the City of San Antonio v. Armando D. Riojas ( 2020 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-19-00220-CV
THE CITY OF SAN ANTONIO,
Appellant
v.
Armando D. RIOJAS,
Appellee
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CI13534
Honorable David A. Canales, Judge Presiding
Opinion by: Beth Watkins, Justice
Dissenting Opinion by: Luz Elena D. Chapa, Justice
Sitting: Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Delivered and Filed: February 26, 2020
AFFIRMED
The City of San Antonio appeals an order denying its plea to the jurisdiction. The City
argues the trial court erred in denying its plea because it is immune from appellee Armando D.
Riojas’s claims that he suffered injuries arising from San Antonio Police Department Officer
Vincent Tristan’s operation or use of his patrol vehicle. We affirm the trial court’s order.
BACKGROUND
On the afternoon of February 17, 2017, Officer Tristan was driving his patrol vehicle on
Interstate Highway 37 South. The stretch of highway where Officer Tristan was driving consists
04-19-00220-CV
of three main lanes for southbound traffic and a fourth exit lane on the right side of the highway.
In his affidavit, Officer Tristan stated that as he moved into the exit lane, traffic seemed to be
slowing for no obvious reason, so he activated his vehicle’s emergency lights. This caused the
vehicle’s camera to begin recording, and the resulting video starts approximately 30 seconds
before Officer Tristan turned on his lights. Officer Tristan’s microphone was activated shortly
thereafter. It is undisputed that Officer Tristan was driving his vehicle when he activated his lights.
Officer Tristan’s affidavit states that “[a]bout the time [he] turned on [his] lights,” he saw
a white car driven by Jolean Olvedo “crossing several lanes of traffic in an attempt to exit.” The
police report does not include this detail, but the video shows Olvedo moving into the far-right
main lane and braking for unknown reasons. The video also shows another car next to Olvedo—
which was also white—merging into her lane, cutting her off, and briefly stopping before driving
away. Olvedo then suddenly crossed two solid white lines separating the exit lane from the three
main lanes and exited the highway. This abrupt exit is the first act by Olvedo noted in the police
report. Olvedo told SAPD officers that she exited suddenly because the driver of the other white
car cut her off. Officer Tristan concluded, however, that Olvedo “made an improper lane change
and impeded traffic behind her,” so after Olvedo exited, Officer Tristan radioed a nearby officer
to pull her over and ticket her.
While Officer Tristan was watching Olvedo in the right lane, Riojas was driving his
motorcycle in the far-left lane directly behind a car driven by Klaryssa Vela. Riojas and Vela were
behind Officer Tristan. Riojas saw Vela braking, so he took evasive action to avoid hitting her. He
then lost control of his motorcycle, fell off, and came to rest near a concrete barrier. Meanwhile,
his motorcycle slid and hit the back of Vela’s car. Officer Tristan saw Riojas’s motorcycle sliding
without a rider, and at the 00:57 mark of the video—approximately twenty-seven seconds after he
activated his lights—he can be heard telling the dispatcher, “I’ll be out here with a major,
-2-
04-19-00220-CV
motorcycle involved on 37.” He then maneuvered his vehicle from the right side of the highway,
where he had previously stopped after he turned on his lights, onto the left side of the highway
where Riojas was located. In the video, Officer Tristan can be heard remarking as he drove toward
Riojas that a white car that “stopped right in the middle of the freeway”—presumably Olvedo or
the other white car that cut her off—“is the one that caused this accident.”
In addition to Officer Tristan, three other people—Vela and two unidentified men—
stopped to help Riojas. The unidentified men (“the eyewitnesses”) approached Officer Tristan and
told him they believed the wreck was his fault. One eyewitness said, “You scared everybody on
the street by turning the [emergency] lights on for no reason.” Officer Tristan again remarked,
“That white car stopped in the middle of the freeway,” and told the eyewitnesses, “Don’t be saying
that it was my fault.” One of the eyewitnesses responded, “I’m just saying, what you did caused
this.” Officer Tristan then stated, “I saw the bike sliding, that’s when I turned my lights on.” Officer
Tristan’s police report documents the eyewitnesses’ statements, but it does not repeat his statement
that he turned his lights on because he saw Riojas’s wreck. Instead, it recites that Officer Tristan
saw Riojas’s motorcycle “without a rider sliding sideways” after he turned on his lights.
