Galveston County Health District v. Erica Hanley ( 2014 )


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  • Opinion issued December 4, 2014
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-14-00166-CV
    ———————————
    GALVESTON COUNTY HEALTH DISTRICT, Appellant
    V.
    ERICA HANLEY, Appellee
    On Appeal from the 56th District Court
    Galveston County, Texas
    Trial Court Case No. 12-CV-2314
    MEMORANDUM OPINION
    This is an interlocutory appeal from the trial court’s denial of the Galveston
    County Health District’s plea to the jurisdiction. Appellee Erica Hanley was
    injured when the automobile she was driving collided with the District’s
    ambulance. The District argues that the trial court erred in denying the plea to the
    jurisdiction because it is immune from suit under both the “emergency exception”
    to the Tort Claims Act and the doctrine of official immunity. Because there is a
    question of fact related to the emergency exception, and the District failed to prove
    that official immunity applies, we affirm.
    Background
    This case arises from an automobile accident. A Galveston County Health
    District ambulance responding to a call entered an intersection against a red light.
    Prior to entering the intersection, the ambulance driver’s line of sight was
    obstructed by cars, a building, and bushes, and he could not see if there was
    oncoming traffic. According to the driver, he slowed from 30 miles per hour to less
    than 10 miles per hour and entered the intersection. Once in the intersection, the
    driver and his passenger spotted Hanley’s car and swerved to avoid it, but the car
    hit the ambulance’s right rear wheel well.
    Hanley sued. She alleged that the ambulance ran a red light while speeding,
    without using lights or sirens. She contended that the ambulance was not in the
    process of responding to an emergency. She also alleged that the ambulance driver
    was negligent or, in the alternative, acting with conscious indifference or reckless
    disregard for the safety of others.
    2
    The District filed a plea to the jurisdiction and attached evidence showing
    that the ambulance was responding to an emergency call, used its emergency lights
    and siren, and did not speed through the intersection, but proceeded through slowly
    with regard for other motorists. Hanley responded with evidence that the
    ambulance entered the intersection against a red light despite the driver’s
    knowledge of the limited visibility there. She also provided her own deposition
    testimony that although the emergency lights were on, she did not believe the siren
    was on, and she did not hear it or recall hearing it. She further testified to her belief
    that the ambulance did not stop or slow before entering the intersection.
    The trial court denied the plea to the jurisdiction, and the District filed this
    interlocutory appeal.
    Analysis
    In two issues, the District argues that it is entitled to governmental
    immunity, both under the emergency exception to the Tort Claims Act and by
    virtue of the ambulance driver’s official immunity.
    A plea to the jurisdiction based on governmental immunity challenges a trial
    court’s subject-matter jurisdiction. State v. Holland, 
    221 S.W.3d 639
    , 642 (Tex.
    2007); Tex. Dep’t of Parks & Wildlife v. Miranda, 
    133 S.W.3d 217
    , 225–26 (Tex.
    2004). An appeal may be taken from an interlocutory order granting or denying a
    plea to the jurisdiction filed by a governmental unit. TEX. CIV. PRAC. & REM. CODE
    3
    § 51.014(a)(8). We review de novo the trial court’s ruling on a plea to the
    jurisdiction. City of Houston v. Rhule, 
    417 S.W.3d 440
    , 442 (Tex. 2013) (per
    curiam).
    The plaintiff must allege facts that affirmatively establish the trial court’s
    subject matter jurisdiction. 
    Holland, 221 S.W.3d at 642
    . In determining whether
    the plaintiff has satisfied this burden, we construe the pleadings liberally in the
    plaintiff’s favor and deny the plea if facts affirmatively demonstrating jurisdiction
    have been alleged. 
    Id. at 643;
    Miranda, 133 S.W.3d at 227
    ; Smith v. Galveston
    Cnty., 
    326 S.W.3d 695
    , 697–98 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
    When a defendant challenges the existence of jurisdictional facts in a plea to
    the jurisdiction, the trial court must consider relevant evidence submitted by the
    parties. City of Waco v. Kirwan, 
    298 S.W.3d 618
    , 622 (Tex. 2009); 
    Miranda, 133 S.W.3d at 227
    . Because the standard of review on appeal “generally mirrors that of
    a summary judgment,” in reviewing the evidence presented, we take as true all
    evidence favorable to the nonmovant and indulge reasonable inferences and
    resolve doubts in her favor. 
