Adriana P. Perez v. Webb County ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
CONCURRING OPINION
No. 04-14-00275-CV
Adriana P. PEREZ,
Appellant
v.
WEBB COUNTY,
Appellee
From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2011CVT000305 D2
Honorable Monica Z. Notzon, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Concurring Opinion by: Marialyn Barnard, Justice
Dissenting Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: June 3, 2015
Although I agree we must reverse and remand this matter back to the trial court, I write
separately because I do not believe Perez produced a scintilla of evidence to establish Officer
Yzaguirre acted with conscious indifference or reckless disregard for the safety of others. Rather,
I believe Perez produced some evidence that Officer Yzaguirre was not responding to an
emergency call. Thus, I agree the trial court’s judgment dismissing the case for lack of jurisdiction
should be reversed and the matter remanded to the trial court for further proceedings.
Concurring Opinion 04-14-00275-CV
BACKGROUND
Officer Yzaguirre, a patrol supervisor and field supervisor, was on patrol when he heard a
police dispatch report that a “domestic disturbance” was in progress approximately seven miles
from his location. Although he was not officially dispatched to the scene, Officer Yzaguirre
testified he responded because he knew the officer assigned to the area of the call was busy with
another case and was several miles away from the location of the domestic disturbance. According
to Officer Yzaguirre, domestic disturbance calls are classified as high priority due to the potential
changing nature of domestic situations.
Officer Yzaguirre testified he activated his vehicle’s overhead lights and headed in the
direction of the domestic disturbance. As he approached the intersection of Chihuahua Street and
Bartlett Avenue, the officer stated he used the vehicle’s overhead lights and air horn to alert drivers
to his presence so they could move out of the way. Admittedly, Officer Yzaguirre did not activate
the vehicle’s siren, which emits a constant sound, explaining the siren did not work when he
sounded the air horn. According to the officer, each time he hit the air horn, the siren would shut
off because the vehicle would not permit both the air horn and the siren to emit sounds at the same
time. Thus, because he was constantly using the air horn to get through traffic, the siren was not
emitting any sound. At the hearing, Officer Yzaguirre specifically stated, “It’s called a Code 2. I
was using my air horn faster than my siren was going. So it was constant on the air horn.”
According to Officer Yzaguirre, when he approached the intersection immediately
preceding the Chihuahua/Bartlett intersection, traffic was in the left lane, so he moved to the right
lane, came to a complete stop, and then accelerated in order to pass traffic as he approached the
Chihuahua/Bartlett intersection. The officer testified as he approached the Chihuahua/Bartlett
intersection, he slowed down, looked left and right, and after seeing no vehicles and using his air
horn and “due caution,” proceeded through the intersection. As he was proceeding through the
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intersection, Perez’s blue SUV entered the intersection on the right — on the officer’s blind side
— and he struck the SUV on its rear panel.
Perez sued Webb County, arguing Officer Yzaguirre’s conduct proximately caused her
injuries. Webb County filed a plea to the jurisdiction, asserting it is entitled to governmental
immunity pursuant to the “emergency exception” set forth in the Texas Tort Claims Act (“the
TTCA”). The trial court granted Webb County’s plea to the jurisdiction, dismissing Perez’s suit.
Perez then perfected this appeal.
ANALYSIS
On appeal, Perez asserts the trial court erred in dismissing her suit because the “emergency
exception” in section 101.055(2) of the Texas Tort Claims Act does not apply. See TEX. CIV.
PRAC. & REM. CODE ANN. § 101.055(2) (West 2011). Specifically, Perez claims Officer Yzaguirre
was not on an “emergency call,” and if he was, he did not comply with “laws and ordinances
applicable to emergency action” as required by the emergency exception. See id. Perez also
asserted Officer Yzaguirre’s conduct involved an extreme degree of risk, and he had actual,
subjective awareness of the risk his actions posed, “but he proceeded with conscious indifference
to the rights, safety and welfare of others, including [Perez].” See id.