Officer Tristan asked Vela whether she slowed down because of his emergency lights, and
she told him that she slowed because the car in front of her did. The driver of the vehicle in front
of Vela left the scene, has not been identified, and has not provided any evidence in this case. In
his deposition, Riojas testified that he did not see Officer Tristan’s lights until after he fell off his
motorcycle. Because both Vela and Riojas were behind Officer Tristan when he activated his
vehicle’s lights and camera, the video does not show Vela braking, the steps Riojas took to try to
avoid hitting Vela, or Riojas’s fall from his motorcycle.
Riojas sued the City for his injuries. He later amended his petition to add both Olvedo and
the owner of the car she had been driving as defendants. The City filed a plea to the jurisdiction,
-3-
04-19-00220-CV
which argued that the City was immune from Riojas’s claims because: (1) the wreck was not
caused by Officer Tristan’s activation of his emergency lights and therefore did not arise from the
operation or use of a motor-driven vehicle; and (2) Officer Tristan performed a discretionary duty
in good faith and was therefore entitled to official immunity. The trial court denied the City’s plea
to the jurisdiction, and this interlocutory appeal followed.
ANALYSIS
Standard of Review
“A plea to the jurisdiction is a dilatory plea that defeats a cause of action whether the claims
have merit or not.” Am. K-9 Detection Servs., LLC v. Freeman, 556 S.W.3d 246, 267 (Tex. 2018).
This court reviews a trial court’s ruling on a plea to the jurisdiction de novo. San Antonio Water
Sys. v. Smith, 451 S.W.3d 442, 445 (Tex. App.—San Antonio 2014, no pet.). When a plea to the
jurisdiction challenges the pleadings, we must determine “if the pleader has alleged facts that
affirmatively demonstrate the court’s jurisdiction to hear the case.” Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe the pleadings liberally in the plaintiff’s
favor. Id. If the pleaded facts do not affirmatively demonstrate the trial court’s jurisdiction but also
do not reveal incurable jurisdictional defects, the plaintiff should be allowed to amend. Id.
However, if the pleadings affirmatively negate the existence of jurisdiction, then the plea may be
granted and the suit dismissed without allowing the plaintiffs an opportunity to amend. Id.
When a plea to the jurisdiction challenges the existence of jurisdictional facts, our review
mirrors that of a traditional summary judgment. Am. K-9, 556 S.W.3d at 267. Where the
jurisdictional issue implicates the merits of the parties’ claims, “we consider relevant evidence
submitted by the parties to determine if a fact issue exists.” Suarez v. City of Tex. City, 465 S.W.3d
623, 632–33 (Tex. 2015). “We take as true all evidence favorable to the nonmovant, indulge every
reasonable inference, and resolve any doubts in the nonmovant’s favor.” Id. If the evidence is
-4-
04-19-00220-CV
undisputed or does not raise a fact question, the trial court rules on the plea as a matter of law. Am.
K-9, 556 S.W.3d at 267. However, if the evidence raises a fact question on 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.” Miranda, 133 S.W.3d at 228.
“[A]rises from the Operation or Use of a Motor-Driven Vehicle”
The City first argues that the trial court erred in denying its plea to the jurisdiction because
there is no evidence that Riojas’s injuries arose from Officer Tristan’s operation or use of his patrol
vehicle. In support of this position, it argues: (1) the eyewitness testimony upon which Riojas relies
to create a fact issue is speculative and conclusory; (2) Officer Tristan’s operation or use of his
patrol vehicle merely created a condition that made the wreck possible; and (3) Officer Tristan’s
operation or use of his patrol vehicle was too attenuated from the wreck to have caused it.
