Opinion issued December 28, 2023
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00647-CV ——————————— CITY OF HOUSTON, Appellant V. BRENDA GARCIA CRUZ, Appellee
On Appeal from the 80th District Court Harris County, Texas Trial Court Case No. 2020-09825
MEMORANDUM OPINION
This interlocutory appeal arises from a motor-vehicle collision between
appellee Brenda Garcia Cruz and an animal enforcement officer employed by
appellant City of Houston (the “City”). Cruz sued the City under Texas Tort Claims Act (“TTCA”) section 101.021(1), alleging that the City was vicariously liable for
the alleged negligence and negligence per se of its employee while using or operating
a vehicle. In a traditional motion for summary judgment, the City challenged the trial
court’s jurisdiction by asserting governmental immunity from suit. The trial court
denied the motion.
In three issues on appeal, the City argues that it was entitled to governmental
immunity because: (1) the City’s employee did not breach a legal duty as required
to establish negligence under the TTCA; (2) the TTCA’s “emergency exception”
provision applied to retain the City’s immunity from suit; and (3) the TTCA does
not waive immunity for claims of negligence per se.1 We affirm.
Background
In February 2018, Bradi Jamison was on duty as an animal enforcement
officer employed by the City. At approximately 7:30 a.m., Jamison was allegedly
involved in a motor-vehicle collision with Cruz.
Cruz filed suit against the City alleging that it was vicariously liable for
Jamison’s negligent and negligent per se use or operation of a motor vehicle, which
caused the collision.2 Cruz alleged that Jamison acted negligently in numerous ways,
1 The City lists only the first two issues in the issues presented section of its appellate brief, but we construe the City’s argument as additionally raising the third issue concerning negligence per se. 2 Cruz also sued Jamison individually, but the trial court dismissed these claims on the City’s motion under the TTCA’s election-of-remedies provision. See TEX. CIV. 2 including by failing to maintain a proper lookout, use due caution, and use ordinary
and reasonably prudent care. Cruz also alleged that Jamison was negligent per se
based on violations of four sections of the Transportation Code.
The City filed an answer generally denying liability. The City also asserted
numerous affirmative defenses, including that it was immune from suit based on the
TTCA’s exceptions to the waiver of immunity.
The City filed a traditional motion for summary judgment. The City argued
that Jamison did not breach a legal duty as required to establish negligence; the
TTCA emergency exception applied to retain the City’s immunity; and the TTCA
does not waive governmental immunity for negligence per se claims. The City
supported its motion with an affidavit from Jamison and an unsworn declaration
from a witness to the collision.3
In her affidavit, Jamison averred that she was employed by the City as an
animal enforcement officer, and she was responding to a dog bite call when the
collision occurred. Although the affidavit provided no further detail concerning the
specific call to which she was responding, Jamison averred that animal bite calls
PRAC. & REM. CODE § 101.106(e) (“If a suit is filed under [the TTCA] against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.”). 3 The City’s motion also relied on an excerpt of Cruz’s deposition testimony. Because Cruz’s deposition testimony is not relevant to the issues on appeal, we need not consider this evidence.
3 “where a victim has been bitten” are one of the “highest priority calls” received by
animal enforcement officers. Such calls require “urgent, if not immediate response
because a person or an animal is in danger or the call is otherwise important.” “Dog
bites can be extremely dangerous” and can “cause severe bodily injuries . . . .”
Jamison has responded to numerous dog bite calls in her career, and she typically
responds to at least one dog bite call per workday.
Concerning the collision, Jamison averred that she was driving on the service
road of Loop 610 in Harris County when she “approached the intersection with
Galveston Road” and “came to a complete stop at the stop sign and looked left and
right for cross-traffic.” The record indicates that cross-traffic on Galveston Road did
not stop at the intersection.
Jamison intended to turn onto Galveston Road, but before she could do so, a
dump truck travelling on Galveston Road stopped just before the service road. The
dump truck apparently intended to turn onto the service road but was unable to do
so because Jamison’s vehicle blocked its path. While stopped, the dump truck
blocked Jamison’s view of cross-traffic on Galveston Road. Another car was stopped
behind Jamison, and Jamison decided to “inch forward” through the stop sign at “no
more than 5 mph” onto Galveston Road “to get a better view of westbound traffic
and complete [her] turn.” Jamison “did not believe that doing so posed a high degree
of risk of serious injury to [herself] or anyone else.” Meanwhile, Cruz was driving
4 on Galveston Road when she went around the dump truck and collided with
Jamison’s vehicle. Jamison estimated that Cruz was travelling at approximately fifty
to sixty miles per hour. The parties dispute who was at fault in causing the accident.
