The City of Mesquite, Texas v. Anthony Wagner

Dissenting Opinion Filed May 12, 2023

S In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-22-00826-CV

THE CITY OF MESQUITE, TEXAS, Appellant

V.

ANTHONY WAGNER, Appellee

On Appeal from the 68th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-22-02864

DISSENTING OPINION

Before Justices Carlyle, Goldstein, and Kennedy

Dissenting Opinion by Justice Goldstein

I start with the premise that the Texas Tort Claims Act (TTCA) provides a

limited waiver of sovereign immunity. TEX. CIV. PRAC. & REM. CODE ANN. §

101.021; City of Garland v Rivera, 146 S.W.3d 334, 337 (Tex. App.—Dallas 2004).

I do not assume, but rather specifically conclude based upon the record and

undisputed facts, that Officer Crawford was responding to an emergency situation.

I do not agree that there were sufficient allegations of Crawford’s “conscious

indifference or reckless disregard for the safety of others” or that Wagner presented

evidence of either to create a genuine issue of material fact as to one of the

exceptions listed in section 101.055(2). For the reasons set forth herein, I

respectfully dissent.

The Texas Tort Claims Act waives governmental immunity for “personal

injury . . . caused by a condition or use of tangible personal 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). The TTCA also

enumerates exceptions to the waiver of immunity, including the “emergency

exception” in section 101.055(2), entitled “Certain Governmental Functions” which

provides that the Act does not apply to a claim arising from:

(2) 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.

(3) from the failure to provide or the method of providing police or fire

protection.

TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.055(2), (3). “When the exception

applies, the [Act] is unavailable as a waiver of immunity even if the facts otherwise

fall within a waiver found in section 101.021.” Kaufman Cnty. v. Leggett, 396

S.W.3d. 24, 29 (Tex. App.—Dallas 2012, pet. denied) (citing City of San Antonio v.

Hartman, 201 S.W.3d 667, 671–72 (Tex. 2006)). The Act does not define the terms

“emergency call” or “emergency situation,” but the Texas Supreme Court has

interpreted the term “emergency” broadly. See Hartman, 201 S.W.3d at 673

(“[B]ecause the Act creates governmental liability where it would not otherwise

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exist, we cannot construe section 101.055(2) to exclude emergencies the Legislature

might have intended to include.”).

The Texas Supreme Court has recently stated, “[j]ust one valid jurisdictional

obstacle is enough for the court to halt further proceedings.” Rattray v. City of

Brownsville, No. 20-0975, 2023 WL 2438952, at *5 (Tex. Mar. 10, 2023)

(discussing subject matter jurisdiction under the Texas Tort Claim Act). The court

continued:

The fundamental rule is that the court may not reach the merits if it

finds a single valid basis to defeat jurisdiction. When one such ground

exists, it is not necessary that every other potential jurisdictional defect

be raised, fleshed out, or resolved at the outset. When defendants

challenge jurisdiction on multiple grounds, courts are therefore not

duty-bound to address them all if any one of them warrants dismissal.

Id. (emphasis in original) (footnote omitted). As I would conclude that the

emergency exception defeats jurisdiction, I address no other asserted jurisdictional

challenges.

In its plea to the jurisdiction, the City contended that Crawford was

responding to an emergency call or reacting to an emergency situation when he

deployed K-9 Kozmo. The term “emergency” has been construed broadly. See, e.g.,

Hartman, 201 S.W.3d at 672 (city was reacting to an emergency where, among other

things, there was imminent threat of severe injury, loss of life or property due to city-

wide flooding); Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 410–11 (Tex.

App.—Fort Worth 2006, pet. denied) (officers were reacting to emergency situation

where suspect in back of patrol car tried to escape through window while being

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transported to jail); see also Jefferson Cnty. v. Hudson, No. 09–11–00168–CV, 2011

WL 3925724, at *3 (Tex. App.—Beaumont Aug. 25, 2011, no pet.) (mem.op.)

(“emergency” refers to unforeseen circumstances requiring immediate action); City

of El Paso v. Segura, No. 08–02–00240–CV, 2003 WL 1090661, at *3 (Tex. App.—

El Paso March 13, 2003, pet. denied) (mem.op.) (plaintiff conceded that traffic

accident in construction area, to which officers were responding when they moved

large construction sign later struck by plaintiff, was emergency situation).

Construing this broadly as we must, I conclude that an emergency exists when law

enforcement is responding to a call involving a felony in progress, pursuing fleeing

suspects in the dark of night under rapidly developing circumstances, and providing

back up to officers.

It is undisputed that Crawford was on duty at approximately 3:30 a.m. and

called to assist Garland police officers who were responding to a burglary in progress

call at a commercial location. Upon his arrival, Crawford was advised of a foot

pursuit of burglary suspects and deployed his K-9 Kozmo. As described by

Crawford, “[t]he area was completely dark except for a Garland officer’s flashlight,

and the circumstances were developing rapidly with multiple suspects fleeing

officers on foot.” The Garland officer and Wagner were on the ground, and

Crawford recalled Wagner verbally engaging the Garland officer while the officer

was attempting to arrest Wagner. Upon the Garland officer’s direction, Crawford

proceeded to the left, with his body between Kozmo and the individuals on the

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ground. Kozmo unexpectedly and suddenly lunged toward Wagner, Crawford

tripped as the K-9 cut in front, and Crawford fell, causing Crawford to lose control

of Kozmo for several seconds. Crawford regained control over Kozmo within 10

seconds, but Kozmo had already bitten Wagner. Crawford testified that all his

actions were consistent with his training and industry standards applicable to K-9

officers.

