Kaufman County v. Leggett, Christopher , 2012 Tex. App. LEXIS 9999 ( 2012 )

A FF1 RNI: Opinion ssued December 4. 201 2.
in The
Qttnirt 01 App rats
Fift1! Di5trirt tf Irxas at Ja1La
No. O5-12-00430-CV
KAUFMAN COUNTY, Appellant
V.
ClIRISTOPII lR LECGI’I’T, Appellee
On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 81109-422
OPINION
Before Justices Morris, Francis, and Murphy
Opinion By Justice Murphy
Kaufluan County appeals the trial Court’s interlocutory order denying its plea to the
jurisdiction in Christopher Lcggett’s suit for personal injuries. We affirm.
BACKGROUND
Leggett sued the County after sustaining injuries when Sergeant Richard Gaddis, a Kaufman
County sheriff’s deputy. “rear-ended” Leggett’s motorcycle with his patrol car during a traffic stop.
The collision occurred the morning of October 24. 2OO. Gaddis was on his way to work, driving
an unmarked patrol car on Highway 175, At one point, Gaddis looked in his rear-view mirror and
saw two or three cars swerving to get out of the way of a motorcycle that was coming up from
behind. Leggett was the (Iriver of the motorcycle. According to Gaddis, Leggett was “driving crazy”
and ‘‘11 ing up” on ( addis. who was driving a speed consistent with the flow of traflic. (iaddis
t. -i im ikd I jti i di i 104 1 ij lol I Ixici th in 70 mi ls pu houi
As I eggett passed, Gaddis turned on his emergency lights to get Leggett’s attention; Gaddis
believed “[sjomebody needs to slow this guy down.” The emergency lights on Gaddis’s unmarked
police vehicle were located in the front headlights and flashed on and off when activated. Gaddis’s
vehicle also had a red and blue shining light located inside the vehicle just above the rear—view
mirror. [lix vehicle did not have a siren or other markings that would identify it as a police unit.
When he turned on his emergency lights, Gaddis did not believe Leggett saw them or knew Gaddis
was behind him because Leggett “was driving so fast.” Gaddis then sped up, going as fast as 107
miles per hour, to catch up with Leggett. Gaddis also called for assistance from another law-
enforcement agency.
Around the same time, Leggett looked back and saw that Gaddis was trying to pull him over.
Leggett noticed Gaddis was approaching him “at a htirly high rate of speed’ and “gaining on [him]
very fast.” Leggelt realized he needed to stop and signaled to Gaddis with his hand that he was
pulling over. Leggett slowed down in the right-hand lane and moved off the road onto the shoulder
at the same time, “[j]ust like your normal traffic stop.” As Leggett was coming to a stop and putting
his kick-stand down, Leggett heard “screaming tires” and saw Gaddis “barreling” toward him.
Leggett tried to mOVC oUt of the way, but he did not have enough time. Gaddis’s vehicle hit the rear
of Leggett’s motorcycle. Leggett was thrown off his motorcycle and landed face down in a ditch.
Gaddis’s vehicle left skid marks measuring ninety-eight feet.
Leggett tiled suit against the County, seeking damages for injuries he sustained in the
collision. He did not seek damage to his motorcycle because the County resolved that claim.
Leggett alleged Gaddis’s conduct of traveling at an excessive rate of speed before colliding with
I cegett’s motorcycle was “not only negliuent” but also “extremely daimerous. reckless and grossly
negligent.’ lie further ailcued ( taddiss conduct violated internal policies for the operation of a
patrol unit and was such that no objectively reasonable police olhccr could have believed such
conduct was lawful.
The County filed a plea to the jurisdiction, arguing the trial court did not have jurisdiction
of the case because the Texas lort Claims Act’s (TTCA) statutory exception for emergencies
applied, overriding any waiver of its governmental immunity from suit. In response, Leggett argued
the statutory exception did not apply because the evidence (I) showed Gaddis was engaged in a
routine traffic siop, not an emergency situation, and (2) raised a fact issue as to whether Gaddis’s
actions were reckless. In support. Leggett attached excerpts from his and Gaddis’s depositions as
well as a document containing portions of the County’s policies and procedures related to the
operation of police vehicles and pursuits. The trial court held an evidentiary hearing, during which
Leggett and two other witnesses testified. Other documents, including photographs of the scene,
affidavits of a witness and the investigating othcer, and the complete transcript of Leggett’s and
Gaddis’s depositions, were admitted as evidence. Afier allowing the parties to submit post-hearing
letter briefs, the trial court signed an order denying the County’s plea without specifying the basis
for the denial, The County filed this interlocutory appeal. See TEX. Civ. PRAC. & REM. CODE ANN.
