City of Dallas v. Blanca K. Hernandez-Guerrero, Maria Martinez, Individually, as Next Friend to E.H. and J.H., Minors, Rosemary and Seferino Rodriguez ( 2018 )

REVERSE AND RENDER and Opinion Filed December 7, 2018
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00033-CV
CITY OF DALLAS, Appellant
V.
BLANCA K. HERNANDEZ-GUERRERO, MARIA MARTINEZ, INDIVIDUALLY, AS
NEXT FRIEND TO E.H. AND J.H., MINORS, ROSEMARY AND SEFERINO
RODRIGUEZ, Appellees
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-04828
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang-Miers
Opinion by Justice Bridges
The City of Dallas appeals the trial court’s order denying its plea to the jurisdiction in the
underlying car wreck involving a marked squad car. In three issues, the City argues the trial court
erred in denying its plea to the jurisdiction, the City is immune from suit because its officer is
entitled to official immunity, and the City is immune from suit because its officer was responding
to an emergency. We reverse the trial court’s order and render judgment that appellees take
nothing on their claims.
In April 2016, Blanca Hernandez-Guerrero filed her original petition in which she alleged
she was a passenger in a vehicle that was struck by the unknown driver of a city-owned police
squad car. Hernandez-Guerrero alleged claims of negligence, injury by motor vehicle, and
respondeat superior. In May 2016, the City filed an answer in which it asserted Hernandez-
Guerrero’s claims concerned a governmental function, and the limited waiver of governmental
immunity did not apply to claims arising from the action of a governmental employee while
responding to an emergency call. In addition, the City argued its employee would be entitled to
official immunity since he was performing a discretionary function within the scope of his
employment and acting in good faith. Because its employee was entitled to immunity, the City
argued, it was also immune.
In January 2017, the trial court entered an order consolidating Hernandez-Guerrero’s
claims with the claims of the other appellees bringing legal actions arising out of the accident. In
September 2017, the City filed a plea to the jurisdiction challenging the trial court’s exercise of
subject-matter jurisdiction over appellees’ claims against the City. The City alleged that, on
December 21, 2014, Dallas police officer Antwan Dunn was dispatched to an emergency call at a
Group Home where a man stole a purse, threatened to kill staff and residents, and was potentially
armed with a knife. Dunn activated his emergency lights and siren and proceeded to the location
in “Code 3” status. Dunn drove north on North Jim Miller Road and approached the intersection
at Lake June Road, where the traffic light was red. Dunn applied his brakes and slowed to clear
the intersection, and he proceeded when he believed the intersection was safe to enter. As Dunn
proceeded through the intersection, a vehicle in which Hernandez-Guerrero was a passenger
collided with Dunn. The dash camera video from Dunn’s vehicle showed his emergency lights
and siren were engaged for five minutes before he approached the intersection, and at least thirteen
vehicles pulled over for him.
The City asserted its immunity from suit was based on Dunn’s entitlement to official
immunity. The City argued Dunn was performing a discretionary duty, acting within the scope of
his authority, and acting in good faith. The plea to the jurisdiction was supported by Dunn’s
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affidavit in which he described the circumstances of the accident and explained his actions and
perception of the urgency of the situation and the risks involved.
In response to the City’s plea to the jurisdiction, appellees argued Dunn did not come to a
complete stop at the intersection despite the fact that Dunn’s training for responding to Code 3
emergencies required a complete stop at red light intersections. Instead, Dunn was traveling at
twenty-one miles per hour when he entered the intersection. Dunn received a letter of reprimand
stating he violated City policy when he was “involved in an on-duty motor vehicle accident that
was classified as PREVENTABLE.” Plaintiffs argued Dunn did not act in good faith because the
letter of reprimand showed no reasonable person in Dunn’s place could have thought the facts
were such that they justified Dunn’s actions. Plaintiffs acknowledged Dunn was responding to an
emergency but argued Dunn was “obliged to show appropriate regard for others and avoid reckless
conduct while doing so.” Plaintiffs alleged Dunn failed to operate his vehicle with appropriate
regard for the safety of all persons and demonstrated reckless disregard for the safety of others by
ignoring the requirements of his emergency response training and the City’s policies and
procedures when he traveled without stopping at the intersection on a red signal light. In December
2017, the trial court denied the City’s plea to the jurisdiction, and this appeal followed.