Applicable Law
“Under the common law, municipalities like the City of [San Antonio] are immune from
suit and liability for damages arising from the performance of governmental functions absent a
clear and unambiguous legislative waiver of immunity.” Worsdale v. City of Killeen, 578 S.W.3d
57, 62 (Tex. 2019). The Texas Tort Claims Act (“TTCA”) lists police protection as a governmental
function. TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)(1). The TTCA provides a limited
waiver of liability for, inter alia, personal injury caused by the negligence of a governmental
employee acting within the scope of employment if the injury “arises from the operation or use of
a motor-driven vehicle” and “the employee would be personally liable to the claimant according
to Texas law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1). The TTCA does not define
“arises from,” but the Texas Supreme Court has held that an injury arises from a governmental
employee’s negligence if the plaintiff shows a “nexus between the operation or use of the motor-
driven vehicle or equipment and [the] plaintiff’s injuries.” Dall. Area Rapid Transit v. Whitley,
-5-
04-19-00220-CV
104 S.W.3d 540, 543 (Tex. 2003). The supreme court has “described the threshold as something
more than actual cause but less than proximate cause.” Ryder Integrated Logistics, Inc. v. Fayette
County, 453 S.W.3d 922, 928–29 (Tex. 2015). “‘[A]rise out of’ means . . . there is but[-]for
causation, though not necessarily direct or proximate causation.” Id. at 929 (internal quotation
marks omitted). The necessary causal nexus requires a showing that the use of the vehicle actually
caused the injury. Whitley, 104 S.W.3d at 543. However, the use of a vehicle “does not cause injury
if it does no more than furnish the condition that made the injury possible.” Id. A plaintiff must
show “negligent or otherwise improper use of a motor-driven vehicle.” Ryder, 453 S.W.3d at 928.
Application
1. The City’s challenges to the eyewitnesses’ statements
The City argues that “Riojas offered nothing to raise a fact issue that anything Officer
Tristan did caused Klaryssa Vela or the motorist in front of her to brake.” However, the City itself
introduced a police report and a video containing the two eyewitnesses’ opinions that Officer
Tristan caused the wreck by activating his emergency lights. The City contends these opinions are
speculative and conclusory and therefore amount to no evidence.
An opinion is speculative when it is based on guesswork or conjecture. Nat. Gas Pipeline
Co. v. Justiss, 397 S.W.3d 150, 156 (Tex. 2012); Rife v. Kerr, 513 S.W.3d 601, 615 (Tex. App.—
San Antonio 2016, pet. denied). An opinion is not speculative if it is rationally based on an
eyewitness’s perception. In re Molina, 575 S.W.3d 76, 81–82 (Tex. App.—Dallas 2019, orig.
proceeding); see also TEX. R. EVID. 701(a). “The requirement that an opinion be rationally based
on the perceptions of the witness is composed of two parts: (1) the witness must establish personal
knowledge of the events from which his opinion is drawn; and (2) the opinion drawn must be
rationally based on that knowledge.” Dodson v. Munoz, No. 04-17-00409-CV, 2018 WL 3747748,
at *6 (Tex. App.—San Antonio Aug. 8, 2018, no pet.) (mem. op.) (internal quotation marks
-6-
04-19-00220-CV
omitted). An opinion satisfies the personal knowledge requirement “‘if it is an interpretation of the
witness’s objective perception of events,’” and it is rationally based on the witness’s personal
knowledge “‘if a reasonable person could draw that opinion under the circumstances.’” Id.
(quoting Merrill v. Sprint Waste Servs. LP, 527 S.W.3d 663, 670 (Tex. App.—Houston [14th Dist.]
2017, no pet.)); see also Health Care Serv. Corp. v. E. Tex. Med. Ctr., 495 S.W.3d 333, 339 (Tex.
App.—Tyler 2016, no pet.) (“‘Rationally based’ means that the opinion must be one that a person
could normally form from observed facts.”).
Here, it is undisputed that the eyewitnesses were physically present on Interstate Highway
37 in the moments leading up to the wreck and immediately afterward. Although Riojas and Vela
stated they did not see Officer Tristan’s lights before the wreck, the video shows that the
eyewitnesses, in contrast, did claim to have personally witnessed the activation of Officer Tristan’s
emergency lights before the wreck. This is some evidence that the eyewitnesses personally
observed the traffic conditions in the moments leading up to the activation of Officer Tristan’s
emergency lights. Based on their perception of those conditions, they concluded that there was “no
reason” for Officer Tristan to have turned on his lights. See Dodson, 2018 WL 3747748, at *6. It
can also reasonably be inferred that the eyewitnesses observed the contemporaneous reaction of
their fellow motorists to this unexpected—and, in their view, unwarranted—display of emergency
lights. See id. It was rational for them to conclude that Officer Tristan “scared everybody on the
street”—including themselves—and, by doing so, caused Riojas’s wreck. See id.; see also Molina,
575 S.W.3d at 81–82. As a result, we conclude that the eyewitnesses’ opinions were not
speculative.