The driver of the vehicle stopped behind Jamison’s vehicle at the stop sign
submitted a declaration. According to this witness, Jamison came “to a complete
stop at the stop sign” and waited “for quite a while” to turn. The witness confirmed
that a large vehicle—apparently the dump truck—was stopped on Galveston Road,
unable to turn onto the service road. The witness saw Jamison “slowly inch forward
into the intersection” when Jamison’s vehicle collided with Cruz’s vehicle. The
witness estimated that Cruz was driving forty to fifty miles per hour. The record does
not indicate the speed limit on Galveston Road.
Cruz filed a summary judgment response disputing the City’s entitlement to
immunity. The City filed a reply. Cruz then filed a sur-reply in which she relied
heavily on Jamison’s testimony at her deposition, which occurred after the parties
filed their original summary judgment briefing in the trial court.4 Jamison testified
that she “was heading to an emergency call” at the time of the accident, and “[t]he
call was an emergency.” The City also filed a sur-sur-reply.
4 The City filed a motion to strike Cruz’s sur-reply as untimely, but the trial court denied the motion. The City does not challenge this ruling on appeal.
5 The trial court denied the City’s motion for summary judgment. This appeal
followed.
Appellate Jurisdiction
We first address a jurisdictional issue raised by Cruz in her appellate brief.
Cruz contends that this Court lacks appellate jurisdiction to consider the City’s first
and third issues challenging the denial of the summary judgment motion as to the
negligence and negligence per se claims, respectively, because these claims do not
implicate the trial court’s subject-matter jurisdiction. We disagree.
Appellate courts generally have jurisdiction to review final judgments and
interlocutory orders when specifically authorized by statute. Scripps NP Operating,
LLC v. Carter, 573 S.W.3d 781, 788 (Tex. 2019); Caress v. Fortier, 576 S.W.3d
778, 780 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). Civil Practice and
Remedies Code section 51.014(a)(8) authorizes an appeal from an interlocutory
order that “grants or denies a plea to the jurisdiction by a governmental unit” as that
term is defined in the TTCA. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8).
The Texas Supreme Court has interpreted this section to provide “for an
interlocutory appeal when a trial court denies a governmental unit’s challenge to
subject matter jurisdiction, irrespective of the procedural vehicle used.” Thomas v.
Long, 207 S.W.3d 334, 339 (Tex. 2006). It is well established that appellate courts
have jurisdiction under section 51.014(a)(8) to review an interlocutory trial court
6 order denying a motion for summary judgment that challenges the trial court’s
subject-matter jurisdiction. See, e.g., PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d
296, 301 n.1 (Tex. 2019) (concluding that court of appeals had jurisdiction to review
interlocutory order denying combined plea to jurisdiction and motion for summary
judgment “because the substance of the pleading was to raise sovereign immunity,
which implicates subject-matter jurisdiction”); Harris Cnty. v. Sykes, 136 S.W.3d
635, 638 (Tex. 2004) (“If the trial court denies the governmental entity’s claim of
no jurisdiction, whether it has been asserted by a plea to the jurisdiction, a motion
for summary judgment, or otherwise, the Legislature has provided that an
interlocutory appeal may be brought.”).
In its motion for summary judgment, the City argued that it was entitled to
governmental immunity from Cruz’s claims, and therefore the trial court lacked
subject-matter jurisdiction over the lawsuit. The City asserted three bases for its
jurisdictional challenge, two of which are relevant here. First, the City argued that
Jamison did not breach a legal duty constituting negligence under section
101.021(1). See TEX. CIV. PRAC. & REM. CODE § 101.021(1) (stating that
governmental unit is liable for property damage or personal injury caused by
employee’s negligence in operating or using motor-driven vehicle). Second, the City
argued that the TTCA does not clearly and unequivocally waive the City’s immunity
for claims of negligence per se. Based on both arguments—as well as a third
7 argument concerning the emergency exception, which is not included in Cruz’s
challenge to appellate jurisdiction—the City argued that it was immune from suit,
and thus the trial court lacked subject-matter jurisdiction over Cruz’s claims.