The facts are not in dispute; the interpretation of those facts as to whether the

emergency exception applies is contested. Wagner contended that merely assisting

in a foot pursuit of suspects not even known to be armed does not qualify for the

emergency exception, averring that Crawford’s affidavit establishes that he acted

with “conscious indifference or reckless disregard for the safety of others” when he

failed to control his K-9.

Crawford did not use the term “emergency,” but the record reflects that he

deployed the K-9 in the pursuit of multiple fleeing burglary suspects in a completely

dark area under rapidly developing circumstances, and the suspects were ultimately

arrested. The Act refers to the “action of an employee while . . . reacting to an

emergency situation.” See TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2). “[W]e

cannot construe section 101.055(2) to exclude emergencies the Legislature might

have intended to include.” Hartman, 201 S.W.3d at 672–73 (rejecting appellate

court’s holding that “emergency” does not include “what might be colloquially

referred to as an ‘emergency’”); see Tooke v. City of Mexia, 197 S.W.3d 325, 333

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(Tex. 2006) (waiver of immunity must be clear and unambiguous); Wichita Falls

State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003) (generally, ambiguity must

be resolved in favor of retaining immunity), I would conclude that Crawford was

reacting to an emergency situation when he was called to assist in the nighttime foot

pursuit of fleeing felons and that Wagner has not raised a fact issue regarding

whether Crawford was reacting to an emergency situation. See id. (burden is on

plaintiff to produce sufficient evidence to raise a fact issue concerning whether

government employee was responding to an emergency); see also Kamel v. Univ. of

Tex. Health Sci. Ctr., 333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2010,

pet. denied) (if relevant evidence is undisputed or fails to raise a fact question on

jurisdictional issue, trial court rules on the plea as a matter of law).

However, the emergency exception applies only if the employee’s 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). The evidence showed that Crawford acted in accordance

with his training for such situations and, contrary to Wagner’s assertions, does not

reflect that Crawford acted with conscious indifference or reckless disregard for the

safety of others.

The terms “conscious indifference” and “reckless disregard” are not defined,

and therefore we give them their ordinary meaning. TEX. GOV’T CODE ANN. §

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312.002; Hartman, 201 S.W.3d at 672 n.19; City of Pasadena v. Kuhn, 260 S.W.3d

93, 99 (Tex. App.—Houston [1st Dist.] 2008, no pet.); Pakdimounivong, 219 S.W.3d

at 410–11. The Texas Supreme Court has said that these terms “require proof that a

party knew the relevant facts but did not care about the result.” Kuhn, 260 S.W.3d

at 99 (quoting Hartman, 201 S.W.3d at 672 n.19). Indulging every reasonable

inference in Wagner’s favor, no evidence shows that Crawford did not care what

happened to Wagner. See Pakdimounivong, 219 S.W.3d at 410–12 (officers’ actions

were not taken with conscious indifference or reckless disregard for safety of

deceased when no evidence showed that officers did not care what happened to

deceased). See also City of Houston v Davis, No.01-13-00600, 2014 WL 1678907

*7 (Tex. App—Houston (1st Dist.) April 24, 2014, pet. denied) (no evidence that

officer did not care what happened to Davis, when the officer left his patrol car door

open during a traffic stop and his K-9 bit Davis).

The “reckless disregard” test “requires a showing of more than a momentary

judgment lapse.” Kuhn, 260 S.W.3d at 99 (quoting City of Amarillo v. Martin, 971

S.W.2d 426, 429–30 (Tex. 1998)). To establish recklessness in this context, the

employee must have committed an act that he knew or should have known posed a

high degree of risk of serious injury. Id.; Green v. Alford, 274 S.W.3d 5, 22–23

(Tex. App.—Houston [14th Dist.] 2008, pet. denied).

Here, I would conclude the evidence fails to raise a fact issue regarding

whether Crawford acted with conscious indifference or reckless disregard in his

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deployment and use of the K-9. The evidence shows that Crawford’s use of the K-

9 was in keeping with his training, and he did not expect or intend Kozmo to lunge

at Wagner or for Wagner to sustain an injury from any act of his or Kozmo’s. The

record reflects Crawford’s belief that he had allowed enough clearance to safely pass

and that Wagner and the officer’s loud verbal dialogue and movement as they passed

re-directed Kozmo’s attention. Crawford admitted “the conditions and distance are

things I should have anticipated and accounted for.” If anything, this last statement

reflects “a momentary judgment lapse” and does not raise a fact issue that Crawford

knew or should have known that his handling of Kozmo posed a high degree of risk

of serious injury to Wagner or that Crawford did not care what happened to Wagner.

See Kuhn, 260 S.W.3d at 99.

Based upon the foregoing, I would reverse the trial court’s order denying the

City’s plea to the jurisdiction and render judgment granting the City’s plea to the

jurisdiction and dismissing Wagner’s claims against the City with prejudice.

/Bonnie Lee Goldstein/

BONNIE LEE GOLDSTEIN

JUSTICE

220826DF.P05

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