For similar reasons, we conclude that the eyewitnesses’ opinions were not conclusory. A
lay witness’s opinion is conclusory if it “does not provide the underlying facts to support the
conclusion.” Neal v. Machaud, No. 04-06-00037-CV, 2006 WL 3612867, at *3 (Tex. App.—San
-7-
04-19-00220-CV
Antonio Dec. 13, 2006, no pet.) (mem. op.); see also Justiss, 397 S.W.3d at 156 (opinion is
conclusory if it “state[s] a conclusion without any explanation”) (internal quotation marks
omitted). Additionally, “[c]onclusory statements are not susceptible to being readily
controverted.” In re S.N., Jr., Nos. 05-16-01010-CV, 05-16-01033-CV, 05-16-01034-CV, 05-16-
01035-CV, 2017 WL 343599, at *3 (Tex. App.—Dallas Jan. 18, 2017, pet. denied) (mem. op.).
As noted above, the eyewitnesses based their opinions about Officer Tristan’s fault on their
perceptions that there was “no reason” for Officer Tristan to activate his lights and that he “scared
everybody on the street” by doing so. See Dodson, 2018 WL 3747748, at 6–7; see also Molina,
575 S.W.3d at 81–82. Additionally, by relying on Vela’s conflicting statements to challenge those
opinions, the City has demonstrated that the opinions are susceptible to being readily controverted.
See In re S.N., 2017 WL 343599, at *3; see also Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989).
Because these opinions are rationally based on the eyewitnesses’ perception of the underlying facts
and are susceptible to being readily controverted, they are not conclusory. See Dodson, 2018 WL
3747748, at 6–7; In re S.N., 2017 WL 343599, at *3.
At most, the City’s complaints about the eyewitnesses’ statements go to the weight and
credibility to be given to that evidence. Cf. Keo v. Vu, 76 S.W.3d 725, 734 (Tex. App.—Houston
[1st Dist.] 2002, pet. denied) (“[F]actual weaknesses underlying an expert’s causation opinion
generally go to the testimony’s weight . . . the opinion is no evidence only if based completely
upon speculation and surmise.”) (emphasis in original); see also Wal-Mart Stores, Inc. v. Garcia,
974 S.W.2d 83, 87 (Tex. App.—San Antonio 1998, no pet.). Decisions about whether to credit a
witness’s opinion and the weight to give to that opinion are reserved for the factfinder. See City of
Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). While Vela and Riojas stated that they
personally did not see Officer Tristan’s lights before the wreck, we conclude that a reasonable
factfinder could believe the eyewitnesses’ assertion that the other drivers on Interstate Highway
-8-
04-19-00220-CV
37 were “scared” by Officer Tristan’s activation of his lights before Riojas fell from his
motorcycle, even if Vela and Riojas personally were not. As a result, under the applicable summary
judgment standard, any conflict between Vela’s and Riojas’s statements and the eyewitnesses’
perception cannot be resolved as a matter of law on a jurisdictional plea. See id.; see also Bandera
County v. Hollingsworth, 419 S.W.3d 639, 643 (Tex. App.—San Antonio 2013, no pet.). Because
we must view the evidence in the light most favorable to Riojas and indulge every reasonable
inference in his favor, we hold that the trial court did not err by concluding the eyewitnesses’
opinions presented more than a scintilla of evidence that this wreck would not have occurred but
for Officer Tristan unexpectedly and inexplicably activating his emergency lights. We therefore
overrule this challenge to the trial court’s order.