Because the City’s motion asserted its immunity from suit, we have appellate
jurisdiction under section 51.014(a)(8) to review the trial court’s interlocutory order
denying the motion for summary judgment. See id. § 51.014(a)(8); PHI, 593 S.W.3d
at 301 n.1; Sykes, 136 S.W.3d at 638; City of Houston v. Garza, No. 01-18-01069-
CV, 2019 WL 2932851, at *3 (Tex. App.—Houston [1st Dist.] July 9, 2019, no pet.)
(mem. op.) (“When a governmental unit asserts immunity in a motion for summary
judgment, a court of appeals has jurisdiction to review an interlocutory order
denying summary judgment.”).
Cruz relies on Ryder Integrated Logistics, Inc. v. Fayette County to support
her position that the issues of negligence and negligence per se do not implicate the
trial court’s subject-matter jurisdiction. See 453 S.W.3d 922 (Tex. 2015) (per
curiam). In that case, the Texas Supreme Court considered whether Ryder had
adequately alleged an injury arising from a Fayette County deputy sheriff’s use of a
vehicle such that the county’s immunity was waived under section 101.021(1)(A).
Id. at 926. In construing this section, the court stated that “there is no immunity
waiver absent the negligent or otherwise improper use of a motor-driven vehicle.”
Id. at 928 (emphasis added). The court concluded that Ryder had adequately alleged
8 negligence by contending that the deputy sheriff failed to follow proper protocols
and procedures when he “blinded and distracted” a driver on the highway, which
caused the collision. Id. Thus, contrary to Cruz’s argument, the Ryder court’s
immunity analysis considered whether the plaintiff adequately alleged negligence.
See id. (“[T]here is no immunity waiver absent the negligent or otherwise improper
use of a motor-driven vehicle.”); see also City of San Antonio v. Maspero, 640
S.W.3d 523, 533 (Tex. 2022) (“In Ryder, we addressed the requirement of
negligence or wrongful conduct by a government employee as part of a waiver of
immunity under the Tort Claims Act.”).
Cruz correctly points out that a plaintiff is not required to “put on [its] case
simply to establish jurisdiction” and, thus, a proper jurisdictional analysis should
“not involve a significant inquiry into the substance of the claims.” See Ryder
Integrated Logistics, 453 S.W.3d at 928 (quoting Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 554 (Tex. 2000)). The court made these statements in the context of
rejecting the county’s request to find that the deputy sheriff’s actions were not
negligent as a matter of law. Id. These statements merely limit the quantum of proof
required for a plaintiff to meet her burden to establish the trial court’s subject-matter
jurisdiction. Ryder does not, however, stand for the proposition that negligence is
not pertinent to the jurisdictional inquiry.
9 We hold that this Court has jurisdiction under Civil Practice and Remedies
Code section 51.014(a)(8) to review the trial court’s interlocutory order denying the
City’s motion for summary judgment.
Governmental Immunity
The City contends that it is immune from suit, and therefore the trial court
lacked subject-matter jurisdiction over the case, because: (1) Jamison did not breach
a legal duty as a matter of law; (2) the TTCA’s emergency exception applies to retain
the City’s immunity; and (3) the TTCA does not waive immunity for claims of
negligence per se.
A. Standard of Review
Sovereign or governmental immunity deprives a trial court of subject-matter
jurisdiction over a lawsuit against a governmental unit unless the Legislature has
consented to suit. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224
(Tex. 2004). Subject-matter jurisdiction is essential to a court’s authority to decide
a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).
“The party suing the governmental unit bears the burden of affirmatively showing
waiver of immunity.” Maspero, 640 S.W.3d at 528.
Subject-matter jurisdiction is a question of law that we review de novo. Fraley
v. Tex. A&M Univ. Sys., 664 S.W.3d 91, 97 (Tex. 2023); Miranda, 133 S.W.3d at
228; City of Houston v. McGriff, — S.W.3d —, No. 01-21-00487-CV, 2022 WL
10 17684046, at *6 (Tex. App.—Houston [1st Dist.] Dec. 15, 2022, no pet.). Likewise,
statutory interpretation is a question of law that we review de novo. Galbraith Eng’g
Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009).
Rule of Civil Procedure 166a governs summary judgments. A defending party
may move for summary judgment at any time with or without supporting affidavits.
TEX. R. CIV. P. 166a(b). When, as here, a party moves for traditional summary
judgment, the party is entitled to summary judgment if the evidence establishes that
there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law on the issues expressly set out in the motion. TEX. R.
CIV. P. 166a(c). The defendant has the initial burden to meet the summary judgment
standard of proof for a jurisdictional challenge. Mission Consol. Indep. Sch. Dist. v.
