City of Dallas v. Brian Loncar, Sue Loncar ( 2014 )

Reversed and Rendered; and Opinion Filed January 16, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00705-CV
CITY OF DALLAS, Appellant
V.
BRIAN LONCAR, SUE LONCAR, ET AL., Appellees
On Appeal from the County Court at Law No. 3
Dallas County, Texas
Trial Court Cause No. CC-09-06753-C
MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion by Justice Bridges
The City of Dallas appeals the trial court’s order denying in part the City’s plea to the
jurisdiction. In three issues, the City argues the trial court erred in denying its plea to the
jurisdiction because the City is immune from suit and immunity has not been waived. The City
further complains the trial court should not have considered certain affidavits. We reverse the
trial court’s order to the extent the order denied the City’s plea to the jurisdiction and render
judgment that appellees take nothing on their claims.
Between 6:30 and 7:00 p.m. on May 15, 2008, Paul Ferguson was dispatched through
911 to a reported automatic fire alarm call at a Lowe’s Home Improvement store on Lemmon
Avenue. Ferguson, driving a fire engine, left the fire station and headed west on Lemmon
Avenue. Ferguson had the engine’s emergency lights and siren activated, and the roadway was
dry. It was daylight, and rush hour had just ended. Ferguson activated his air horn intermittently
as he drove, activating it liberally at each intersection on Lemmon Avenue. He also kept his foot
over the brake at each intersection. Two blocks before the intersection at Lemmon Avenue and
Lomo Alto Drive, Ferguson activated the air horn at Herschel Street, approximately 400 feet
from the intersection of Lemmon and Lomo Alto.
As he approached the intersection of Lemmon and Lomo Alto, Ferguson slowed down
and looked for any oncoming traffic. All three westbound lanes on Lemmon were filled with
vehicles, but there were no vehicles in the left turn lane to the southbound Dallas North Tollway
entrance. When Ferguson first approached the intersection, he saw two vehicles in the three
southbound lanes of Lomo Alto. One vehicle was stopped on Lomo Alto in the left turn lane for
travel eastbound onto Lemmon, yielding the right-of-way to Ferguson. A second vehicle was
stopped in the right turn only lane for travel onto westbound Lemmon, also yielding the right-of
way. Ferguson believed the vehicles were all stopped to allow the fire engine to pass through the
intersection.
Because the three westbound lanes of Lemmon were blocked, the only alternate route to
continue westbound on Lemmon was the left turn lane for the southbound Dallas North Tollway
entrance. Ferguson continued to slow down and again looked around for oncoming vehicles
before entering the intersection of Lemmon and Lomo Alto. Ferguson “stayed on the air horn”
as he passed through the intersection. Ferguson saw a car driven by Brian Loncar in the center
lane of southbound Lomo Alto about a half block from the intersection. The center lane of
southbound Lomo Alto is a straight-through lane only, and Ferguson believed the car would not
come straight through the intersection because the southbound North Dallas Tollway entrance
ramp was closed and blocked with barrels due to construction. Ferguson believed the car would
hear the emergency siren and horn, see the emergency lights, and stop and yield the right-of-way
like the other two vehicles traveling south on Lomo Alto had done.
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As Ferguson entered the left-turn only lane, he continued to slow down and looked for
oncoming traffic. Just before Ferguson entered the intersection, William Walters, a firefighter
riding in the engine’s front passenger seat, told Ferguson it was “all clear right.” In a subsequent
affidavit, Walters stated that “all clear right” is commonly understood by drivers and acting
officers within the Dallas Fire-Rescue Department to mean the traffic to the right is clear or is
yielding the right-of-way to an emergency vehicle.
Ferguson had his foot covering the brake as he entered the intersection, and he was
traveling “at or just under the speed limit” of thirty-five miles per hour. As the engine crossed
the middle of the intersection, it collided with a car driven by Brian Loncar. The Texas Peace
Officer’s Crash Report filed following the accident indicated that Loncar “entered the
intersection with a yellow light into the path of” Ferguson’s engine. A witness stopped at the
intersection indicated Loncar “was accelerating into the intersection” and, in the witness’s
opinion, Loncar was trying to “beat” the yellow light. Another witness stated Loncar “did not
yield” to Ferguson’s engine. Loncar subsequently sued the City, asserting negligence claims.
The City filed a plea to the jurisdiction arguing it retained immunity from suit for Loncar’s
claims. The trial court granted in part and denied in part 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 Ferguson’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
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questions of law. Id. at 226. Therefore, we review de novo a trial court’s ruling on a
jurisdictional plea. Id.
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 issue 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 issue on the jurisdictional issue, the trial
court rules on the plea to the jurisdiction as a matter of law. Id. at 228.
