City of Temple v. Stephan Peterson, Individually and as Representative of the Estate of Hilda Peterson ( 1998 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-97-00739-CV

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City of Temple, Appellant

v.

Stephan Peterson, Individually and as Representative of the Estate

of Hilda Peterson, Deceased, Appellee

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FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT NO. 164,806-C, HONORABLE WILLIAM BLACK, JUDGE PRESIDING

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Stephan Peterson sued the City of Temple in a wrongful-death action based on a provision in the Texas Tort Claims Act relating to "9-1-1 Emergency Service." See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, .062 (West 1997). The district court denied the City's motion for summary judgment, urged on a defense of sovereign immunity. The City appeals on an interlocutory basis. See id. § 51.014(5) (West Supp. 1998). We will affirm the summary-judgment order.

THE CONTROVERSY

In the early morning hours of August 6, 1996, Stephan Peterson's wife Hilda had a severe asthma attack. Peterson's call to the City's 9-1-1 service was answered by dispatcher Ann Brown. Peterson asked Brown to send an ambulance to his residence at 110 West Young. Brown told Peterson that her computer listed his address as 110 East Young, not West Young. Peterson indicated the computer was inaccurate and reiterated that he lived on West Young. He told Brown "we've been through this" before with the City. Peterson then gave Brown detailed directions to his home on West Young and urged her to hurry because the situation was serious. Notwithstanding Peterson's directions, Brown dispatched a fire truck and an ambulance to 110 East Young. This was in fact the wrong address: Peterson lived on West Young. When no ambulance arrived, Peterson called 9-1-1 and again urged Brown to send an ambulance to 110 West Young. His home was close to a fire-department facility, and Young could not understand why the ambulance had not arrived. Brown assured him help was on the way. A few minutes later, Peterson called again, sounding more frantic. He repeated that he lived on West Young and again gave detailed directions to his home. Peterson called a fourth time and informed the dispatcher that his wife had gone into "arrest." Peterson called 9-1-1 five times in a period of ten minutes. When the ambulance finally arrived, Hilda Peterson was dead.

Brown initially dispatched the ambulance to the wrong address. Although Peterson called back repeatedly to say that he lived on West Young, Brown never changed her erroneous instructions to the ambulance personnel. An emergency-medical technician from the ambulance eventually called Brown, uncertain about the address she had given. Rather than informing the technician about the possible mix-up, Brown repeated her instructions to an East Young location. The ambulance continued to search for the Peterson residence on East Young.

As Peterson continued to call 9-1-1, the ambulance eventually arrived at 110 East Young. The ambulance technician discovered it was the wrong address and again called Brown asking for help. Brown falsely told the technician that Peterson told her he lived on East Young; that Peterson had called four times insisting he lived on East Young. She told the technician--in direct contradiction of her statement to Peterson--that her computer showed that Peterson lived on West Young.

The technician immediately told Brown they were going to West Young. When they arrived at the Peterson home, Hilda Peterson was dead.

Peterson filed a wrongful-death action against the City. The City moved for summary judgment, based on a defense of sovereign immunity. The trial court denied the motion. The City appeals.

DISCUSSION AND HOLDINGS

Under the doctrine of sovereign immunity, a governmental unit is not liable for the torts of its officers or agents in the absence of a constitutional or statutory provision creating such liability. State v. Terrell, 588 S.W.2d 784, 785-86 (Tex. 1979). The Texas Tort Claims Act ("TTCA") creates a limited waiver of sovereign immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 1997). For immunity to be waived under the TTCA, the claim must arise under one of three specific areas of liability for which immunity is waived, and the claim must not fall under one of the exceptions from waiver. Alvarado v. City of Brownsville, 865 S.W.2d 148, 155 (Tex. App.--Corpus Christi 1993), rev'd on other grounds, 897 S.W.2d 750 (Tex. 1995).

Peterson's claim arises under section 101.062 of the TTCA, dealing specifically with 9-1-1 telephone service. That section provides as follows:

(b) This chapter applies to a claim against a public agency that arises from an action of an employee of the public agency or a volunteer under direction of the public agency and that involves providing 9-1-1 service or responding to a 9-1-1 emergency call only if the action violates a statute or ordinance applicable to the action.

Tex. Civ. Prac. & Rem. Code Ann. § 101.061 (West 1997) (emphasis added). Thus, governmental immunity is not waived in relation to Brown's actions unless they violated an applicable ordinance. See Fernandez v. City of El Paso, 876 S.W.2d 370, 376 (Tex. App.--El Paso 1993, writ denied). The only question on appeal is whether Brown did not, as a matter of law, violate a City ordinance--the conclusion necessary to sustain the City's motion for summary judgment.

Peterson contends disputed issues of material fact preclude summary judgment on the City's contention that Brown did not, as a matter of law, violate a City ordinance. Section 1-11 of City ordinance 1706, entitled "Standard of care for emergency action," pertains to the case. ⁽¹⁾ Under the ordinance, Brown was authorized to act or not act "to effectively deal with the emergency." Her acts and omissions were "effective" if in any way they might have contributed or "reasonably be thought to" have contributed to preserving life; and Brown's acts and omissions are not within the waiver of sovereign immunity if they amounted to a mere "failure to use ordinary care in [the] emergency." The express purpose of the ordinance is "to assure effective action in emergency situations" by preserving immunity for simple negligence.