Garcia, 372 S.W.3d 629, 635 (Tex. 2012). “By requiring the [governmental unit] to
meet the summary judgment standard of proof . . . , we protect the plaintiffs from
having to put on their case simply to establish jurisdiction.” Miranda, 133 S.W.3d
at 228 (quotations omitted).
When the pleadings are challenged, we first consider whether the plaintiff has
alleged facts affirmatively demonstrating the trial court’s subject-matter jurisdiction.
Id. at 226; Tex. Dep’t of Pub. Safety v. Zakir, 665 S.W.3d 884, 890 (Tex. App.—
Houston [14th Dist.] 2023, no pet.). We construe the pleadings liberally in favor of
11 the plaintiff, consider the pleader’s intent, and accept as true all factual allegations
in the petition. Miranda, 133 S.W.3d at 226; Zakir, 665 S.W.3d at 890.
The trial court may consider evidence and must do so when necessary to
resolve the jurisdictional issues. TEX. R. CIV. P. 166a(c); Miranda, 133 S.W.3d at
227; Blue, 34 S.W.3d at 555. We take as true all jurisdictional evidence favorable to
the nonmovant and indulge every reasonable inference and resolve any doubt in
favor of the nonmovant. Miranda, 133 S.W.3d at 228; McGriff, 2022 WL 17684046,
at *6.
If the governmental unit meets its initial summary judgment burden to
establish a lack of jurisdiction, then the burden shifts to the nonmovant to raise a
genuine issue of material fact concerning the jurisdictional issue. TEX. R. CIV. P.
166a(c); Garcia, 372 S.W.3d at 635; McGriff, 2022 WL 17684046, at *6. If a fact
issue exists, summary judgment must be denied. Miranda, 133 S.W.3d at 227–28;
McGriff, 2022 WL 17684046, at *6. If, however, the evidence is undisputed or fails
to raise a fact issue, then the jurisdictional issue may be decided as a matter of law.
Garcia, 372 S.W.3d at 635; McGriff, 2022 WL 17684046, at *6.
B. Governing Law
As a political subdivision of the State, cities are generally immune from suit
unless the Legislature has consented to suit. See Dohlen v. City of San Antonio, 643
S.W.3d 387, 392 (Tex. 2022). The TTCA creates a limited waiver of governmental
12 immunity for claims of personal injury or property damage proximately caused by a
governmental employee’s negligent use or operation of a motor-driven vehicle, so
long as the employee would be liable personally. TEX. CIV. PRAC. & REM. CODE
§ 101.021(1); see id. § 101.025(a) (“Sovereign immunity to suit is waived and
abolished to the extent of liability created by this chapter.”).
The TTCA also provides several exceptions and exclusions that retain
immunity even if immunity would otherwise be waived by another provision. Id.
§§ 101.051–.067; see Rattray v. City of Brownsville, 662 S.W.3d 860, 867 (Tex.
2023) (“The [TTCA] may waive immunity in one breath and in the next take back
part of the waiver.”). Relevant here, section 101.055(2)—commonly called the
“emergency exception”—retains immunity for:
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 such a 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).
When construing a statute, the primary objective is to give effect to the
Legislature’s intent as expressed in the statutory language. TEX. GOV’T CODE
§ 312.005; Pochucha, 290 S.W.3d at 867. When the statutory terms are clear and
unambiguous, we apply their ordinary, common meaning. TEX. GOV’T CODE
§ 312.002(a); Miles v. Tex. Cent. R.R. & Infrastructure, Inc., 647 S.W.3d 613, 619 13 (Tex. 2022); Pochucha, 290 S.W.3d at 867. We consider statutory terms in the
context in which they are used rather than in isolation. Miles, 647 S.W.3d at 619.
When a statute defines a term, courts are “bound to construe that term by its statutory
definition only.” Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002);
see TEX. GOV’T CODE § 311.011(b).
C. Breach of Legal Duty
In its first issue, the City argues that it is entitled to summary judgment on
Cruz’s negligence claims because no genuine issue of material fact exists on whether
Jamison breached a legal duty.
As stated above, TTCA section 101.021 provides that a governmental unit in
the state is liable for:
(1) 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 § 101.021(1) (emphasis added). “Negligence is the
breach of a legal duty.” Ryder Integrated Logistics, 453 S.W.3d at 928; see Nabors
Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (stating elements
of negligence claim). Whether a defendant breached a legal duty is a question of
14 fact. Venegas v. Argueta, No. 01-20-00285-CV, 2021 WL 1679543, at *2 (Tex.