In its first issue, the City argues the trial court erred in denying its plea to the jurisdiction.
Specifically, the City argues it is immune from suit as a result of Dunn’s official immunity.
Immunity from suit defeats a trial court’s subject matter jurisdiction and thus is properly
asserted in a plea to the jurisdiction. Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d
217, 225-26 (Tex. 2004). Whether a court has subject matter jurisdiction and whether a pleader
has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction are
questions of law. Id. at 226. Therefore, we review de novo a trial court’s ruling on a jurisdictional
plea. Id.
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When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has
alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Id. We
construe the pleadings liberally in favor of the plaintiffs and look to the pleaders’ intent. Id. If the
pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction
but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading
sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. at 226-27. If the
pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be
granted without allowing the plaintiffs an opportunity to amend. Id. at 227.
However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we
consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional
issues raised, as the trial court is required to do. Id. When the consideration of a trial court’s
subject matter jurisdiction requires the examination of evidence, the trial court exercises its
discretion in deciding whether the jurisdictional determination should be made at a preliminary
hearing or await a fuller development of the case, mindful that this determination must be made as
soon as practicable. Id. Then, in a case in which the jurisdictional challenge implicates the merits
of the plaintiffs’ cause of action and the plea to the jurisdiction includes evidence, the trial court
reviews the relevant evidence to determine if a fact issue exists. Id. If the evidence creates a fact
question regarding the jurisdictional issue, then the trial court cannot grant the plea to the
jurisdiction, and the fact issue will be resolved by the fact finder. Id. at 227-28. However, if the
relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial
court rules on the plea to the jurisdiction as a matter of law. Id. at 228.
This standard generally mirrors that of a summary judgment under Texas Rule of Civil
Procedure 166a(c). Id. The standard allows the state in a timely manner to extricate itself from
litigation if it is truly immune. Id. After the state asserts and supports with evidence that the trial
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court lacks subject matter jurisdiction, the plaintiffs are required, when the facts underlying the
merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact
regarding the jurisdictional issue. Id. A summary judgment may be based on uncontroverted
testimonial evidence of an interested witness if the evidence is clear, positive and direct, otherwise
credible and free from contradiction, and could have been readily controverted. TEX. R. CIV. P.
166a(c); City of San Angelo Fire Dep’t v. Hudson, 179 S.W.3d 695, 698 (Tex. App.—Austin
2005, no pet.).
When reviewing a plea to the jurisdiction in which the pleading requirement has been met
and evidence has been submitted to support the plea that implicates the merits of the case, we take
as true all evidence favorable to the nonmovant. Miranda, 133 S.W.3d at 228. We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. Id.
Official immunity is an affirmative defense. Wadewitz v. Montgomery, 951 S.W.2d 464,
465 (Tex. 1997). A governmental employee has official immunity for the performance of
discretionary duties within the scope of the employee’s authority, provided the employee acts in
good faith. Id. at 466. A court must measure good faith in official immunity cases against a
standard of objective legal reasonableness, without regard to the employee’s subjective state of
mind. Id. Good faith depends on how a reasonably prudent officer could have assessed the need
to which an officer responds and the risks of the officer’s course of action, based on the officer’s
perception of the facts at the time of the event. Id. at 467 (applying City of Lancaster v. Chambers,
883 S.W.2d 650, 656 (Tex. 1994) (good faith balancing test in context of emergency response
case). The “need” aspect of the test refers to the urgency of the circumstances requiring official
intervention. Id. 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
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what alternative courses of action, if any, are available to achieve a comparable result. Id. The
“risk” aspect of good faith, on the other hand, refers to the countervailing public safety concerns:
the nature and severity of harm that the officer’s actions could cause (including injuries to
bystanders as well as the possibility that an accident could prevent the officer from reaching the
scene of the emergency), the likelihood that any harm would occur, and whether any risk of harm
would be clear to a reasonably prudent officer. Id.