§ 51.014(a)(8) (West 2008).
LEGAL STANDARDS
Immunity from suit defeats a trial court’s subj ect-matter jurisdiction and is properly asserted
in a plea to the jurisdiction. Tex. Dep’t ofParks & Wildlik v. Miranda, 133 S.W.3d 217, 225—26
(Tex. 2004). Whether a court has subj ect-matterjurisdiction and whether a plaintiffhas alleged facts
that affirmatively demonstrate a trial court’s subject-matter jurisdiction are questions of law. Id. at
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22(: I’erc i’. Citi’ ,f 1)ullas. ISO S.W.3d 906, 909 (Tex. App. I )all.is 2005, no pet.). We therefore
review de novo a trial courts nil ing on a )unsdictional plea. Miranda, I 33 S.W.3d at 226; (‘liv of
t)allt,s v. uIuriu”c 344 S.W.3d 549. 553 (Tex. App. Dallas 2011, no pet.).
A governmental unit’s jurisdictional plea can be based on the pleadings or on evidence.
Miranda, 133 S.W.3d at 226; Bland Indep. Sch. 1)1st. V. Blue, 34 S.W.3d 547, 555 (Tex. 2000).
When a plea to the urisdietion challenges the pleadings, we look to whether the plaintilihas alleged
facts that aflirmatively demonstrate the trial courts jurisdiction to hear the case. Miranda, 133
S.W.3d at 226 (citing Tex. Ass ‘a o/Bus. v. Tex. Air Contra! Ba’.. 852 S.W.2d 440,446 (‘Fex. 1993)).
We liberally construe the plaintifts pleadings in favor ol jurisdiction, and we look to the plaintiff’s
intent, accepting as true the facts alleged, Id. at 226, 228.
When a plea challenges the existence of jurisdictional facts, we must consider relevant
evidence submitted by the parties to resolve the jurisdictional issues. Id. at 227; Hughes, 344
S.W.3d at 553. In reviewing such a plea, we take as true all evidence favorable to the nonmovant,
indulging every reasonable inference and resolving any doubts in the non—movant’s favor. Miranda,
1 33 S.W.3d at 22728. This standard mirrors our summary-judgment standard under Texas Rule
of Civil Procedure I 66a(c) and places the burden on the governmental unit, as movant, to meet the
standard of proof to support its contention the trial court lacks subject-matterjurisdiction. ld. at 228.
Once the governmental unit asserts and provides evidentiaty support for its plea, the plaintiff is then
required to show only that a disputed fact issue exists. lcL; City of Dallas i Heard, 252 S.W.3d 98,
102 (Tex. App.—Dallas 2008, pet. denied). If the evidence creates a fact question on the
jurisdictional issue, the trial court cannot grant the plea; rather the fact issue is for the fact finder to
resolve. Miranda, 133 S.W.3d at 227—28. if the relevant evidence fails to raise a fact question or
is undisputed on the jurisdictional issues, the trial court rules on the plea as a matter of law. Id. at
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 \I’I9 I( BI I I .W
‘ i iii it umm IR pi itec Is pi dii wal siihd I \ Isions Ott he t,iI’ ii wl udiiw counties. I r ii
mlii il’iiitv ‘ I/cl/H I ‘uii o ç.\\ d O X ( I ‘\
)flo) 1 )‘U/c t\ ( l\
I ii ( ii \r—.’. 1I)I_(tl)lt lId. Vvhen the e\cept ion applies, tile
iT( ‘A is unavailahic as a aiver ol’ immunity even I’ the Facts other wise liiI I v ithin a wai\ er lound
in sect ion Ii) I .1)21 Ilailnuin, 21)1 S.W.3d at 67 1 72.