    Miranda, 133 S.W.3d at 228
    . When the relevant
    evidence is undisputed or fails to raise a fact question on the jurisdictional issue,
    the trial court rules on the plea to the jurisdiction as a matter of law. 
    Id. at 228.
    If,
    however, the evidence creates a fact question regarding jurisdiction, then the trial
    4
    court must deny the plea, and the fact issue will be resolved by the factfinder. Id at
    227–28.
    I.    Governmental immunity and the emergency exception
    The doctrine of governmental immunity, like sovereign immunity from
    which it is derived, protects political subdivisions of the state from lawsuits unless
    the Legislature has specifically waived this immunity. See City of Houston v.
    Williams, 
    353 S.W.3d 128
    , 134 (Tex. 2011). The Tort Claims Act, which provides
    a limited waiver of immunity, applies equally to the State and its political
    subdivisions. Mission Consol. Indep. Sch. Dist. v. Garcia, 
    253 S.W.3d 653
    , 655
    (Tex. 2008); see TEX. CIV. PRAC. & REM. CODE §§ 101.001–.109. Section 101.021
    of the Act provides:
    A governmental unit in the state is liable for:
    (1)    property damage, personal injury, and death proximately caused
    by the wrongful act or omission or the negligence of an
    employee acting within his scope of employment if:
    (A)   the property damage, personal injury, or death arises
    from the operation or use of a motor-driven vehicle or
    motor-driven equipment; and
    (B)   the employee would be personally liable to the claimant
    according to Texas law; and
    (2)    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.
    5
    TEX. CIV. PRAC. & REM. CODE § 101.021. However, the Act also provides for
    exceptions to the waiver of immunity. See 
    id. §§ 101.051–.067.
    For example, the
    “emergency exception” provides that immunity is not waived when the employee’s
    act was in response to an emergency call and in compliance with law or—in the
    absence of applicable laws—not done with “conscious indifference or reckless
    disregard for the safety of others.” 
    Id. § 101.055(2);
    City of San Antonio v.
    Hartman, 
    201 S.W.3d 667
    , 672 (Tex. 2006).
    As relevant to this case, the “emergency exception” to the waiver of
    immunity requires proof that the employee’s act was in response to an emergency
    call and in compliance with relevant law. See TEX. CIV. PRAC. & REM. CODE
    § 101.055(2); 
    Hartman, 201 S.W.3d at 671
    –72. Hanley’s petition alleged that the
    ambulance was not responding to an emergency, was not using its emergency
    lights or siren, entered an intersection against a red light in violation of law, and
    that the ambulance driver failed to comply with several provisions of the
    Transportation Code. Based on these factors, she argues on appeal, as she did in
    the trial court, that the ambulance driver acted recklessly and with conscious
    disregard for the safety of others in violation of the Texas Transportation Code.
    She therefore argues that the emergency exception does not apply in this case.
    In its plea to the jurisdiction, the District argued that the ambulance was
    responding to an emergency and was authorized by statute to proceed into the
    6
    intersection against a red light. It also argued that the Transportation Code
    authorized the ambulance driver to enter the intersection against the red light after
    slowing as needed for safe operation, and that, as a matter of law, Hanley could not
    establish that the ambulance driver was reckless. The District attached the
    following evidence to its plea: (1) the affidavit of Amy Weber, who supervised the
    ambulance driver; (2) the affidavit of Tyler Stenzel, who was the passenger in
    ambulance at the time of the accident; (3) the deposition and affidavit of Nathan
    Kohn, the ambulance driver; and (4) the affidavit of Herbert George Frankovich,
    the EMS Director for the District.
    As to the first prong of the emergency exception—that the employee’s
    action was in response to an emergency call—Weber, Stenzel, Kohn, and
    Frankovich all testified or averred that the ambulance was responding to an
    emergency call for help pertaining to an unconscious and nonresponsive woman.