2. The City’s argument that Officer Tristan’s use of his vehicle was merely a condition that
made the wreck possible
The City also argues that even if Officer Tristan’s use of his lights played a role in the
wreck, that conduct merely created a condition that made the wreck possible. In Ryder, we applied
a similar analysis and concluded that the plaintiff’s claim that other drivers were distracted by a
sheriff’s deputy’s headlights “seems to be more properly classified as a condition that made the
accident possible than as the actual cause of the accident itself.” Ryder Integrated Logistics, Inc.
v. Fayette County, 414 S.W.3d 864, 869 (Tex. App.—San Antonio 2013, pet. granted), rev’d, 453
S.W.3d 922 (Tex. 2015). However, the supreme court rejected that conclusion because it was
undisputed that the deputy “was driving—and thus operating—his vehicle at the time the accident
occurred.” Ryder, 453 S.W.3d at 930. The supreme court concluded that the plaintiff had therefore
“alleged an injury arising from the tortious operation or use of a vehicle.” Id. Here, just like in
Ryder, it is undisputed that Officer Tristan was driving his vehicle when he turned on his
emergency lights and at the moment of Riojas’s wreck. See id. In other words, by arguing that
-9-
04-19-00220-CV
Officer Tristan’s conduct merely created a condition that made the wreck possible, the City has
asked us to reach the same conclusion the supreme court rejected in Ryder. See id. We decline to
do so.
A situation where conduct “merely furnish[es] a condition that made the accident
possible . . . generally arises when the forces that a person’s negligence has set into motion have
come to rest and then some new catalyst causes an injury.” Molina, 575 S.W.3d at 82. In Grisham,
a case upon which the City heavily relies—and which we relied on in Ryder for the proposition
the supreme court rejected—the plaintiffs were injured in a wreck that occurred when they
switched lanes after seeing a state trooper’s emergency lights. See Tex. Dep’t of Pub. Safety v.
Grisham, 232 S.W.3d 822, 826 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see also Ryder,
453 S.W.3d at 930. The trooper activated his lights because a parked car was blocking the left lane
of traffic, but unbeknownst to the plaintiffs, he had positioned his cruiser on the opposite side of
the highway. Grisham, 232 S.W.3d at 826. When the plaintiffs changed lanes to move away from
the cruiser, they hit the parked car. Id. at 824. Both the trooper’s lights and the positions of the two
stopped vehicles were conditions that already existed at the scene before the plaintiffs arrived. See
id. Under those facts, the Fourteenth Court of Appeals held that the trooper’s use of his emergency
lights and his positioning of the cruiser “did not actually cause the injury,” but “merely furnished
the condition that made [the] injury possible” because the plaintiffs could have reduced their speed
in response to the emergency lights instead of changing lanes. Id. at 827.
Here, in contrast, there is some evidence that Riojas’s wreck occurred contemporaneously
or nearly contemporaneously with Officer Tristan’s activation of his lights, 1 under circumstances
1
The dissent contends that “[n]o evidence in the record supports this leap.” However, at the 00:57 mark of the video—
approximately twenty-seven seconds after Officer Tristan activated his lights—Officer Tristan acknowledges a
“major, motorcycle involved” wreck “on 37.” By that time, Officer Tristan had pulled onto the shoulder and begun to
move his patrol vehicle toward Riojas’s wreck.
- 10 -
04-19-00220-CV
that made two eyewitnesses independently conclude that Officer Tristan’s operation or use of his
vehicle triggered the wreck. See Molina, 575 S.W.3d at 82 (“Here, according to [an eyewitness’s]
testimony, [the tortfeasor’s] conduct almost immediately caused the traffic accident.”). For that
reason, Grisham is distinguishable and does not support the City’s argument that Officer Tristan’s
operation or use of his patrol vehicle merely created a condition that made Riojas’s wreck possible.
See id. Because we hold that the trial court did not err by concluding that the City failed to prove
as a matter of law that Officer Tristan’s operation or use of his vehicle merely furnished a condition
that made the wreck possible, we overrule this challenge to the order denying the City’s plea to
the jurisdiction.