When, as here, a governmental body raises the “emergency exception,” the plaintiff bears
the burden of establishing the exception does not apply. Quested v. City of Houston, 440 S.W.3d
275, 284 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Tex. Dep’t of Pub. Safety v. Little, 259
S.W.3d 236, 238 (Tex. App.—Houston [14th Dist.] 2008, no pet.). However, Perez was only
required to produce some evidence on any one of the following to raise a fact issue on immunity:
(1) Officer Yzaguirre was not responding to an emergency call or reacting to an emergency
situation; (2) Officer Yzaguirre did not act in compliance with the laws and ordinances applicable
to the emergency situation; or (3) Officer Yzaguirre acted with conscious indifference or reckless
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disregard for the safety of others. See Quested, 440 S.W.3d at 284; Collins v. City of Houston, No.
14-13-00533-CV, 2014 WL 3051231, at *7 (Tex. App—Houston [14th Dist.] July 3, 2014, no
pet.) (mem. op.); Little, 259 S.W.3d at 238. The lead opinion authored by Justice Chapa holds
Perez produced some evidence as to the third prong of the “emergency exception” — that Officer
Yzaguirre “acted with reckless disregard for the safety of others, and that he knew or should have
known his actions posed a high degree of risk of serious injury, but he did not care about the
result.” I respectfully disagree.
To raise a fact issue as to “reckless disregard,” Perez was required to produce some
evidence that Officer Yzaguirre knew his actions posed a high degree of risk of serious injury, but
he then proceeded with conscious indifference or reckless disregard of the risk posed. See City of
Pasadena v. Kuhn, 260 S.W.3d 93, 99 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (citing City
of San Antonio v. Hartman, 201 S.W.3d 667, 672 (Tex. 2006)); Pakdimounivong v. City of
Arlington, 219 S.W.3d 401, 411-12 (Tex. App.—Fort Worth 2006, pet. denied). Although the
officer may have known his actions posed a high degree of risk, there is no evidence he acted with
conscious indifference or reckless disregard of the risk his actions posed.
Officer Yzaguirre testified that before he entered the Chihuahua/Bartlett intersection, he:
(1) slowed down; (2) looked to his left and right; (3) activated his emergency lights; (4) used his
air horn; and (5) proceeded with caution. Moreover, GPS evidence confirmed Officer Yzaguirre
slowed to approximately sixteen miles per hour when he entered the intersection immediately
preceding the Chihuahua/Bartlett intersection, and although he accelerated shortly thereafter, it is
undisputed he applied his brakes before entering the intersection. The vehicle’s computer system
established the vehicle’s overhead lights were on and the officer used the air horn three or four
times as he approached the Chihuahua/Bartlett intersection. Admittedly, Officer Yzaguirre
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testified that when he looked to his right, he recognized there was a blind spot, but decided to
proceed through the intersection, albeit with caution.
It appears to me the lead opinion believes a material fact issue exists as to reckless disregard
for the safety of others because Officer Yzaguirre: (1) knew there was a blind spot, but proceeded
anyway; (2) accelerated as he was moving through the intersection; (3) had, “in the past, stopped
for traffic failing to yield at an intersection as he attempted to drive through a red light,” but did
not in this case; and (4) “agreed he should brake as necessary if he had a blind spot blocking his
view of oncoming traffic and had time to stop when driving through a red light.” I believe,
however, that the evidence relied upon in the lead opinion — coupled with the fact that the officer
slowed down as necessary, used audible and visual signals to alert the public to his presence,
looked both left and right before entering the intersection, applied his brakes as he approached the
Chihuahua/Bartlett intersection, and in his own words “tried to show due caution to the public” as
he approached the intersection — conclusively establishes Officer Yzaguirre did what he could
under the circumstances to proceed with caution through an intersection he knew had a blind spot.
See Kuhn, 260 S.W.3d at 100 (pointing out that officer slowing down before proceeding through
an intersection but colliding with another vehicle is insufficient to show reckless conduct as a
matter of law); see also City of Laredo v. Varela, No. 04-10-00619-CV, 2011 WL 1852439, at *4
(Tex. App.—San Antonio May 11, 2011, pet. denied) (mem. op.) (“The use of his siren, emergency
lights and vehicle brakes are acts that indicate Officer Cortinas was aware of the dangers to other[s]
as he responded to the emergency call and he was not consciously indifferent to the plight of other
drivers.”). In my opinion, the officer’s testimony conclusively establishes he was cognizant of the
risk of serious injury his actions posed to the public, but he used caution — checking primarily for
pedestrians and other vehicles — while still trying to respond to the priority domestic violence call
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in an expeditious manner. See Varela, 2011 WL 1852439, at *4; Kuhn, 260 S.W.3d at 100;
Pakdimounivong, 219 S.W.3d at 411-12.