    Hanley offered no evidence to controvert the proof that the ambulance was
    responding to an emergency call. Therefore, the evidence is conclusive that the
    ambulance was responding to an emergency call. See, e.g., 
    Hartman, 201 S.W.3d at 672
    .
    However, the applicability of the emergency exception requires more than a
    mere showing that the governmental employee was responding to an emergency
    call. For the “emergency exception” to apply, there must be proof that the
    7
    employee’s action in responding to an emergency call was “in compliance with the
    laws and ordinances applicable to emergency action, or in the absence of such a
    law or ordinance . . . the action [was] not taken with conscious indifference or
    reckless disregard for the safety of others.” TEX. CIV. PRAC. & REM. CODE
    § 101.055(2).
    Several provisions of Chapter 546 of the Texas Transportation Code inform
    our analysis. Sections 546.001 and 546.002 provide that when the driver of an
    authorized emergency vehicle is responding to an emergency call, he may take
    certain actions that would otherwise violate the law, including proceeding “past a
    red or stop signal . . . after slowing as necessary for safe operation,” and exceeding
    “a maximum speed limit . . . as long as the operator does not endanger life or
    property.” TEX. TRANSP. CODE §§ 546.001, 546.002. However, section 546.003
    provides that when engaging in such conduct, the operator of the authorized
    emergency vehicle “shall use, at the discretion of the operator in accordance with
    policies of the department or the local government that employs the operator,
    audible or visual signals that meet the pertinent requirements of Sections 547.305
    and 547.702.” 
    Id. § 546.003
    (emphasis supplied). Pertinent to this case, section
    547.702 requires “the operator of an authorized emergency vehicle” to use “the
    siren, whistle, or bell when necessary to warn other vehicle operators or
    pedestrians of the approach of the emergency vehicle.” 
    Id. § 547.702.
    8
    The District argues that because section 546.003 requires the use of “audible
    or visual signals” “at the discretion of the operator,” it does not require that both
    audible and visual signals be used. See 
    id. § 546.003.
    But section 546.003 also
    incorporates a requirement that the operator act “in accordance with policies of the
    department or the local government that employs” him. See 
    id. The District’s
    evidence included an affidavit from its EMS Director Trey Frankovich. He stated
    that several pages of the District’s Emergency Medical Services manual were
    attached to the affidavit. Those pages do not appear in the appellate record, but
    Frankovich’s affidavit itself provides some evidence about the Department’s
    policies regarding the use of lights and sirens. Frankovich averred:
    Page 19 of the Manual (Exhibit “B”) addresses the District’s code
    system. Galveston EMS does not use “10 codes.” Under the District’s
    code system Code 1 is no lights or siren. Both District Codes 2 and
    Code 3 use lights and siren. Code 3 is used when CPR is in progress.
    However, responses, speed, and driving practices are no different
    under Codes 2 and 3.
    ....
    By Dispatch policies, lights and sirens were authorized here.
    (Emphasis supplied.)
    Frankovich’s affidavit states that Codes 2 and 3 use both lights and siren.
    Although he does not state that lights and siren were both required here, his
    description of the practices for Codes 2 and 3 and his statement that lights and
    sirens were authorized gives rise to a reasonable inference that the District’s
    9
    policies required both lights and sirens. The District’s arguments on appeal and in
    the plea to the jurisdiction take as true that the siren was used at the time of the
    accident, and this proposition finds ample support in the District’s evidence.
    But in this procedural setting we are required to take as true all evidence
    favorable to Hanley and indulge reasonable inferences in her favor. See 
    Miranda, 133 S.W.3d at 228
    . Hanley contends that her deposition testimony refuted the
    District’s evidence regarding the use of a siren and created a question of fact. She
    testified that she did “not remember hearing a siren” and that she “believe[d] the
    sirens were not on.” When the District’s counsel attempted to clarify her
    testimony, she said that she did not hear a siren:
    Q.     Okay. So what you’re saying is the ambulance did not have its
    sirens on?