To establish its sovereign-immunity defense, the City was obliged to establish that ordinary minds could not differ on the conclusion that Brown's actions and inactions were "effective" in the sense of the ordinance, notwithstanding that the trial court was obliged to take as true any facts contained in the summary-judgment record that are favorable to Peterson's claim, indulging every inference and resolving every doubt in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Bean v. Bluebonnet Sav. Bank, 884 S.W.2d 520, 522 (Tex. App.--Dallas 1994, no writ).

The City's summary-judgment proof showed (1) Brown dispatched the emergency personnel to an address she believed was correct; (2) the personnel eventually arrived at the correct address; and (3) Brown believed her actions were helping preserve Hilda Peterson's life. The City argues that Brown's deposition testimony establishes without contradiction that she thought her directions to the emergency units, initially and thereafter, contributed to preserving Hilda Peterson's life. The City argues further that her acts and omissions cannot be classified as ineffective merely because she should have taken a different course of action.

Peterson's summary-judgment proof showed (1) Brown was unfamiliar with the geography of the City, with the computer system, and the policies and procedures applicable to emergencies such as that reported by Peterson; (2) she received no training on the unfamiliar equipment; (3) she dispatched the emergency personnel to an East Young address; (4) when asked by the emergency technician if the emergency was on West Young, she replied falsely that Peterson had told her East Young; and (5) the emergency personnel arrived at the proper address on West Young because they eventually disregarded Brown's directions.

We do not construe the protective provisions of the ordinance as being dependent upon the actor's unqualified subjective "belief"; instead the protection of the City and its employees must be based upon a reasonable belief that the actor's actions contribute to preserving life. So much is expressly stated in the words of the ordinance and emphatically implied in the city commission's expressed intention to protect itself and its employees only to the extent they exercise ordinary care. Under the review strictures of Mr. Property Management Co., 690 S.W.2d at 548-49, we hold that ordinary minds could differ on whether Brown reasonably thought her actions contributed to preserving Hilda Peterson's life.

We therefore affirm the summary-judgment order of the district court.

John Powers, Justice

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: June 4, 1998

Do Not Publish

1. The ordinance declares as follows:

Sec. 1-11. Standard of care for emergency action

Every [provider of emergency services] is hereby authorized to act or not to act in such a manner to effectively deal with the emergency. Any action or inaction is "effective" if it in any way contributes or can reasonably be thought to contribute to preserving any lives or property. . . . Neither the city nor the employee . . . shall be liable for the failure to use ordinary care in such emergency. It is the intent of the city commission, by passing this ordinance, to assure effective action in emergency situations . . . by protecting [the city and its employees] from nonintentional tort liability to the fullest extent permitted by statutory and constitutional law. This section shall be liberally construed to carry out the intent of the city commission.

ment.

Peterson contends disputed issues of material fact preclude summary judgment on the City's contention that Brown did not, as a matter of law, violate a City ordinance. Section 1-11 of City ordinance 1706, entitled "Standard of care for emergency action," pertains to the case. ⁽¹⁾ Under the ordinance, Brown was authorized to act or not act "to effectively deal with the emergency." Her acts and omissions were "effective" if in any way they might have contributed or "reasonably be thought to" have contributed to preserving life; and Brown's acts and omissions are not within the waiver of sovereign immunity if they amounted to a mere "failure to use ordinary care in [the] emergency." The express purpose of the ordinance is "to assure effective action in emergency situations" by preserving immunity for simple negligence.

To establish its sovereign-immunity defense, the City was obliged to establish that ordinary minds could not differ on the conclusion that Brown's actions and inactions were "effective" in the sense of the ordinance, notwithstanding that the trial court was obliged to take as true any facts contained in the summary-judgment record that are favorable to Peterson's claim, indulging every inference and resolving every doubt in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Bean v. Bluebonnet Sav. Bank, 884 S.W.2d 520, 522 (Tex. App.--Dallas 1994, no writ).

The City's summary-judgment proof showed (1) Brown dispatched the emergency personnel to an address she believed was correct; (2) the personnel eventually arrived at the correct address; and (3) Brown believed her actions were helping preserve Hilda Peterson's life. The City argues that Brown's deposition testimony establishes without contradiction that she thought her directions to the emergency units, initially and thereafter, contributed to preserving Hilda Peterson's life. The City argues further that her acts and omissions cannot be classified as ineffective merely because she should have taken a different course of action.

Peterson's summary-judgment proof showed (1) Brown was unfamiliar with the geography of the City, with the computer system, and the policies and procedures applicable to emergencies such as that reported by Peterson; (2) she received no training on the unfamiliar equipment; (3) she dispatched the emergency personnel to an East Young address; (4) when asked by the emergency technician if the emergency was on West Young, she replied falsely that Peterson had told her East Young; and (5) the emergency personnel arrived at the proper address on West Young because they eventually disregarded Brown's directions.

We do not construe the protective provisions of the ordinance as being dependent upon the actor's unqualified subjective "belief"; instead the protection