App.—Houston [1st Dist.] Apr. 21, 2021, no pet.) (mem. op.).
To establish breach of a legal duty, a plaintiff ordinarily must show that either:
(1) the defendant did something which an ordinarily prudent person exercising
ordinary care would not have done under the particular circumstances; or (2) the
defendant failed to do something which an ordinarily prudent person would have
done while exercising ordinary care. Id.; Douglas v. Aguilar, 599 S.W.3d 105, 108
(Tex. App.—Houston [14th Dist.] 2020, no pet.). All Texas drivers have a duty to
maintain a proper lookout and carefully observe the traffic and general situation at
and in the vicinity of an intersection. Douglas, 599 S.W.3d at 108. A driver’s failure
to yield the right-of-way does not give rise to negligence as a matter of law. Id.
Moreover, as the City correctly points out, the occurrence of a collision alone
is not evidence of negligence. Id. Rather, the plaintiff must prove “specific acts” of
negligence, which “is generally a question of fact for the jury to determine.” Id.
(quoting Gomez v. Adame, 940 S.W.2d 249, 252 (Tex. App.—San Antonio 1997, no
writ), and Dedear v. James, 184 S.W.2d 319, 321 (Tex. App.—Austin 1944, writ
ref’d w.o.m.)). “[W]hen evidence shows that the driver exercised some care, ‘it
becomes an issue of fact as to whether the driver’s conduct was negligent.’” Id.
(quoting Mata v. Coastal Agric. Supply, Inc., No. 01-17-00509-CV, 2018 WL
3150869, at *6 (Tex. App.—Houston [1st Dist.] June 28, 2018, no pet.)).
15 In her petition, Cruz alleged that Jamison “suddenly and without warning,
failed to control [her] speed, failed to yield [the] right of way to [Cruz] at the stop
sign, failed to use due caution when entering the intersection, and crashed into
[Cruz’s] vehicle.” The City does not dispute that Jamison owed Cruz these legal
duties, but the City contends that the summary judgment evidence established as a
matter of law that Jamison did not breach these legal duties.
The City relies on Jamison’s affidavit and deposition testimony in which
Jamison testified that she stopped at the stop sign, but her view of cross-traffic was
obstructed by a dump truck on Galveston Road. Without waiting for the dump truck
to move, Jamison slowly proceeded through the stop sign to better see cross-traffic
that was blocked by the dump truck. Jamison denied using her cell phone at the time
or acting at risk to the safety of herself or other drivers. She also stated that she would
not have proceeded through the stop sign if she “did not have a visual” of cross-
traffic. Jamison’s vehicle nevertheless collided with Cruz’s vehicle.
As this Court has previously stated, whether a defendant breached a legal duty
is a question of fact. Venegas, 2021 WL 1679543, at *2; see also Mata, 2018 WL
3150869, at *6. The City insists that Jamison proceeded into the intersection
carefully, but evidence that Jamison exercised some care creates a fact issue as to
whether she drove negligently. See Douglas, 599 S.W.3d at 108; Mata, 2018 WL
3150869, at *6. The breach-of-duty issue is appropriately resolved by a factfinder,
16 not by the trial court in summary judgment proceedings. See Ryder Integrated
Logistics, 453 S.W.3d at 928 (declining to conduct significant inquiry into substance
of negligence claim and thus “assume a role the Legislature has expressly reserved
for the finder of fact”) (citing TEX. CIV. PRAC. & REM. CODE § 33.003 (establishing
factfinder’s role)).
Moreover, the City’s summary judgment evidence does not conclusively
establish that Jamison did not breach a legal duty. Jamison conceded that her view
of cross-traffic—which did not stop at the intersection—was obstructed by a large
vehicle, but she nevertheless decided to drive through the stop sign to better see
oncoming vehicles. A reasonably prudent person in Jamison’s situation might have
waited for the dump truck to move, coordinated with the driver behind Jamison to
move and allow space for the dump truck to turn, or sought an alternate route with
an unobstructed view of cross-traffic. See Venegas, 2021 WL 1679543, at *2.
When viewing the evidence in the light favorable to Cruz and indulging every
reasonable inference and resolving any doubt in her favor, as we must, we conclude
that a fact issue exists concerning whether Jamison breached a legal duty. See TEX.
R. CIV. P. 166a(c); Miranda, 133 S.W.3d at 228; McGriff, 2022 WL 17684046, at
*6. We therefore hold that the trial court properly denied the City’s motion for
summary judgment on Cruz’s negligence claims. See Miranda, 133 S.W.3d at 227–
28; McGriff, 2022 WL 17684046, at *6. We overrule the City’s first issue.