    A.     I do not remember hearing a siren.
    Q.     Well, that’s different than saying it didn’t have it on. Are you
    saying you don’t recall having heard it or are you saying you
    don’t recall it having it on, period?
    [Hanley’s attorney]:       Objection, form.
    A.     I cannot say for certain, because I did not drive the ambulance.
    But I did not hear sirens.
    The parties dispute whether this testimony was sufficient to raise a question of fact.
    In Rankin v. Union Pacific Railroad Co., 
    319 S.W.3d 58
    (Tex. App.—San
    Antonio 2010, no pet.), a surviving husband sued a railroad after his wife died
    10
    from injuries sustained when a train hit her truck at a railroad 
    crossing. 319 S.W.3d at 61
    . Among other things, he alleged that the railroad failed to provide an audible
    warning of the approaching train. 
    Id. In response
    to a no-evidence motion for
    summary judgment on this issue, he provided an affidavit from a witness who
    averred, “I do not remember hearing the train blow its horn before it hit the truck.”
    
    Id. at 65.
    The court of appeals held that this testimony was no evidence of failure
    to warn because the “fact that a witness does not remember hearing the whistle or
    horn sounding is not probative evidence of any failure to sound the train’s whistle
    or horn.” 
    Id. Rather, the
    San Antonio court stated that to be probative there must be
    some evidence that a witness “was in a position to hear the audible engine signals,
    or that he would have heard the whistle or horn if it had been sounded, or that the
    whistle or horn was not sounded.” 
    Id. Such was
    the situation in Green v. Alford, 
    274 S.W.3d 5
    (Tex. App.—
    Houston [14th Dist.] 2008, pet. ref’d), an appeal after a jury trial in which the
    question was whether the driver of a fire engine was entitled to official immunity
    in a suit arising from an automobile collision. In Green, the firefighter-driver
    argued that the evidence was insufficient to show that he behaved recklessly by
    failing to use a siren. 
    Id. at 27–28.
    Several witnesses had testified that the sirens
    were on, and five witnesses had testified that they did not hear a siren. 
    Id. The 11
    court of appeals concluded that the evidence that the witnesses did not hear the
    siren was “some evidence that there was no siren to be heard.” 
    Id. at 28.
    In this case, Hanley testified that she “believed” the sirens were not on, that
    she “did not remember hearing a siren,” and that she “did not hear a siren.”
    Standing alone, her subjective belief and failure to recall hearing a siren would not
    raise a genuine issue of fact on this matter. Texas Div.-Tranter, Inc. v. Carroza,
    
    876 S.W.2d 312
    , 314 (Tex. 1994); 
    Rankin, 319 S.W.3d at 65
    . But because we must
    resolve doubts in Hanley’s favor, see 
    Miranda, 133 S.W.3d at 228
    , we conclude
    that her affirmative statement that she “did not hear sirens” was some evidence that
    there was no siren to be heard. See 
    Green, 274 S.W.3d at 28
    ; cf. Randall v. Dallas
    Power & Light Co., 
    752 S.W.2d 4
    , 5 (Tex. 1988) (“if conflicting inferences may be
    drawn from a deposition and from an affidavit filed by the same party in
    opposition to a motion for summary judgment, a fact issue is presented”).
    The District also argues that it retained governmental immunity under the
    emergency exception because its driver’s actions were not taken with conscious
    indifference or reckless disregard for the safety of others. Section 101.055 provides
    that “in the absence of” a governing law or ordinance, immunity is not waived “if
    the governmental employee’s action is not taken with conscious indifference or
    reckless disregard for the safety of others.” TEX. CIV. PRAC. & REM. CODE
    § 101.055(2). Because the “conscious indifference and reckless disregard”
    12
    provision applies only in the absence of governing laws and because we have
    identified laws applicable to the situation presented by this appeal, we do not
    consider whether Kohn was acting with conscious indifference or reckless
    disregard. See 
    id. Together with
    the inference that the District’s policy required the use of both
    lights and siren, the evidence presents a question of fact as to whether Kohn’s
    actions complied with the laws and ordinances applicable to emergency action. See
    
    id. Because the
    evidence presented a question of fact regarding jurisdiction, the
    trial court was required to deny the plea to the extent it was based on the
    emergency exception. See 
    Miranda, 133 S.W.3d at 227
    –28. We hold that the trial
    court properly denied the District’s plea to the jurisdiction on the grounds of the
    emergency exception.
