Kolster v. City of El Paso

972 S.W.2d 58, 1998 WL 288708

• Court: Texas Supreme Court
• Decided: August 25, 1998
• Docket: 96-1246
• Status: Published

Opinions

ENOCH, Justice,

delivered the opinion of the Court,

in which GONZALEZ, BAKER, ABBOTT, and HANKINSON, Justices, join.

As we explained today in City of Amarillo v. Martin,1 to recover damages resulting from the emergency operation of an emergency vehicle, a plaintiff must show that the operator has committed an act that the operator knew or should have known posed a high degree of risk of serious injury — in other words, that the operator has acted recklessly.

We granted writ of error in this case because, like Martin, it presented the question of how culpable a municipal employee’s acts must be in operating an emergency vehicle in an emergency situation before a municipality should answer in damages for injury caused by the employee. As in Martin, the trial court in this case erroneously determined that negligence was the correct standard. Unlike the City of Amarillo in Martin, however, the City of El Paso here did not object to the jury charge on grounds that negligence was not the correct standard. Likewise, neither the City’s motion for directed verdict nor its motion for judgment non ob-stante veredicto raised this issue.

Willette Kolster argues that the court of appeals erred in holding that she did not raise a fact issue regarding the negligence of ambulance driver Dawn Sloan. Because the City did not preserve error on the question of what standard of culpability the trial court should have applied to Sloan’s actions, we are bound to review Kolster’s challenge under the standard submitted to the jury — simple negligence.² Therefore, we must address only one question: whether the court of appeals erred in holding that Kolster presented no evidence raising a fact issue regarding whether Sloan operated her ambulance negligently while responding to an emergency call.³

Kolster’s claim for recovery based on a finding of negligence survives a “no evidence” review. Uncontroverted evidence showed that Sloan was not wearing corrective lenses at the time of the accident, in violation of a restriction on her driver’s license. Sloan did introduce evidence showing that she does not need glasses for driving. Further, she testified that she was not given a vision test when she received the license that she held at the time of the accident. But, Sergeant James Moorman, a twenty-year veteran of the Department of Public Safety and director of an El Paso driver’s license office, testified that a vision test is always given to driver’s license applicants to determine whether the applicant has 20/40 vision without corrective lenses, and he confirmed that the purpose of the vision test is to ascertain whether the applicant can drive safely without corrective lenses. In light of the contradictory evidence, we cannot conclude that no evidence supports the jury’s finding that Sloan was negligent.

Kolster also asserted that Sloan’s failure to wear glasses was negligence per se:4 We have held that the unexcused violation of an ordinance could constitute negligence as a matter of law if the ordinance was designed to prevent injury to the class of persons to which the injured party belongs.⁵ Because we conclude that Kolster otherwise produced some evidence of negligence in this case, we need not reach the negligence per se issue.

We reverse the judgment of the court of appeals and remand the cause to the trial court to render judgment in accordance with this opinion.

PHILLIPS, Chief Justice, and SPECTOR, Justice, concur in the judgment only. HECHT, Justice, filed a dissenting opinion, in which OWEN, Justice, joined.

1 . 971 S.W.2d 426 (Tex.1998).

2 . See Sage Street Assoc. v. Horthdale Constr. Co., 863 S.W.2d 438, 447 (Tex.1993); Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985).

3 . 931 S.W.2d365, 370.

4 . See Tex. Transp. Code § 521.221(c) (driving a motor vehicle in violation of a license restriction is a misdemeanor criminal offense).

5 . See El Chico Corp. v. Poole, 732 S.W.2d 306, 312 (Tex.1987).