3. The City’s argument that Officer Tristan’s conduct was too attenuated from the wreck to
have caused it
Finally, the City argues that because Riojas’s wreck occurred “three lanes away” from
Officer Tristan’s patrol vehicle, and because Riojas’s motorcycle did not strike Officer Tristan’s
vehicle, the wreck was too geographically and temporally removed from Officer Tristan’s
activation of his emergency lights to have arisen from that action. The City premises this argument
on its claims that “[n]o vehicle in the far-left lane was required to brake in response to anything
Officer Tristan did in the far-right exit lane” and “[n]othing Officer Tristan is alleged to have done
immediately impacted on Riojas, on Vela, or on the motorist preceding Vela[.]” The City ignores,
however, that the Texas Transportation Code explicitly provides that when a police vehicle
activates its emergency lights, other drivers must “yield the right-of-way” to the police vehicle,
immediately move as close as possible to the right-hand side of the road, and “stop and remain
standing” until after the police vehicle has passed. TEX. TRANSP. CODE ANN. § 545.156(a). The
statute does not limit this mandatory duty to any specific lane of travel or proximity to the police
- 11 -
04-19-00220-CV
vehicle. Id. As a result, the claim upon which the City premises its “attenuation” argument is
incorrect as a matter of law. See id.
Moreover, although section 545.156(a) requires drivers to “stop and remain standing” until
a police vehicle displaying its emergency lights drives away, the submitted evidence indicates that
Officer Tristan did not drive away from the scene after activating his lights. Instead, he pulled into
the space between the exit lane and the main lanes with his lights flashing, and at least two
eyewitnesses saw no discernible reason for his having activated his lights in the first place. Based
on the interplay between these facts and section 545.156(a)’s mandatory duties, a factfinder could
reasonably infer that when Officer Tristan activated his lights and stopped on the right side of the
road, his fellow motorists on Interstate Highway 37 were uncertain—or, as the eyewitnesses put
it, “scared”—about how to correctly respond. See id. Indeed, the video shows that traffic briefly
stopped moving altogether—including in the far-left lane—after Officer Tristan pulled over to the
right side of the road. The City therefore has not shown as a matter of law that “[n]o vehicle in the
far-left lane was required to brake in response to anything Officer Tristan did in the far-right exit
lane.” 2
Additionally, the supreme court has recently clarified that the statutory “arises from”
requirement is broader than some courts and parties had previously interpreted it. See PHI, Inc. v.
Tex. Juvenile Justice Dep’t, No. 18-0099, 2019 WL 1873431, at *5 (Tex. Apr. 26, 2019). In PHI,
a governmental employee, Webb, parked a vehicle on an incline, turned it off, and left without
applying its emergency brake. Id. at *1. After Webb walked away, the vehicle rolled backwards
2
Although the dissent posits that Riojas and Vela did not see Officer Tristan’s lights and therefore “were not taking
any actions required by the Texas Transportation Code in response to those lights,” the car in front of Vela was also
traveling in the far-left lane. While the fact that Riojas and Vela did not see Officer Tristan activate his lights before
the wreck may, ultimately, convince the factfinder that Officer Tristan’s actions did not cause Riojas’s injuries, we
cannot credit that evidence and ignore the contrary evidence from the eyewitnesses under our summary judgment
standards. See Millspaugh v. Bulverde Spring Branch Emergency Servs., 559 S.W.3d 613, 622 (Tex. App.—San
Antonio 2018, no pet.).
- 12 -
04-19-00220-CV
into PHI’s helicopter. Id. Based on Ryder’s statement that “‘a government employee must have
been actively operating the vehicle at the time of the incident,’” Webb’s employer argued that
PHI’s negligence claims were barred because Webb was not even in the vehicle, much less actively
operating it, when the wreck occurred. Id. at *5–6 (quoting Ryder, 453 S.W.3d at 927). The
supreme court disagreed, holding that even though Webb was not in the vehicle at the moment of
impact, the evidence raised a fact question about whether his failure to use the emergency brake
“led directly to the damages PHI sustained.” Id. at *5. The same conclusion is required here, where
two eyewitnesses who observed the temporal and geographic conditions surrounding Officer
Tristan’s activation of his lights and Riojas’s wreck both concluded that Officer Tristan’s operation
of his patrol vehicle was “directly, causally linked to the accident and the damages sustained.” See
id. Based on this evidence, the trial court did not err by rejecting the City’s contention that
“[n]othing Officer Tristan is alleged to have done immediately impacted on Riojas” or the drivers
immediately in front of him.