    II.   Official immunity
    The District also argues that the trial court erred by denying its plea to the
    jurisdiction because the doctrine of official immunity applies to the ambulance
    driver. When a governmental unit’s liability is based on respondeat superior and
    the employee would be entitled to official immunity, the doctrine of official
    immunity operates as an exception to the Tort Claims Act’s waiver of immunity.
    See TEX. CIV. PRAC. & REM. CODE § 101.021; DeWitt v. Harris Cnty., 
    904 S.W.2d 650
    , 653–54 (Tex. 1995).
    13
    Hanley argues, in part, that this issue is waived because the District raises
    arguments on appeal that were not presented to the trial court in support of its plea
    to the jurisdiction. However, the Supreme Court has held that immunity from suit
    implicates subject-matter jurisdiction and may be raised for the first time on
    appeal. See Rusk State Hosp. v. Black, 
    392 S.W.3d 88
    , 95 (Tex. 2012). In addition,
    the District’s second amended plea to the jurisdiction did argue that immunity was
    retained under the doctrine of official immunity. Therefore, we consider the merits
    of the District’s official immunity argument. See 
    id. “Official immunity
    is based on sound public policy that encourages public
    officers to perform their discretionary duties without fear of personal liability for
    negligent or improper performance.” Ramos v. Tex. Dep’t of Pub. Safety, 
    35 S.W.3d 723
    , 726 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). “If the
    employee is protected from liability by official immunity, the employee is not
    personally liable to the claimant . . . .” 
    DeWitt, 904 S.W.2d at 653
    . Under the Tort
    Claims Act, a governmental unit may only be liable to a claimant when “the
    [negligent] employee would be personally liable to the claimant.” TEX. CIV. PRAC.
    & REM. CODE § 101.021(1)(B). Therefore when an employee is entitled to official
    immunity, the government retains its sovereign immunity as well. See 
    DeWitt, 904 S.W.2d at 653
    .
    14
    “A governmental employee is entitled to official immunity: (1) for the
    performance of discretionary duties; (2) within the scope of the employee’s
    authority; (3) provided the employee acts in good faith.” Univ. of Houston v. Clark,
    
    38 S.W.3d 578
    , 580 (Tex. 2000). Official immunity is an affirmative defense.
    Wadewitz v. Montgomery, 
    951 S.W.2d 464
    , 465 (Tex. 1997); City of Lancaster v.
    Chambers, 
    883 S.W.2d 650
    , 653 (Tex. 1994). Therefore, the defendant bears the
    burden of establishing all the elements of official immunity. 
    Chambers, 883 S.W.2d at 653
    . If it does, then the burden shifts to the plaintiff to rebut the
    evidence with proof of the defendant’s bad faith. Tex. Dep’t of Pub. Safety v.
    Rodriguez, 
    344 S.W.3d 483
    , 488–89 (Tex. App.—Houston [1st Dist.] 2011, no
    pet.). But if “the government official does not prove each element of official
    immunity, the burden never shifts to the plaintiff to come forward with
    controverting evidence.” 
    Id. The first
    prong asks whether the employee was performing discretionary
    duties. See 
    Clark, 38 S.W.3d at 580
    . “Actions that involve personal deliberation,
    decision, and judgment are discretionary; actions that require obedience to orders
    or the performance of a duty to which the actor has no choice, are ministerial.”
    Junemann v. Harris Cnty., 
    84 S.W.3d 689
    , 693 (Tex. App.—Houston [1st Dist.]
