions of law are based.

When findings of fact are filed and are unchallenged, they are entitled the same weight as a jury verdict, and are binding on an appellate court unless the contrary is established as a matter of law, or there is no evidence to support the finding. McGalliard v. Kuhlmann, 722 S.W.2d 694 (Tex.1986). Likewise, we will review the findings by disregarding all contrary evidence in order to see if there is any evidence to support the findings. If any supporting evidence remains, the trial court’s judgment must be upheld. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In unchallenged findings of fact and conclusions of law, the trial court found that the collision involved the motor vehicles of Martin and the City, that the agent was acting within the scope of his employment, and that the defendant’s agent did not look to the left as he entered the intersection. Because, it is undisputed that both parties were using motor vehicles, and that the City’s agent was acting in performance of his duties in responding to the emergency, we will only review the record to determine whether any evidence exists to support the third requirement under section 101.021, that the agent would be personally liable to the claimant.

In considering only evidence favorable to the judgment, we note that at least twice in the record, the City’s agent testified that he did not look in the direction from which Martin was traveling before he entered the intersection. As we cannot say that the record is devoid of supporting evidence, we conclude the undisputed findings support personal liability for negligence. Consequently, we overrule appellant’s points of error that there is no evidence to support Conclusions of Law four and five.

Accordingly, the judgment is affirmed.