The dissent agrees with the City’s attenuation analysis and concludes that “the evidence
establishes that Riojas’s injuries arose from actions taken by other drivers that occurred prior to
Officer Tristan’s activating his emergency lights.” However, this conclusion assumes that as a
matter of law, the existence of one traffic hazard—the slowdown caused by Olvedo and the driver
of the other white car who cut her off—precludes a factfinder from determining that Officer Tristan
caused an additional hazard by negligently activating his emergency lights. Such a conclusion is
contrary to the City’s own pleadings, which allege that “another third party” committed negligent
acts that were “a proximate cause, contributing cause or sole cause of the occurrence” and which
seek “proportionate reductions in liability pursuant to Chapter 33 of the Texas Civil Practice and
Remedies Code.” Because nothing in the TTCA required Riojas to show that Officer Tristan’s
- 13 -
04-19-00220-CV
actions were the sole proximate cause of this wreck to defeat the City’s plea to the jurisdiction, we
cannot agree with the dissent’s analysis on this point.
Finally, the City argues, and the dissent agrees, that the City was entitled to a jurisdictional
dismissal because there is no evidence showing why the driver in front of Vela braked. As
explained above, the eyewitnesses’ statements are circumstantial evidence upon which a factfinder
could conclude that the driver in front of Vela braked because Officer Tristan activated his lights.
By rejecting this circumstantial evidence, the City essentially asks us to hold that Riojas was
required to produce direct evidence of the reasons for the unknown driver’s actions in order to
survive the City’s plea to the jurisdiction. However, even during a trial on the merits, causation
may be shown by either direct or circumstantial evidence. See Havner v. E-Z Mart Stores, Inc.,
825 S.W.2d 456, 459 (Tex. 1992). Because the direct evidence the City insists was necessary here
would not be required for Riojas to prevail at trial, we cannot agree that it was required to defeat
the City’s jurisdictional plea. See, e.g., Tex. Dep’t of Criminal Justice v. Simon, 140 S.W.3d 338,
348 (Tex. 2004), superseded in part on other grounds by TEX. GOV’T CODE ANN. § 311.034
(“There will, of course, be times when subjective awareness must be proved, if at all, by
circumstantial evidence.”); Bentley v. Bunton, 94 S.W.3d 561, 596 (Tex. 2002) (noting state of
mind “must usually . . . be proved by circumstantial evidence”); Transp. Ins. Co. v. Moriel, 879
S.W.2d 10, 23 (Tex. 1994) (recognizing “the practical difficulty of producing direct evidence” of
why a party did what it did).
For these reasons, the trial court did not err by rejecting the City’s contention that the wreck
was too attenuated from Officer Tristan’s conduct to have been caused by it. Accordingly, we
overrule this challenge to the trial court’s order denying the City’s plea to the jurisdiction.
- 14 -
04-19-00220-CV
Official Immunity
The City also argues that it is immune from Riojas’s claims because Officer Tristan is
entitled to official immunity. Riojas responds that the trial court did not err by denying the City’s
plea on official immunity grounds because the City did not show that Officer Tristan acted in good
faith.
Applicable Law
“A governmental employee is entitled to official immunity for the good-faith performance
of discretionary duties within the scope of the employee’s authority.” Tex. Dep’t of Pub. Safety v.
Bonilla, 481 S.W.3d 640, 642–43 (Tex. 2015). A police officer acts in good faith if a reasonably
prudent officer under the same or similar circumstances could have believed the need to take the
action in question outweighed the risk of harm the action posed to the public. See Wadewitz v.
Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). Accordingly, “good faith depends on how a
reasonably prudent officer could have assessed both 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 (emphasis in original); see also Univ. of Hous. v. Clark, 38 S.W.3d 578, 581
(Tex. 2000) (noting “testimony on good faith must discuss what a reasonable officer could have
believed under the circumstances, and must be substantiated with facts showing that the officer
assessed both the need to apprehend the suspect and the risk of harm to the public”).
“The ‘need’ aspect of the test refers to the urgency of the circumstances requiring police
intervention.” Wadewitz, 951 S.W.2d at 467. Factors to considering in analyzing the “need” prong
include the seriousness of the situation, whether the officer’s action is necessary to prevent injury
or death, and whether any alternative actions could achieve a comparable result. Id. The “risk”
prong considers public safety concerns such as the nature and severity of potential harm from the
officer’s actions, the likelihood of harm occurring, and “whether any risk of harm would be clear
- 15 -
04-19-00220-CV
to a reasonably prudent officer.” Id. Although an officer can rely on his own affidavit to show
good faith, the affidavit must address both the “need” and “risk” prongs. Id.; Harless v. Niles, 100
S.W.3d 390, 399–400 (Tex. App.—San Antonio 2002, no pet.).