    2002, pet. denied) (citing 
    Chambers, 883 S.W.2d at 653
    ). Operation of an
    ambulance in response to an emergency situation has been held to be a
    15
    discretionary function as a matter of law. See City of Houston v. Flaniken, 
    108 S.W.3d 555
    , 557 (Tex. App.—Houston [14th Dist.] 2003, no pet.); Rivas v. City of
    Houston, 
    17 S.W.3d 23
    , 29 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
    Similarly, this court has held that a police officer was performing a discretionary
    act when driving a patrol car and responding to an emergency situation because he
    “relied on his professional experience and expertise in judging the traffic, weather
    conditions, and alternative routes to determine the safest and most expedient way
    to reach his destination.” City of Houston v. Hatton, No. 01-11-01068-CV, 
    2012 WL 3528003
    , at *3 (Tex. App.—Houston [1st Dist.] Aug. 16, 2012, pet. denied)
    (mem. op.).
    The second prong asks whether the employee’s actions were within the
    scope of his authority. See 
    Clark, 38 S.W.3d at 580
    . “An official acts within the
    scope of his authority if he is discharging the duties generally assigned to him.”
    
    Junemann, 84 S.W.3d at 693
    . In his affidavit, Kohn averred that he was trained in
    both emergency medical service and in the operation of an emergency vehicle. He
    stated that he and his passenger were dispatched in response to a call about an
    unconscious and nonresponsive woman and that he drove the ambulance. This
    evidence was not controverted by Hanley and is conclusive proof that Kohn was
    acting within the scope of his authority. In addition, in our discussion of the
    emergency exception, we explained that the evidence was conclusive that Kohn
    16
    was responding to an emergency call at the time of the accident. Because Kohn
    was operating an ambulance in response to an emergency situation, we conclude
    that he was engaging in a discretionary function. See Hatton, 
    2012 WL 3528003
    , at
    *3; 
    Flaniken, 108 S.W.3d at 557
    ; 
    Rivas, 17 S.W.3d at 29
    . We hold that the first
    two prongs of the test for official immunity are satisfied.
    The third prong of the official immunity test asks whether the employee was
    acting in good faith. See 
    Clark, 38 S.W.3d at 580
    . “The final prong of official
    immunity requires the government official to demonstrate that his acts were within
    the realm of what a reasonably prudent government official could have believed
    was appropriate at the time in question.” 
    Junemann, 84 S.W.3d at 693
    ; accord
    
    Rodriguez, 344 S.W.3d at 491
    . “The standard of good faith as an element of
    official immunity is not a test of carelessness or negligence, or a measure of an
    official’s motivation.” Ballantyne v. Champion Builders, Inc., 
    144 S.W.3d 417
    ,
    426 (Tex. 2004) (citing 
    Wadewitz, 951 S.W.2d at 467
    n.1). This test of good faith
    does not inquire into “what a reasonable person would have done,” but into “what a
    reasonable [person] could have believed.” 
    Id. Good faith
    balances the need to which the governmental employee was
    responding with the risks of his course of action, based on his perception of the
    facts at the time of the event. See 
    Wadewitz, 951 S.W.2d at 467
    ; Hatton, 
    2012 WL 3528003
    , at *4. In assessing the need prong of this balancing test, we consider the
    17
    seriousness of the accident to which the employee was responding, whether his
    immediate presence was necessary to prevent injury or loss of life, and what
    alternative courses of action, if any, were available to achieve a comparable result.
    See 
    Wadewitz, 951 S.W.2d at 467
    . In assessing the risk prong of this balancing test,
    we consider the nature and severity of harm that the employee’s actions could
    cause (including possible harm to bystanders and the possibility that an accident
    would prevent the employee from reaching the scene of the accident), the
    likelihood that any harm would occur, and whether any risk of harm would be clear
    to a reasonably prudent employee. 
    Id. The evidence
    conclusively established that the ambulance was responding to
    an emergency situation. The District’s evidence shows that the employees were
    responding to a serious need and their presence was immediately necessary. With
    respect to risks, in his affidavit Kohn expressly stated that he “proceeded in good
    faith, attempting . . . to give due regard to safety [while] . . . weighing the risks of
    any extra speed or of going through traffic control devices against undue delay in
    getting to . . . the woman we were dispatched to help.” He specifically
    acknowledged the potential risk that involvement in an accident could delay
    getting care to the unconscious woman. He averred, “I was aware of the danger in
    entering an intersection against a light, and attempted to make sure the intersection
    was clear as the ambulance began to enter the intersection.” He said that he saw no
    18
    cars approaching on the cross-street until he entered the intersection. He also stated
    that Hanley’s car did not appear to be stopping or slowing “despite the operating
    overhead lights and siren.”