Here, Dunn’s affidavit stated he understood that, in making discretionary decisions during
emergency response calls, he must weigh the need to urgently respond to a potentially life
threatening emergency against the risk involved to the general public when responding to the
emergency. Based on his law enforcement training and experience in responding to emergency
calls, Dunn understood that “Disturbance Emergency” calls, prioritized as Code 3 emergencies,
require an immediate response because victims could be in imminent danger, and the presence of
officers may be necessary to prevent serious bodily injury to persons at the scene.
Dunn’s affidavit stated that, when he proceeded through the intersection after slowing
down and seeing that the intersection was clear of traffic, he believed in good faith that the need
to get to the scene of the emergency call outweighed the perceived minimal risk of an accident.
Dunn recognized that there is some risk when an officer decides to proceed through an intersection
on a red light. Dunn slowed down from 73 to 47 to 21 miles per hour as he approached the
intersection. Given the dry condition of the roadway at the time and the fact that the vehicles he
observed were stopped in the eastbound and westbound lanes of traffic, Dunn’s emergency lights
and siren were activated, and Dunn had slowed down prior to entering the intersection, Dunn did
not perceive that proceeding through the intersection would cause any danger to any other driver
close to him.
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Dunn’s affidavit stated that, considering the above factors, the potential danger posed by
proceeding through the intersection was far less than the danger posed to the potential victims at
the location of the reported emergency disturbance. Given that Dunn had been dispatched through
the 9-1-1 system to respond and was expected to respond urgently to provide assistance to the
victims at the scene, Dunn had no other reasonable alternative but to proceed through the
intersection in the manner in which he proceeded. He did not engage in conduct that he believed
would pose a likelihood of serious injury to anyone. Dunn stated he was acting in good faith and
within the scope of his discretionary duty as a Dallas police officer. Dunn stated his actions were
reasonable in light of the circumstances, and any reasonably prudent police officer under the same
or similar circumstances could have believed that Dunn’s actions were justified.
In their brief, appellees argue the City failed to prove that it was entitled to judgment as a
matter of law. Appellees argue they raised a factual dispute as to whether Dunn acted recklessly
or in violation of the Texas Transportation Code, defeating jurisdictional immunity, and as to
whether Dunn acted in good faith, defeating official immunity. Specifically, appellees argue the
City relies entirely on Dunn’s affidavit to show he slowed “as necessary for safe operation” at the
intersection. Appellees argue Dunn knew he was supposed to completely stop at the intersection
and look both ways, he was placed at fault by the City, and he received a reprimand for violating
City policy. In totality, appellees argue, this evidence raises a fact issue as to whether Dunn was
reckless or acted with conscious indifference. Further, appellees argue Dunn’s receipt of a letter
of reprimand indicates other Dallas police officers found Dunn’s actions to be unjustified and
constitutes evidence of a lack of good faith.
Section 546.001(2) of the transportation code provides that the operator of an emergency
vehicle may proceed past a red or stop signal or stop sign after slowing as necessary for safe
operation. TEX. TRANSP. CODE ANN. § 546.001(2). The fact that a collision occurred does not
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amount to a showing that an officer violated the statute and is insufficient to raise a genuine issue
of material fact as to whether the officer acted recklessly. See Tex. Dep’t of Pub. Safety v. Sparks,
347 S.W.3d 834, 842 (Tex. App.—Corpus Christi–Edinburg 2011, no pet.); see also City of
Laredo v. Varela, No. 04–10–619–CV, 2011 WL 1852439, *3–5 (Tex. App. —San Antonio
May 11, 2011, no pet.) (mem. op.) (holding officer’s failure to adhere to policy requiring
emergency vehicles to come to complete stop and failure to remember looking both ways
before entering intersection did not raise fact issue as to whether officer acted in conscious
indifference to or reckless disregard for safety of others).
