Raul G. Garza v. the City of Houston

Affirmed and Memorandum Opinion filed July 24, 2007

Affirmed and Memorandum Opinion filed July 24, 2007.

In The

Fourteenth Court of

Appeals

____________

NO. 14-06-00475-CV

____________

RAUL G. GARZA , Appellant

V.

THE CITY OF HOUSTON , Appellee

On Appeal from the 151st

District Court

Harris County, Texas

Trial Court Cause No. 05-03994

M E M O R A N D U M O P I N I O N

Appellant, Raul G. Garza, appeals the trial court = s granting of

summary judgment in favor of the City of Houston. In two issues Garza argues

(1) the trial court erred in granting summary judgment and (2) there is a material

fact at issue that should have been presented to a jury. We affirm.

Responding to a Code 1 B A assault in

progress with weapon @ B call, Officer

Arthur Carbonneau of the Houston Police Department ( A HPD @ ) drove east on

West Little York with his overhead lights, siren, and air horn activated. [1]

At the Antoine intersection, he had a red light. According to Carbonneau, he

came to a complete stop, observed the traffic yield to him, and then proceeded

through the intersection, where he was hit by Garza = s car. Carbonneau = s car was pushed

across the intersection where it collided with a traffic signal pole.

According to the witness statements on the police report, Garza = s car struck the

patrol car in the center of the driver = s side. All the

witnesses agreed Carbonneau slowed or came to a rolling stop before entering

the intersection. All the witnesses agreed the patrol car = s overhead red lights

and siren were activated as Carbonneau drove through the intersection. One

witness stated Carbonneau did everything he could to avoid the accident.

Garza contends he had a green light and was almost through

the intersection when Carbonneau hit his car. Garza sued the City for

negligence under the Texas Torts Claim Act ( A TTCA @ ), specifically,

Section 101.021(1). Tex. Civ. Prac.

& Rem. Code Ann. ' 101.021(1) (Vernon 2005). [2]

Garza argues the City is liable for the damages caused by its agent. Tex. Civ. Prac. & Rem. Code Ann. ' 101.0215(a)(1)

(Vernon 2005). The trial court granted summary judgment in favor of the City

based on the affirmative defense of sovereign immunity.

We review the trial court = s summary judgment

de novo. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex.

2005). In reviewing a summary judgment, we take as true all evidence favorable

to the nonmovant, and we indulge every reasonable inference and resolve any

doubts in the nonmovant = s favor. Id . Summary judgment is

proper if the defendant disproves at least one element of each of the plaintiff = s claims, or

establishes all the elements of an affirmative defense to each claim. Am.

Tobacco Co. v. Grinnell , 951 S.W.2d 420, 425 (Tex. 1997).

The State, its agencies, and subdivisions, such as cities,

generally enjoy governmental immunity from tort liability unless immunity has

been waived. Tex. Civ. Prac. &

Rem.Code '' 101.001(3)(A) & (B) ( Vernon 2005 ), 101.025 (Vernon 2005); Ben Bolt-Palito Blanco Consol.

Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins.

Fund , 212 S.W.3d 320, 324 (Tex. 2006). The TTCA provides a limited waiver

of sovereign or governmental immunity, allowing suits to be brought against

governmental units only in certain, narrowly defined circumstances. Tex.

Dep = t of Criminal Justice v. Miller , 51 S.W.3d 583,

587 (Tex. 2001). The TTCA specifically provides this limited waiver in three

areas: (1) use of a publicly owned automobile; (2) premise defects; and (3)

injuries arising out of conditions or use of property. Tex. Civ. Prac. & Rem.Code Ann. ' 101.021; Tex.

Dep = t of Parks & Wildlife v. Miranda , 133 S.W.3d 217,

225 (Tex. 2004). A plaintiff must affirmatively demonstrate the court = s jurisdiction by

alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley ,

104 S.W.3d 540, 542 (Tex. 2003).

Although Section 101.021(1) of the TTCA waives immunity for

claims arising from the use of a motor-driven vehicle by a governmental

employee, the government retains its immunity from suit if one of the

exceptions to the waiver of immunity in the TTCA applies. Tex. Civ. Prac. & Rem. Code Ann. ' 101.021(1);

Tex. Dep = t. of Transp. v. Garza , 70 S.W.3d 802,

806 (Tex. 2002). An exception to the waiver for emergency action is found in

Section 101.055 of the Civil Practices and Remedy Code. [3]

Tex. Civ. Prac. & Rem. Code Ann.

' 101.055(2)

(Vernon 2005). Section 101.055(2) excludes the A operation of

emergency vehicles in emergency situations from the general waiver of immunity

for negligent operation of governmental vehicles. @ City of

Amarillo v. Martin , 971 S.W.2d 426, 430 (Tex. 1998). Therefore, liability

is waived only if the operator committed an act that the operator knew or

should have known posed a high degree of risk of serious injury. [4]

Id .