    Like Kohn’s affidavit, other evidence provided by the District presumed the
    use of both overhead lights and siren. For example, in his affidavit, EMS Director
    Frankovich averred:
    There is an added danger in going through an intersection against a
    red light. The emergency lights and siren of the ambulance, and the
    obligation of other drivers to yield to an emergency vehicle, are tools
    available to the ambulance driver.
    ....
    There is nothing reflected in [the attached exhibits] suggesting that
    Nathan Kohn acted with conscious indifference or reckless disregard
    of the safety of others at the time of the accident in question. . . .
    The lights and siren appear to have been used as required. These
    efforts are consistent with due regard for the safety of others.
    Under the District’s version of the facts—including the use of the emergency
    siren—the risk of harm to the public may have been justified by the need to
    respond to the emergency. But as we have explained, because our standard of
    review requires us to take as true all evidence favorable to Hanley and indulge
    reasonable inferences in her favor, for the purposes of the good-faith element of
    the official immunity test, we cannot presume that the siren was engaged at the
    time of the accident. See 
    Rodriguez, 344 S.W.3d at 497
    . Instead we must take as
    19
    true Hanley’s statement that she “did not hear sirens” and the resulting reasonable
    inference that there was no siren to be heard. Rather than determine whether a
    reasonably prudent ambulance driver could have believed that it was appropriate
    for an ambulance responding to an emergency to enter an intersection against a red
    light while using lights and a siren, we must determine whether a reasonably
    prudent ambulance driver could have believed that it was appropriate to do so
    when his visibility at the intersection was indisputably obstructed and the siren was
    not engaged.
    A similar situation was presented in City of El Paso v. Higginbotham, 
    993 S.W.2d 819
    (Tex. App.—El Paso 1999, no pet.), an appeal from the trial court’s
    denial of summary judgment on the issue of immunity. While transporting Hobart
    Higginbotham to a hospital, an ambulance collided with another vehicle in an
    intersection. 
    Higginbotham, 993 S.W.2d at 821
    . Higginbotham, his relatives (who
    had followed the ambulance in personal vehicles), and the man whose vehicle
    collided with the ambulance all brought suit for injuries associated with the
    accident. 
    Id. at 821–22.
    In examining the good-faith prong of the official immunity
    test, the court of appeals explained that the summary-judgment evidence presented
    a question of fact as to whether the light was red or green and whether the
    ambulance had its siren on at the time of the collision. 
    Id. at 825.
    Because the
    appeal was “a review from the denial of summary judgment,” the court of appeals
    20
    considered as true the factual assertions that favored the nonmovant. 
    Id. at 825.
    The court of appeals held that that the appellants “produced no evidence which
    supports the conclusion that a reasonably prudent EMT . . . might have believed
    that running a red light without engaging the emergency siren was justified in light
    of a clear risk of harm to the public.” 
    Id. at 826.
    As in Higginbotham, the District produced no evidence in this case which
    supports the conclusion that a reasonably prudent ambulance driver could have
    believed that entering an intersection against a red light with limited visibility as to
    the cross-street and without engaging the emergency siren was justified in light of
    clear risk of harm to the public. As such, we conclude that the District did not
    prove the third element of official immunity. See 
    Clark, 38 S.W.3d at 580
    .
    Therefore, the burden never shifted to Hanley to come forward with controverting
    evidence to rebut the driver’s good faith. See 
    Rodriguez, 344 S.W.3d at 488
    –89.
    Accordingly, we hold that the trial court did not err by denying the plea to the
    jurisdiction as to the District’s claim of official immunity.
    21
    Conclusion
    We overrule both of the District’s issues, and we affirm the order of the trial
    court.
    Michael Massengale
    Justice
    Panel consists of Justices Massengale, Brown, and Huddle.
    22