Application
Because Riojas has not disputed that Officer Tristan acted within the scope of his authority
or that his actions were discretionary, the only question for us to consider is whether the City
conclusively showed that Officer Tristan acted in good faith. See Wadewitz, 951 S.W.2d at 466;
see also Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). The
governmental entity initially “carries the burden to meet the summary judgment proof standard for
its assertion that the trial court lacks jurisdiction.” 3 Garcia, 372 S.W.3d at 635. The City has not
satisfied that burden here. See Harless, 100 S.W.3d at 399–400. In his affidavit, Officer Tristan
stated that when he observed an unexpected traffic slowdown on the day of the wreck, “it was
within [his] discretion to decide upon the best course of action to take for the safety of other
motorists on I.H. 37 South.” However, he did not make any attempt to support that conclusion by
showing that he balanced the need he perceived with the potential risk posed by his chosen course
of action. See id. at 398–99. Without that analysis, his affidavit amounted to nothing more than a
“[s]imple subjective pronouncement of good faith” that was “insufficient as a matter of law to
meet [the City’s] burden.” Id. at 398.
The City argues that “the needs-versus-risks analysis does not apply in this context”
because this case does not involve a high-speed pursuit or an emergency response. However, we
have found no authority to support the City’s assertion that a needs-risk analysis is only appropriate
3
In its briefing, the City argues that Riojas did not challenge its evidence of good faith in the trial court. However,
because we review a trial court’s ruling under the same standards that would apply to a summary judgment, Riojas
did not have any burden to produce contrary evidence unless and until the City showed it was entitled to judgment as
a matter of law on this issue. See Mission, 372 S.W.3d at 635.
- 16 -
04-19-00220-CV
in those limited situations. To the contrary, as Riojas notes, at least one of our sister courts has
required evidence to perform a needs-risk balancing under facts like these. See Junemann v. Harris
County, 84 S.W.3d 689, 694–95 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
For these reasons, the trial court did not err by denying the City’s plea to the jurisdiction
on the basis of official immunity. We overrule this challenge to the trial court’s order denying the
City’s plea to the jurisdiction.
Judicial Admission
Finally, the City argues Riojas judicially admitted that Olvedo’s conduct, not Officer
Tristan’s, caused the wreck. “Assertions of fact, not pleaded in the alternative, in the live pleadings
of a party are regarded as formal judicial admissions.” United Parcel Serv., Inc. v. Rankin, 468
S.W.3d 609, 626 (Tex. App.—San Antonio 2015, pet. denied). It is well-established, however, that
“a judicial admission must be clear, deliberate, and unequivocal.” Id. (internal quotation marks
omitted). Here, it is undisputed that Riojas sued the City before he sued Olvedo. The City has not
explained why Riojas’s allegations against a newly added defendant constitute clear, deliberate,
and unequivocal admissions that essentially amount to an abandonment of his original claims
against the City. See id.
Moreover, “[i]t has long been the law in this state that a defendant’s act or omission need
not be the sole cause of an injury, as long as it is a substantial factor in bringing about the injury.
There may be more than one proximate cause of an injury.” Bustamante v. Ponte, 529 S.W.3d 447,
457 (Tex. 2017) (internal citations omitted). As the City itself notes, “[a]lthough Riojas pled that
he was reacting to a slowdown initiated by [Olvedo], he also asserted that his evasive action
resulted from Officer [Tristan]’s actions.” These allegations of two possible causes for this wreck
do not constitute a clear, deliberate, and unequivocal admission that Olvedo’s conduct was the sole
- 17 -
04-19-00220-CV
cause of Riojas’s injuries. See Rankin, 468 S.W.3d at 626. Accordingly, we overrule this challenge
to the trial court’s order.
CONCLUSION
We affirm the trial court’s order.
Beth Watkins, Justice
- 18 -