Official immunity is an affirmative defense that protects

governmental employees from personal liability. Telthorster v. Tennell ,

92 S.W.3d 457, 460 (Tex. 2002). A A governmental

employee is entitled to official immunity for (1) the performance of

discretionary duties (2) that are within the scope of the employee = s authority, (3)

provided that the employee acts in good faith. @ Id . at

461 (citing City of Lancaster v. Chambers , 883 S.W.2d 650, 653 (Tex.

1994)). When official immunity shields a government employee from liability,

the government employer is shielded from liability under the doctrine of

sovereign immunity. University of Houston v. Clark , 38 S.W.3d 578, 580

(Tex. 2000).

It is undisputed that, at the time of the accident,

Carbonneau was an on-duty police officer, in an HPD patrol car, responding to

an emergency call. Thus, he was performing a discretionary act within the

scope of his authority. See Chambers , 883 S.W.2d at 655, 658 (finding

on-duty police officer = s high speed chase a discretionary act

within scope of his authority); Weatherly v. Derby , No. 14-01-00548-CV,

2002 WL 1789701 , at *1 (Tex. App. C Houston [14th

Dist.] Aug. 1, 2002, no pet.) (not designated for publication) (stating

discharge of duties generally assigned to police officer responding to

emergency call is discretionary act within scope of his authority). Therefore,

having met the first two prongs of the official immunity test, the City is

entitled to summary judgment if the evidence establishes as a matter of law

Carbonneau = s response to the Code 1 call was in good faith. See

Wadewitz v. Montgomery , 951 S.W.2d 464, 466 (Tex. 1997) (finding government

employee has immunity from actions performed within his discretionary duties if

employee acts in good faith). Good faith depends on how a reasonably prudent

police officer would have assessed both the need for the officer = s response and the

risks of the officer = s course of action. Id . at 467

(applying Chambers , 883 S.W.2d at 656 ).

In his affidavit,

Carbonneau addressed the need/risk balancing test as follows:

Due to my years of experience with the police department and responding

to emergency calls, I have developed a good understanding of how dangerous

calls involving weapons can be and the need to have officers present to

deescalate [sic] the situation. At the time of the accident, I believed in

good faith that the need to get to the scene outweighed the minimal risk of

accident. I properly assessed the need for me to get to the scene of the

assault involving weapons quickly against the risk of accident by entering the

intersection and in good faith determined that my lights were clearly visible,

my siren was clearly audible, and that vehicles were properly yielding right of

way to me.

Carbonneau

decided the risk, based on his emergency lights and siren being activated and

the cars yielding to his vehicle, to be outweighed by the need to respond to

the assault with a A weapon call. @ Thus, Carbonneau

established he assessed the need for his action by considering the seriousness

of the situation and the necessity of his immediate presence to control the

situation and prevent injury or loss of life versus the possibility of an

accident. See Clark , 38 S.W.3d at 581 (stating an officer acts in bad

faith only if he could not have reasonably reached the decision that the need

to respond outweighed the clear risk to the public of harm). The only question

remaining is whether no reasonably prudent police officer would agree with

Carbonneau = s assessment.

Sergeant Tymniak

of the Metro Police Department, who was in the first car in the turn lane at

the intersection, observed the entire incident. He saw Carbonneau = s approach, his

entrance into the intersection, and the accident. In his deposition, Tymniak

stated he was a Metro officer; had completed the 240-hour academy for peace

officers under the Texas Commission on Education Standards B Officer Standards

and Education; had previously been a police officer in the City of Jersey

Village; and had received training in emergency response. Tymniak explained

Carbonneau slowed to a A rolling stop @ of less than 5

miles per hour, assessed the situation, and then accelerated as he proceeded

through the intersection. [5]

He also stated Carbonneau = s car approached and entered the

intersection with the emergency lights and siren engaged, and that the cars at

the intersection yielded, except for Garza = s. Further

questions revealed:

Q: Would it be B would you say that the HPD officer

approached the intersection recklessly?

A: No, ma = am.

Q: In your opinion, how would you characterize how he approached the

intersection?

A: Based on prior observations of other type [sic] situations, the

officer exercised due caution. He reduced his speed to a reasonably and

prudent speed prior to entering the intersection.

He made, apparently, an assumption that traffic was

going to let him pass through because cars had stopped. And immediately, he

started to accelerate once he entered the intersection. Not prior but once he

entered the intersection.

And at that point in time, the impact occurred.

Q: And which B how did the vehicles impact in the

intersection? Which one struck which one?

A: Mr. Garza = s vehicle, a red vehicle, entered

the intersection and struck the officer = s vehicle, who was already in the intersection, as he was

accelerating. Left side of the officer = s vehicle. [6]

* * *

Q: Would you say, based on your

life = s experience and your profession,

whether or not Officer Carbonneau was driving and operating his B an emergency vehicle appropriately

at the time of the accident?

A: Yes.

Thus,

the City presented summary judgment evidence that a reasonably prudent police

officer, in the same or similar circumstances, could have believed that the

actions Carbonneau performed were reasonable.

In his response to the City = s motion for

summary judgment, Garza presented no evidence to contradict any material fact.