17 D. Emergency Exception
In its second issue, the City contends that the trial court erred by denying
summary judgment because the City retained its immunity under the TTCA’s
emergency exception. Specifically, the City argues that Cruz failed to expressly
plead that the emergency exception does not apply. Alternatively, the City argues
that the summary judgment evidence conclusively establishes that the emergency
exception applies.
1. Pleadings
The City first argues that Cruz did not expressly plead the inapplicability of
the emergency exception, which alone entitles the City to summary judgment. See
Zakir, 665 S.W.3d at 890 (stating that courts reviewing challenge to trial court’s
jurisdiction first consider whether pleadings allege facts affirmatively demonstrating
jurisdiction).
Cruz’s pleadings alleged that Jamison, a City employee acting in the scope of
her employment, “was operating [her] vehicle negligently” when she caused the
collision from which Cruz’s claims of property damage and personal injury arose.
The parties do not dispute that this allegation establishes a waiver of the City’s
immunity under section 101.021(1)(A). See TEX. CIV. PRAC. & REM. CODE
§ 101.021(1)(A). Construing the pleadings liberally, as we must, we conclude that
18 these allegations suffice to invoke the TTCA’s immunity waiver. See Miranda, 133
S.W.3d at 226.
The petition did not specifically deny that Jamison was responding to an
emergency call or reacting to an emergency situation when the collision occurred.
See TEX. CIV. PRAC. & REM. CODE § 101.055(2). But neither did the petition allege
any facts consistent with emergency action. See Miranda, 133 S.W.3d at 226 (stating
that pleadings are construed liberally in favor of pleader).
The only legal authority relied upon by the City is a single sentence from a
recent Texas Supreme Court decision: “The plaintiff bears the burden of negating
Section 101.055’s applicability.” See Maspero, 640 S.W.3d at 529. Even taken at
face value and out of context, this sentence says nothing about a plaintiff’s burden
to plead facts affirmatively negating the applicability of the emergency exception.
And upon closer examination, Maspero does not support the City’s position. First,
Maspero does not concern a challenge to the pleadings. Second, immediately
following the sentence that the City relies on here, the Maspero court stated that the
plaintiffs were required “to raise a fact issue that either” the emergency action
complied with applicable laws and ordinances or the emergency action was reckless.
Id. This sentence thus concerns an evidentiary burden, not a pleading one. Maspero
is therefore inapposite.
19 In a later opinion, the Texas Supreme Court expounded on the plaintiff’s
burden to establish a waiver of immunity under the TTCA. In Rattray v. City of
Brownsville, the court stated that the plaintiff must first allege “circumstances that
fit within a provision of the [TTCA] that authorizes a waiver.” 662 S.W.3d at 866.
This is because the “status quo” is that “no court is empowered to hear tort cases
against and impose liability on” governmental units. Id. As discussed above, Cruz’s
pleadings alleged a waiver of the City’s immunity under TTCA section
101.021(1)(A).
But the plaintiff’s jurisdictional burden requires more than merely pleading
sufficient jurisdictional allegations. That is, the plaintiff must also negate any
exceptions or exclusions to the immunity waiver which operate to withdraw the
waiver and retain immunity. Id. at 867 (stating that plaintiff’s burden requires both
“satisfying the provisions that clearly and affirmatively waive immunity and
negating any provisions that create exceptions to, and thus withdraw, that waiver”).
But “no great effort is needed to negate many or indeed most statutory exceptions to
the general waiver of immunity” in the TTCA. Id. A plaintiff need not “march
through” the TTCA “provision by provision.” Id. Instead, a plaintiff “need only
expressly negate those exceptions that their allegations plausibly implicate, which
will depend on the nature of the dispute.” Id. at 867–68.
20 The allegations in Cruz’s petition did not “plausibly implicate” the emergency
exception. See id. Cruz alleged that an animal enforcement officer employed by the
City negligently operated her vehicle and caused a motor-vehicle collision, but
nothing in the petition alluded to any emergency action. Indeed, an animal
enforcement officer is not the type of governmental employee who typically engages
in emergency action, such as police officers, firefighters, and paramedics. See TEX.
