City of Houston v. Crystal Green ( 2023 )

Supreme Court of Texas
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No. 22-0295
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City of Houston,
Petitioner,
v.
Crystal Green,
Respondent
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On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
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PER CURIAM
This case arises from a motor-vehicle accident involving a
municipal police officer who was responding to an emergency call. The
primary issue is whether the record contains evidence that the officer
was driving “with reckless disregard for the safety of others” at the time
of the accident. We conclude it does not. Because the officer was
responding to an emergency and was not driving with reckless
disregard, the Texas Tort Claims Act does not waive the City’s
governmental immunity. We therefore reverse the court of appeals’
judgment and render judgment dismissing the claims against the City.
Samuel Omesa is a City of Houston police officer. Around 3:00
a.m. on March 18, 2017, he received a “priority two”1 service call
regarding a suspect armed with a handgun and a screwdriver. Omesa
had assisted another unit at the same location with the same suspect
earlier in his shift. Omesa testified that, after receiving the second call,
he activated his emergency overhead lights and drove northbound on
Hillcroft Avenue, averaging 35 to 40 miles per hour, “intermittently”
activating his audible siren. He claimed that he came to a complete stop
and looked both ways before proceeding at each intersection he crossed.
As Omesa approached the intersection at Richmond Avenue, the
traffic light was red. He claims that he came to a complete stop and
observed all traffic also completely stop before proceeding through the
red light into the intersection. After safely crossing the first few lanes
of the intersection, and while traveling around 10 to 20 miles per hour,
Omesa collided with a vehicle driven by Crystal Green, in which
Michelle Cummings was a passenger. Omesa stated that even though
he forcefully applied his brakes, he was unable to avoid the collision.
Omesa claimed that Green’s car was traveling very fast, appeared from
behind other vehicles that had stopped, and did not have its headlights
on. While Omesa is certain his emergency lights were turned on at the
1A priority-two call is considered an emergency call. Omesa testified
that it represents “in-progress property crimes and/or potential threat to
human welfare[] and assume[s] that if not in progress, the event recently
occurred, or response to the scene is urgent.” The standard response is without
emergency equipment, but officers have discretion to use emergency
equipment if the situation warrants it.
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time of the accident, he could not specifically remember if he activated
his siren before proceeding through the intersection.
Contradicting Omesa’s testimony, Green and Cummings testified
that Omesa was “traveling at a high rate of speed” and “very fast” as he
went through the intersection. Green testified that Omesa’s audible
siren was not on. Green’s expert witness testified that Omesa caused
the accident by failing to use due care, driving negligently, and failing
to take evasive action.
Green sued the City of Houston, seeking to hold it vicariously
liable for Omesa’s negligence and independently liable for negligently
hiring, training, and supervising Omesa. The City moved for summary
judgment, arguing that the Texas Tort Claims Act does not waive the
City’s governmental immunity because the Act’s emergency exception
applies. The trial court denied the motion, and the court of appeals
affirmed, holding that the evidence creates a fact issue as to whether
Omesa was driving with reckless disregard for the safety of others. ___
S.W.3d ___, 2022 WL 97334, at *9 (Tex. App.—Houston [14th Dist.] Jan.
11, 2022). We disagree.
Governmental immunity generally bars tort claims against
municipalities when the claim arises from the city’s governmental
functions. See City of League City v. Jimmy Changas, Inc., No. 21-0307,
2023 WL 3909986, at *2 (Tex. June 9, 2023). The Tort Claims Act,
however, waives immunity for claims arising from a city employee’s
operation or use of a motor-driven vehicle if the “employee would be
personally liable to the claimant according to Texas law.” TEX. CIV.
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PRAC. & REM. CODE § 101.021(1).2 But this waiver does not apply if the
employee was responding to an emergency, complied with applicable
laws, and—in the absence of applicable laws—did not act with conscious
indifference or reckless disregard for the safety of others:
This chapter does not apply to a claim arising . . . 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.
Id. § 101.055(2); see also City of San Antonio v. Maspero, 640 S.W.3d
523, 529 (Tex. 2022).
Green does not dispute that Omesa was responding to an
emergency when this accident occurred, but she contends he violated
Section 546.005 of the Texas Transportation Code and acted with
reckless disregard for the safety of others. Because Section 546.005
requires “appropriate regard”—and prohibits “reckless disregard”—for
the safety of others,3 Green’s argument “largely collapses” into a single
2As an alternative to its reliance on the Act’s emergency exception, the
City also argued that the motor-driven vehicle waiver does not apply here
because official immunity prevents Omesa from being personally liable to
Green. The court of appeals concluded that fact issues preclude summary
judgment on that issue as well. Because we conclude the emergency exception
applies and prevents the waiver, we need not address the official-immunity
issue.