In his brief, Garza concluded Carbonneau acted A haphazardly, @ but the record

offers no controverting evidence that no reasonably prudent officer

could have believed the facts justified Carbonneau = s conduct. See

Chambers , 883 S.W.2d at 657 (holding nonmovant must show no reasonable person

in the officer = s position could think officer = s actions

justified). In his affidavit, Garza claims he did not see the patrol car = s emergency lights

or hear the sirens; he did not directly state that Carbonneau was not

running his emergency lights, siren, and horn. See Burke v. Satterfield ,

525 S.W.2d 950, 955 (Tex. 1975) (stating an affidavit must be direct,

unmistakable, and unequivocal as to the facts sworn to, so that perjury can be

assigned upon it). Similarly, Garza = s affidavit states

that when he A was about to reach the other end of the intersection, @ Carbonneau A came out of

nowhere without warning and crashed into my vehicle. @ It continues

that as Garza A was about to reach the other end of the intersection, @ he looked right

and saw Carbonneau A running through the intersection @ and that Carbonneau

never A stopped nor

appeared to slow down. @ However, these comments appear to

pertain to when Carbonneau was already in the intersection and accelerating,

not as he approached the intersection and was slowing. Therefore, Garza

offered no proof as to Carbonneau = s approach to the

intersection or the reasonableness of his assessment of the situation. Thus,

Garza did not raise an issue of material fact challenging Carbonneau = s good faith.

Garza contends an issue of material fact exists as to

whether his car hit Carbonneau = s, or Carbonneau = s car hit his

car. We first observe that this issue is not dispositive of whether Carbonneau

was acting in good faith when he entered the intersection. Moreover, in his

affidavit, Garza states he entered the intersection with a green light. He

argues that the logical inference is Carbonneau = s light was red.

However, emergency vehicles have the privilege of proceeding through a red

light in emergency situations. Martin , 971 S.W.2d at 431 . A In operating an

authorized emergency vehicle, the operator may . . . proceed past red or stop

signal or stop sign after slowing as necessary for safe operation. @ Tex. Transp. Code Ann. ' 546.001(2)

(Vernon 1999) (emphasis added). Based on the competent summary judgment

evidence, it is uncontested Carbonneau slowed before proceeding through the

intersection.

Further, Garza claims he was almost through the

intersection when Carbonneau hit his car. However, the damage to Garza = s car was directly

to its front, while the damage to the patrol car was in the center of the

driver = s side. The

police report and eyewitness statements corroborated Carbonneau = s assertion that

Garza hit the patrol car. Garza = s affidavit

claiming the patrol car hit his car is self-serving and conclusory, supported

by no independent facts and, therefore, does not raise an issue of material

fact. See Purcell v. Bellinger , 940 S.W.2d 599, 602 (Tex. 1997)

(finding that conclusory statements unsupported by facts are not proper summary

judgment proof); Brownlee v. Brownlee , 665 S.W.2d 111, 112 (Tex. 1984)

(finding affidavits consisting only of conclusions insufficient to raise

issues of fact).

After examining the record, we find the City established an

exception to the waiver of immunity under the TTCA. Accordingly, Carbonneau is

protected by official immunity and the City is entitled to governmental

immunity. We therefore overrule Garza = s two issues and

affirm the judgment of the trial court.

/s/ J. Harvey Hudson

Justice

Judgment rendered

and Memorandum Opinion filed July 24, 2007.

Panel consists of

Chief Justice Hedges and Justices Hudson and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Carbonneau is no longer a Houston Police Officer as

he resigned for reasons unrelated to this incident.

[2] Although not included within his Third Amended

Petition, Garza would also be required to prove that A personal injury and death so caused by a condition or

use of tangible personal or real property if the governmental unit would, were

it a private person, be liable to the claimant according to Texas law. @ Tex. Civ.

Prac. & Rem. Code Ann. '

101.021(2).

[3] Section 101.055(2) states in pertinent part:

This

chapter does not apply to a claim arising:

***

(2) 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 Ann. ' 101.055(2).

[4] Additionally, the law applicable to emergency action

in this context is Section 546.005 of the Texas Transportation Code. Tex. Transp. Code Ann . ' 546.005 (Vernon 1999). In interpreting the

predecessor of section 546.005, the Texas Supreme Court held that although this

provision imposes a duty to drive with due regard for others by avoiding

negligent behavior, it only imposes liability for reckless conduct. Martin ,

971 S.W.2d at 431 ; City of Amarillo v. Pruett , 44 S.W.3d 702, 705 (Tex.

App. C Amarillo 2001, pet. denied).

[5] Garza = s

brief contends the difference between a complete stop, as Carbonneau states in

his affidavit, and a A rolling stop @ as

stated in Tymniak = s deposition, constitutes a fact question for the

jury. However, the difference is of no consequence. The City, for the purpose

of this appeal, concedes Carbonneau made a rolling stop. Also, Tymniak reached

his conclusions, pertaining to a reasonable police officer = s actions, based on the fact that Carbonneau executed

a A rolling stop. @

[6] Tymniak added that Garza was driving approximately

35 miles per hour, and did not appear to be slowing down at the time of impact.