TRANSP. CODE § 541.201(1) (defining “authorized emergency vehicle” to include
fire department and police vehicles and ambulances but not animal enforcement
vehicles); City of Amarillo v. Martin, 971 S.W.2d 426, 429 (Tex. 1998) (stating that
purpose of TTCA emergency exception is “to balance the safety of the public with
the need for prompt responses to police, fire, and medical emergencies”). The dearth
of legal authority applying the TTCA’s emergency exception to actions of animal
enforcement officers further confirms that animal enforcement officers do not
typically engage in emergency action. This is not to say that animal enforcement
officers can never engage in emergency action. In this case, however, the factual
allegations in the petition did not plausibly implicate any emergency action, and thus
Cruz was not required to expressly negate the TTCA’s emergency exception in her
petition. See Rattray, 662 S.W.3d at 867–68.
21 As shown by the facts in this case, the governmental unit defendant has its
own role to play in ensuring that a trial court has subject-matter jurisdiction over a
case:
A governmental defendant, in turn, plays its role by identifying where jurisdiction might be lacking and raising any such deficiencies . . . . If a plaintiff has not shown that a claim affirmatively falls within a statutory waiver, the defendant should say so. Likewise, if the plaintiff omits or otherwise fails to negate a relevant exception to the waiver, the defendant should speak up. Both sides may develop and introduce evidence to support their contentions. This iterative process will ensure that both sides present their jurisdictional arguments to the court, which can play its continuing role of assessing its own jurisdiction.
Id. at 868. Once the City asserted its governmental immunity based on the
emergency exception in the summary judgment motion, the parties were allowed to
“develop and introduce evidence to support their contentions,” which is what
happened here. See id. We conclude that the City was not entitled to summary
judgment on the pleadings alone.
2. Emergency Action
The City next argues that Jamison’s affidavit and deposition testimony
conclusively established that Jamison was responding to an emergency call or
reacting to an emergency situation at the time of the accident. See TEX. CIV. PRAC.
& REM. CODE § 101.055(2). We disagree.
As stated above, section 101.055(2) retains governmental immunity for:
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
22 in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others[.]
Id. The TTCA defines “employee” broadly as “a person, including an officer or
agent, who is in the paid service of a governmental unit by competent authority” but
excluding independent contractors or their agents or employees. Id. § 101.001(2);
see Needham, 82 S.W.3d at 318 (stating that courts must construe statutorily defined
term “by its statutory definition only”). The record indicates and the parties do not
dispute that Jamison met the TTCA’s definition of “employee.”
The TTCA does not define “emergency call” or “emergency situation,” but
courts have interpreted the term “emergency” broadly. E.g., City of San Antonio v.
Hartman, 201 S.W.3d 667, 672–73 (Tex. 2006); City of San Antonio v. Smith, 562
S.W.3d 75, 82 (Tex. App.—San Antonio 2018, pet. denied); see also City of Houston
v. Hussein, No. 01-18-00683-CV, 2020 WL 6788079, at *8 (Tex. App.—Houston
[1st Dist.] Nov. 19, 2020, pet. denied) (mem. op. on reh’g) (collecting cases). The
Texas Supreme Court has emphasized that courts should avoid construing the
emergency exception “to exclude emergencies the Legislature might have intended
to include.” Hartman, 201 S.W.3d at 673.
In her affidavit, Jamison averred that animal enforcement officers are called
to handle “dangerous and/or aggressive animals, animal bites, animal cruelty and
abandonment, trapped wildlife and pets, injured animals, and stray or nuisance 23 animals.” She further stated that dogs “can cause severe bodily injuries . . . .” She
also stated that the “highest priority calls” include “bite cases where a victim has
been bitten,” and she “was heading to a dog bite call” at the time of the collision.
Jamison averred that priority calls require animal enforcement officers to respond
within two hours. In her deposition, Jamison testified that she was “heading to an
emergency call,” and she described the call as “high priority,” “urgent,” and “an
emergency.” However, Jamison also denied that she proceeded through the stop sign
“for an emergency.”
We agree with Cruz that this evidence is conclusory. A statement is
conclusory if it does not provide the underlying facts to support the conclusion.
Concierge Nursing Ctrs., Inc. v. Antex Roofing, Inc., 433 S.W.3d 37, 50 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied). Conclusory statements are not
competent summary judgment evidence. Id.; Gunville v. Gonzales, 508 S.W.3d 547,
560 (Tex. App.—El Paso 2016, no pet.); see Anderson v. Snider, 808 S.W.2d 54, 55
(Tex. 1991) (per curiam) (“[T]estimony comprised only of legal conclusions is
insufficient to support summary judgment as a matter of law.”).