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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 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. Loncar does not dispute that Ferguson was performing a discretionary
duty and acting within the scope of his employment. Thus, as Loncar concedes in his brief, the
only question in this appeal is “whether the City conclusively established that Ferguson acted in
good faith.”
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
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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 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, Ferguson’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 fire against the risk involved to the general public when responding to the
emergency. Based on his thirty years as a driver engineer for the Dallas Fire-Rescue
Department, Ferguson understood that the activation of an automatic fire alarm is indicative of
the presence of a fire. Although automatic fire alarms can frequently turn out to be false alarms,
emergency responders who are enroute to an emergency call have no way of knowing when an
alarm will be false. Therefore, as an emergency responder, Ferguson has a duty to treat each
emergency call with urgency. Ferguson considered the fact that Lowe’s Home Improvement is a
large commercial structure, it could be a highly flammable structure with a high number of
potential victims, and the call needed to be responded to immediately because persons and
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property could be in imminent danger and the immediate presence of Ferguson’s fire equipment
and fire personnel was necessary to prevent serious injury to potential victims.
Ferguson’s affidavit stated that, when he increased his speed over the limit on Lemmon,
he believed in good faith that the need to get to the potential fire outweighed the perceived
minimal risk of an accident. Ferguson recognized there was some risk when a driver of a fire
engine makes a decision to increase his speed while responding to a Code 3 call. However,
given that Lemmon is a relatively straight road, the dry condition of the road at the time, and the
vehicles Ferguson saw that were traveling on the roadway but had stopped to yield the right-of-
way to Ferguson’s emergency vehicle, Ferguson did not perceive that increasing his speed on
Lemmon or traveling through the intersection of Lomo Alto and Lemmon at or just under the
speed limit would cause any danger to any other driver close to his location. Ferguson assessed
the need to get to the potential fire quickly against the risk of accident by entering the
intersection and in good faith determined that his emergency lights were clearly visible, his siren
was clearly audible, and the vehicles in the intersection were properly yielding the right-of-way
to his emergency vehicle.
Ferguson’s affidavit stated that, taking into account all of the above factors, the potential
danger posed by increasing his speed above the 35-mile-per-hour speed limit or traveling
through the intersection of Lomo Alto and Lemmon at or just under the speed limit, was far less
than the danger posed by the potential fire and potential loss of life. Given that Ferguson’s
engine was the closest available firefighting equipment to Lowe’s at that time, he had been
dispatched through the 911 system, and he was expected to respond urgently to provide
firefighting services, Ferguson stated he had no other reasonable alternative but to proceed to the
location in the manner in which he proceeded.
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In his brief, Loncar argues Ferguson’s testimony is “riddled with inconsistencies.”
Specifically, Loncar cites Ferguson’s testimony that he was slowing the engine as he entered the
intersection and that his foot was on the brake as he entered the intersection. Loncar then cites
arguably contradictory evidence from the “black box” in Ferguson’s engine that Ferguson
“accelerated from the middle of the left turn lane as he entered the intersection . . . the brake was
never engaged” and “the throttle was at 100%.” Loncar argues these inconsistencies alone are
enough for a fact finder to question the veracity of Ferguson’s testimony. In addition, Loncar
cites Ferguson’s affidavit for the proposition that “Ferguson testified that he saw Loncar
approaching the intersection and knew that Loncar had a clear lane of travel and an unobstructed
line of sight.” Loncar argues Ferguson’s act in proceeding through the intersection was
particularly dangerous given that “Ferguson admits he saw Loncar approaching the intersection
in the center lane of Lomo Alto and knew that the center lane was open for travel into the
intersection.”
On the contrary, Ferguson’s affidavit indicates he slowed down as he approached the
intersection. Then, after assessing the need to get to the fire quickly against the risk of accident,
he concluded that the danger posed by increasing his speed above the thirty-five mile per hour
speed limit or traveling through the intersection of Loma Alto and Lemmon at or just under the
speed limit was far less than the danger posed by the potential fire and potential loss of life.
Further, Ferguson’s affidavit states he had his “foot covering the brake” as he entered the
intersection, presumably so that he could press the brake pedal more quickly if he needed to.
Ferguson does not state he was pressing the brake with his foot, only that his foot was covering
the brake. Thus, the statements in Ferguson’s affidavit are not inconsistent with evidence from
the “black box” that Ferguson accelerated into the intersection and did not apply his brakes.
Finally, Ferguson states in his affidavit that he saw Loncar’s vehicle approaching the intersection
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but believed Loncar would hear the emergency siren and horn and see the emergency lights and
would stop and yield the right-of-way to Ferguson’s engine as the other two vehicles traveling
south on Lomo Alto had done.