A police officer’s own affidavit may establish good faith. City of La Joya v. Herr, 41
S.W.3d 755, 761 (Tex. App.—Corpus Christi–Edinburg 2001, no pet.) (citing Barker v. City of
Galveston, 907 S.W.2d 879, 888 (Tex. App.—Houston [1st Dist.] 1995, writ denied)). An
officer’s good faith is not rebutted by evidence that he violated department policy. City of Fort
Worth v. Robinson, 300 S.W.3d 892, 900 (Tex. App.—Fort Worth 2009, no pet.) (citing
Johnson v. Campbell, 142 S.W.3d 592, 596 (Tex. App.—Texarkana 2004, pet. denied)).
The record shows the need to which Dunn was responding was a potentially life
threatening emergency at a Group Home. Dunn slowed at the intersection, and he believed in
good faith that the need to get to the scene of the emergency call outweighed the perceived minimal
risk of an accident. The road was dry, the vehicles Dunn observed were stopped in the eastbound
and westbound lanes of traffic, Dunn’s emergency lights and siren were activated. Thirteen other
vehicles had stopped in response to the emergency sirens and lights. Dunn did not perceive that
proceeding through the intersection would cause any danger to any other driver close to him. Dunn
recognized that there is some risk when an officer decides to proceed through an intersection on a
red light. However, the potential danger posed by proceeding through the intersection was far less
than the danger posed to the potential victims at the location of the reported emergency
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disturbance. Under the facts and circumstances of this case, we conclude appellees failed to raise
a factual dispute as to whether Dunn acted recklessly or in violation of the Texas Transportation
Code. See Sparks, 347 S.W.3d 834 at 842; Varela, 2011 WL 1852439 at *3–5. Further, we
conclude the evidence conclusively established Dunn acted in good faith. See Wadewitz, 951
S.W.2d at 465-67. Accordingly, the trial court erred in denying the City’s plea to the
jurisdiction. We sustain the City’s first issue. Because of our disposition of the City’s first
issue, we need not address the City’s remaining issues.
We reverse the trial court’s order denying the City’s plea to the jurisdiction and render
judgment that appellees take nothing on their claims.
/Molly Francis/
DAVID L. BRIDGES
JUSTICE
180033F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CITY OF DALLAS, Appellant On Appeal from the 68th Judicial District
Court, Dallas County, Texas
No. 05-18-00033-CV V. Trial Court Cause No. DC-16-04828.
Opinion delivered by Justice Bridges.
BLANCA K. HERNANDEZ-GUERRERO, Justices Francis and Lang-Miers
MARIA MARTINEZ, INDIVIDUALLY participating.
AND AS NEXT FRIEND TO E.H. AND
J.H., MINORS, AND ROSEMARY AND
SEFERINO RODRIGUEZ, Appellees
In accordance with this Court’s opinion of this date, the trial court’s order denying the
City of Dallas’s plea to the jurisdiction is REVERSED and judgment is RENDERED that:
Blanca K. Hernandez-Guerrero, Maria Martinez, individually and as next friend
of E.H. and J.H., minors, and Rosemary and Seferino Rodriguez take nothing on
their claims against the City of Dallas.
It is ORDERED that appellant City of Dallas recover its costs of this appeal from
appellees Blanca K. Hernandez-Guerrero, Maria Martinez, individually and as next friend of
E.H. and J.H., minors, and Rosemary and Seferino Rodriguez.
Judgment entered December 7, 2018.
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