Although Jamison testified that she was responding to an emergency call for
a dog bite, she did not provide any facts supporting this conclusion. For example,
Jamison did not say whether the dog was loose, whether the dog posed a continuing
danger to anyone, what type or size of dog was involved, or whether the dog injured
24 anyone. Rather, Jamison focused on dog bites generally. Jamison also testified that
she had two hours to respond to the call, which belies her statement that she was
engaged in emergency action. The City relies solely on Jamison’s conclusory
statements, which are not competent summary judgment evidence. See Anderson,
808 S.W.2d at 55; Concierge Nursing, 433 S.W.3d at 50; Gunville, 508 S.W.3d at
560.
We conclude that the City did not meet its burden to establish its entitlement
to judgment as a matter of law on whether Jamison was responding to an emergency
call or reacting to an emergency situation at the time of the collision. See TEX. R.
CIV. P. 166a(c); Miranda, 133 S.W.3d at 228 (stating that governmental unit is
required to meet summary judgment standard of proof when challenging trial court’s
jurisdiction). Accordingly, we hold that the trial court did not err by denying the
City’s motion for summary judgment on this ground. We overrule the City’s second
issue.
E. Negligence Per Se
In its third issue, the City argues that the TTCA does not waive immunity for
claims of negligence per se.
“Negligence per se is a common-law doctrine that allows courts to rely on a
penal statute to define a reasonably prudent person’s standard of care.” Reeder v.
Daniel, 61 S.W.3d 359, 361–62 (Tex. 2001). When the doctrine applies, a plaintiff
25 may prove negligence as a matter of law by proving that the defendant violated the
statute and the statutory violation proximately caused the plaintiff’s injury. Thomas
v. Uzoka, 290 S.W.3d 437, 445 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).
Negligence per se is not a separate cause of action that exists independently of a
common-law negligence claim. Id. Rather, negligence per se is one method of
proving a breach of duty, which is a necessary element in any negligence cause of
action. Id.
To support its argument, the City relies solely on the Waco Court of Appeals’
decision in Thoele v. Texas Department of Criminal Justice. See No. 10-18-00249-
CV, 2020 WL 7687864 (Tex. App.—Waco Dec. 22, 2020, no pet.) (mem. op.).
There, Thoele asserted various TTCA claims, including negligence per se based on
violations of rules promulgated by the federal Occupational Safety and Health
Administration (“OSHA”). Id. at *1. The trial court granted the governmental unit’s
motion to dismiss Thoele’s claims under Rule of Civil Procedure 91a, and Thoele
appealed. Id. On appeal, the Waco court noted that Texas courts do not recognize
OSHA violations as establishing negligence per se. Id. at *5 (collecting cases). The
court also stated that Thoele had not identified any section of the TTCA that waived
immunity for claims of negligence per se. Id. at *6. Thus, the Waco court affirmed
the trial court’s dismissal of Thoele’s negligence per se claims. Id.
26 Contrary to the City’s argument, Thoele does not stand for the proposition that
negligence per se is not actionable under the TTCA. Rather, the Waco court
primarily based its negligence per se holding on well-established law that OSHA
violations do not establish negligence per se. See id. at *5. Cruz does not rely on
violations of OSHA standards to establish negligence per se, and therefore Thoele is
inapposite in this respect.
The Waco court also based its holding on Thoele’s failure to establish that the
TTCA waives immunity for claims of negligence per se. See id. at *6. Here,
however, the City filed a traditional motion for summary judgment, and the City—
not Cruz—bore the initial burden to establish as a matter of law that the TTCA does
not waive governmental immunity for claims of negligence per se. See TEX. R. CIV.
P. 166a(c); Miranda, 133 S.W.3d at 228. A negligence per se cause of action does
not exist independently of a common-law negligence claim; rather, negligence per
se is one method of proving breach of duty. Thomas, 290 S.W.3d at 445. We have
already determined that Cruz adequately alleged negligence. Cruz’s allegations that
Jamison violated provisions of the Transportation Code are merely additional
methods of proving that Jamison breached a legal duty as required to establish
negligence. See id. The City did not meet its burden to establish that the TTCA does
not waive immunity for Cruz’s negligence per se claims.
27 We hold that the trial court properly denied summary judgment on Cruz’s
claims of negligence per se. We overrule the City’s third issue.
Conclusion
We affirm the trial court’s order denying the City’s motion for summary
judgment.
April L. Farris Justice
Panel consists of Chief Justice Adams and Justices Guerra and Farris.