3 Chapter 546 generally authorizes operators of emergency vehicles to
disregard traffic laws, including traffic lights and speed limits, when
responding to an emergency call. See TEX. TRANSP. CODE §§ 546.001, .002.
Under Section 546.005, however, they must still “operate the vehicle with
appropriate regard for the safety of all persons” and may not operate it with
“reckless disregard for the safety of others.” Id. § 546.005.
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inquiry of whether Omesa acted recklessly. See Maspero, 640 S.W.3d at
529.
As we explained last term in Maspero, driving with “reckless
disregard” involves more than a “momentary judgment lapse.” Id. at
531. It requires a “willful or wanton disregard for the safety of persons
or property,” exhibiting “conscious indifference” while having
“subjective awareness of an extreme risk.” Id. (first quoting TEX.
TRANSP. CODE § 545.401(a); and then quoting Tarrant County v. Bonner,
574 S.W.3d 893, 902 (Tex. 2019)). In other words, to drive with reckless
disregard, the driver must commit “an act he knew or should have
known posed a high degree of risk of serious injury” to others. Id.(quoting Perez v. Webb County, 511 S.W.3d 233, 236 (Tex. App.—San
Antonio 2015, pet. denied)).
The court of appeals issued its decision in this case about a month
before we decided Maspero. Relying on earlier decisions, however, it
similarly described that Omesa drove with reckless disregard if he
“knew the relevant facts” but “did not care what happened to [other]
motorists.” ___ S.W.3d ___, 2022 WL 97334, at *4 (quoting Quested v.
City of Houston, 440 S.W.3d 275, 285 (Tex. App.—Houston [14th Dist.]
2014, no pet.) (in turn quoting City of San Antonio v. Hartman, 201
S.W.3d 667, 672 & n.19 (Tex. 2006))). The court concluded that a fact
issue exists as to recklessness “because the evidence supports an
inference that Omesa entered the intersection without stopping[4] and
In the court’s view, Cummings’s testimony that Omesa was “traveling
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at a high rate of speed” supports an inference that he did not come to a stop
before entering the intersection. ___ S.W.3d ___, 2022 WL 97334, at *5-6.
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without his sirens on, despite knowing that he had a red light, it was
dark, that his view of the traffic was partially obstructed, and that a
collision with another vehicle that could cause serious injury was
possible.” Id. at *6.
Considering all the uncontroverted evidence while accepting all
disputed facts in Green’s favor, this record cannot support a finding that
Omesa acted with reckless disregard for the safety of others. Green
provided no evidence to contradict that Omesa was responding to a
priority-two emergency call involving an armed suspect, that he
activated his overhead emergency lights, that he averaged 35 to 40 miles
per hour, that he at least slowed his speed (if not stopped) before
proceeding through each intersection, that he intermittently activated
his audible siren, that other vehicles noticed him and stopped as he
proceeded across Richmond Avenue, that those vehicles blocked his view
of the lane Green was in, and that Green was traveling in the dark
without her headlights on.
Although Green and Cummings testified that Omesa was
traveling “very fast” or at “a high rate of speed,” those descriptions lack
specificity and no evidence establishes the type of high-speed travel that,
by itself, could support a finding of reckless disregard. Nor does the fact
that Omesa proceeded against a red light, which Texas law expressly
permitted him to do “after slowing as necessary for safe operation.” TEX.
TRANSP. CODE § 546.001(2). And assuming as we must that he failed to
activate his siren before entering the intersection, department policy
placed that decision within his discretion.
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Certainly, Green’s evidence could support a finding that Omesa
suffered a momentary lapse of judgment when he failed to activate his
siren and proceeded across Richmond Avenue without coming to a
complete stop. Indeed, Omesa himself conceded in his deposition that
he failed to exercise due care at that point. But establishing a failure to
exercise due care does not establish a reckless disregard for the safety
of others. Nothing in this record could support a finding that Omesa
knew he was creating a risk of serious injury and did not care what
might happen to other motorists.
Because Green concedes that Omesa was responding to an
emergency and because no evidence could support a finding that he
acted with reckless disregard for the safety of others, the emergency
exception applies, and the Tort Claims Act does not waive the City’s
governmental immunity. We grant the City’s petition for review and,
without hearing oral argument pursuant to Texas Rule of Appellate
Procedure 59.1, reverse the court of appeals’ judgment and render
judgment dismissing Green’s claims against the City.
OPINION DELIVERED: June 30, 2023
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