Admittedly, Officer Yzaguirre was traveling thirty-six miles per hour at the time of impact,
yet this fact does not diminish the other actions he took in the interest of public safety, nor does it
constitute evidence that his actions were taken with conscious indifference or reckless disregard
for the safety of others. In my opinion, there is nothing in the record to suggest Officer Yzaguirre
lacked concern regarding the potential result of his actions. See Kuhn, 260 S.W.3d at 100;
Pakdimounivong, 219 S.W.3d at 411-12. In light of his speed at the time of impact and awareness
of his blind spot, the evidence, at best, raises a fact issue as to whether Officer Yzaguirre acted
negligently or had a “momentary judgment lapse.” See Kuhn, 260 S.W.3d at 99. This is
insufficient to raise a fact issue with regard to conscious indifference or reckless disregard.
I do believe, however, Perez produced some evidence as to the first prong of the
“emergency exception” — that Officer Yzaguirre was not responding or reacting to an emergency
call or situation. See Quested, 440 S.W.3d at 284; Collins, 2014 WL 3051231, at *7; Little, 259
S.W.3d at 238. Therefore, the trial court erred in granting the plea to the jurisdiction and
dismissing Perez’s suit.
Perez contends Officer Yzaguirre was not responding to an emergency because: (1) it is
undisputed he was not dispatched to the scene; (2) the Standard Operating Procedures Manual
(“SOPs”) used by the Webb County Sheriff’s Office does not characterize domestic disturbance
or domestic violence calls as “emergency calls”; and (3) it is unclear whether the call was a Code
2 call or Code 3 call — or whether either a Code 2 call or Code 3 call is an “emergency.”
I agree with Perez. In this case, Perez produced evidence Officer Yzaguirre was not
dispatched to the domestic disturbance call, suggesting the call was not an emergency. Cf. Collins,
2014 WL 3051231, at *7 (stating plaintiff’s evidence that dispatcher did not characterize call as
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emergency raised fact issue as to whether call was emergency.). Moreover, Officer Yzaguirre
admitted the SOPs do not specifically list a “domestic disturbance” or “domestic violence” call 1
as an “emergency call.” The SOPs do, however, include “assault in progress with weapons
involved” as an “emergency,” but Officer Yzaguirre admitted he was assuming a weapon might
be involved; he was not advised that a weapon was involved. Furthermore, there is no evidence
Office Yzaguirre requested assistance, which by his own admission, would usually be requested if
the call was an emergency.
Additionally, Perez presented evidence that Officer Yzaguirre was not using his siren when
he responded to the call. She suggests this undisputed fact shows the call was a Code 2 call, and
therefore not an emergency because according to the SOPs, a Code 3 call mandates the use of red
and blue emergency lights and sirens. According to Officer Yzaguirre, officers responding to a
Code 2 call use their overhead lights with either the siren or air horn, and officers responding to a
Code 3 use “pretty much everything that the car can give you.” This testimony suggests a Code 3
call is a higher priority call — perhaps rising to the level of an emergency, whereas a Code 2 call
is a lower priority call — perhaps not rising to the level of an emergency. The evidence on this is
less than clear, which I believe in itself raises a fact issue.
Obviously, however, the difference between a Code 2 call and a Code 3 call is the use of
equipment. Officer Yzaguirre admitted he was using his overhead lights and air horn only, which
is some evidence of a non-emergency, i.e., a Code 2 call. Moreover, Officer Yzaguirre admitted
when he responded to the call he “was running a Code 2” contrary to his previous testimony to the
Accident Review Board where he characterized the call as a Code 3 call.
1
In his testimony, Officer Yzaguirre interchangeably referred to the call as a “domestic disturbance” and “domestic
violence” call.
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Thus, when the evidence is considered in the light most favorable to Perez, I contend she
produced some evidence, sufficient to create a fact issue, as to whether Office Yzaguirre was
responding to an emergency call. Therefore, I agree with the conclusion in the lead opinion that
the trial court’s judgment should be reversed and the matter remanded to the trial court.
Accordingly, I concur in the judgment.
Marialyn Barnard, Justice
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