Citing City of Dallas v. Brooks, 349 S.W.3d 219, 228 (Tex. App.—Dallas 2011, no
pet.), Loncar argues “any reasonably prudent fire fighter would have recognized the risk of harm
created by this conduct.” However, Loncar’s argument imprecisely frames the issue. Brooks
holds that a plaintiff must do more than show that a reasonably prudent officer could have
stopped the pursuit; the plaintiff must show that “no reasonable person in the defendant’s
position could have thought the facts were such that they justified defendant’s acts.” Id. (quoting
Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993)). Additionally, as noted in
Brooks, the supreme court’s opinion in Chambers, which involved a high-speed police pursuit,
described the good faith test as setting “an elevated standard of proof for the nonmovant seeking
to defeat a claim of official immunity in response to a motion for summary judgment, while
reasonably accommodating the competing interests involved.” Id. (quoting Chambers, 883
S.W.2d at 656).
The legislature has placed a higher burden upon civilian drivers than upon emergency-
vehicle drivers; this burden is justified because emergency vehicle operators face more exigent
circumstances than civilian drivers and because civilian drivers have the advantage of being able
to prevent collisions with emergency vehicles due to the emergency vehicles’ use of sirens and
lights and due to the conspicuous coloring of emergency vehicles. Hudson, 179 S.W.3d at 699-
700. Emergency responders are entitled to presume other drivers will respect emergency
priorities. Id.
Loncar argues the affidavits of Ferguson and Walters, standing alone, “cannot
conclusively establish what a reasonably prudent officer might believe.” On the contrary, the
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court in Wadewitz noted that Wadewitz relied chiefly on his own affidavit and the affidavit of an
expert witness to establish good faith. See Wadewitz, 951 S.W.2d at 466. The court emphasized
that an expert’s testimony will support summary judgment only if it is “clear, positive and direct,
otherwise credible and free from contradictions and inconsistencies, and could have been readily
controverted.” Id. (quoting TEX. R. CIV. P. 166a(c)). The court determined the evidence did not
conclusively establish Wadewitz acted in good faith because the evidence did not take into
account both sides of the Chambers balancing test and did not, therefore, establish that either
Wadewitz or his expert “had a suitable basis for concluding that a reasonable officer in
Wadewitz’s position could or could not have believed that Wadewitz’s actions were justified.”
Id. at 467.
The record shows the need to which Ferguson was responding was a potentially life
threatening fire at Lowe’s Home Improvement. Ferguson’s engine was the closest available
firefighting equipment to Lowe’s, and its immediate presence was necessary to prevent injury or
loss of life in the fire. Ferguson drove in the left-turn-only lane because it was the only option
available allowing him to continue westbound on Lemmon in response to the emergency call.
On the other hand, the risks involved were that Ferguson’s engine would collide with another
vehicle or vehicles, resulting in serious injuries or death. However, the road was dry, rush hour
had ended, and Ferguson was operating his emergency siren, horn, and lights. Although
Ferguson saw Loncar traveling on Lomo Alto, the other cars on Lomo Alto had stopped and
yielded the right-of-way to Ferguson. We conclude this evidence conclusively established
Ferguson acted in good faith. See Wadewitz, 951 S.W.2d at 465-67. Accordingly, the trial court
erred to the extent it denied 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.
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We reverse the trial court’s judgment to the extent it denied the City’s plea to the
jurisdiction and dismiss those claims for want of jurisdiction. In all other respects, the trial
court’s judgment is affirmed.
/David L. Bridges/
120705F.P05 DAVID L. BRIDGES
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CITY OF DALLAS, Appellant On Appeal from the County Court at Law
No. 3, Dallas County, Texas
No. 05-12-00705-CV V. Trial Court Cause No. CC-09-06753-C.
Opinion delivered by Justice Bridges.
BRIAN LONCAR AND SUE LONCAR, ET Justices Moseley and Lang-Miers
AL., Appellees participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that:
appellees Brian Loncar, Sue Loncar, individually and as next friends of Hailey
Loncar, Abby Loncar, and Grace Loncar and Intervenors Raquel Luna,
individually and as next friend of Victor Luna, Erika Luna, and Miguel Luna take
nothing on their claims..
It is ORDERED that appellant CITY OF DALLAS recover its costs of this appeal from
appellees BRIAN LONCAR, SUE LONCAR, INDIVIDUALLY AND AS NEXT FRIENDS OF
HAILEY LONCAR, ABBY LONCAR, AND GRACE LONCAR AND INTERVENOR
RAQUEL LUNA, INDIVIDUALLY AND AS NEXT FRIEND OF VICTOR LUNA, ERIKA
LUNA, AND MIGUEL LUNA.
Judgment entered January 16, 2014
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
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