I lie la\\ s applicable to emergency actions are Found in the I exas I u’anspor(atiun ( ode. I or
example. an operator ol an emergency vehicle may engage in certain permissible conduct, such as
exceedint! the inaxi mum speed limit hen responding to an emergency call or pursuing an actual or
Suspecte(I ‘ ioiatoi ot the lav .3c’e It \. ‘IR \!‘sSI’. C( )t N. ANN. )46.00 l(3 ). 5 4(i.002( b )( .2) ( \Vest
2011). 1 his conduct is pennissible as long as the operator does not endanger life or property, and
he must operate his vehicle “with appropriate regard lbr the saftty ofall persons.” hi. 546.001(3),
546.005(1). The operator of an emergency vehicle is not relieved of the “consequences of reckless
disregard for the safety of others.” 1(1. § 546.005(2); see aLco Smith v. Janda. 126 S.W.3d 543, 545
(Tex. App.-- San Antonio 2003, no pet.). ‘thus, under section 546.005, those who respond to
emergency calls in authorized emergency vehicles, which include police vehicles, are subject to
liability if their conduct is reckless. TEx. TRANsP. CoDE ANN. § 546.0O5(; C’ity of Pasadena v.
Belle, 297 S.W.3d 525, 534 (‘Fex. App.—1 louston [14th I)ist.J 2009. no pet.). To establish liability
in this context, a plaintiff must show that the operator “committed an act that [he] knew or should
have known posed a high degree of risk of serious injury.” city o/Amariilo v. Martin, 971 S.W,2d
426, 430 (Tex. 1998).
In the absence of applicable laws, immunit is waived if the operator acted with “conscious
indifference or reckless disregard for the safety of others.” ‘FEX. Civ, PRAC. & REM. CODE ANN. §
101.055(2). The TTCA does not define the terms “conscious indifference” or “reckless disregard.”
In 1-lariman, however, the ‘lexas Supreme Court looked to the ordinary meaning of the terms and
noted that the terms have been interpreted to “require proof that a party knew the relevant facts but
did not care about the result.” Hartman, 201 S.W.3d at 672 n.19. In assessing the operator’s
conduct, we may not engage in judicial second-guessing for momentary lapses in judgment by
emergency personnel responding to emergency situations.” .Je/fi’rso,i C’ntv. v. Hudson, No. 09-11-
00168-CV, 2011 WL 3925724, at *3 (Tex. App.—Beaumont Aug. 25, 2011, no pet.) (mem, op.);
cf Martin, 971 S.W.2d at 430 (noting “reckless disregard” test under transportation code not
satisfied with proof of ordinary negligence or momentary lapses ofjudgmcnt).
ANALYSIS
The County contends in two issues that the trial court erred by denying its plea to the
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jurisdiction because it retained its immunity from suit pursuant to the emergency exception ot the
TTCA. The County raised the emergency exception in its plea, arguing immunity is not waived
under the TTCA because Leggett’s claims “arise from an emergency response” and Leggett cannot
meet his burden to present jurisdictional evidence to raise a material fact queStion as to whether
(iaddis’s actions were reckless, The County did not challenge Leggctt’s pleadings in its plea, hut
it argues on appeal that the “nature of a plea to the jurisdiction itself” is a challenge to the sufficiency
of the pleadings because a plaintitI bears the burden to set forth allegations establislung a valid
waiver of immunity. The County argues Leggett “fail[edj to allege an actionable claim within a
waiver of immunity.” Although we have said we have no jurisdiction in an interlocutory appeal to
“consider issues that are outside the plea to the jurisdiction that was filed,” Heard, 252 S.W.3d at
I 04, recent authority from the Texas Supreme Court suggests that we are not precluded from
addressing this argument. See, e.g., Rusk State Hosp. v. Black, No. 10-0548, 2012 WL 3800218, at
*6 (Tex. Aug. 31, 2012) (holding that “if immunity is first asserted on interlocutory appeal, section
51.014(a) does not preclude the appellate court from having to consider the issue at the outset in
order to determine whether it has jurisdiction to address the merits.”). We therefore address the
County’s contention related to Leggett’s failure to allege a waiver of immunity in his pleading.
There appears to be no serious dispute about whether Leggett’s allegations establish a waiver
of immunity tinder section 101.02 1. Leggett alleged he received personal injuries arising from the
operation or use of a county vehicle by a county employee. And in its plea, the County agreed
Leggett sued the County for Gaddis’s conduct, “alleging sovereign immunity is waived” under
section 101.021(1).
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Leggett’s pleading also included allegations that Gaddis ‘s conduct was reckless under the
carcumstanccs Spcafacally Leggett allcgLd he was driving his motorcycle on the highway when
Gaddis pulled him over, After Leggett pulled his motorcycle to the shoulder, Gaddis, whom Leggett
asserted was traveling at an excessive rate of speed, collided with Leggett’s motorcycle. Leggett
alleged this conduct was not only negligent but also extremely dangerous, reckless, and grossly
negligent. Leggett also alleged Gaddis’s conduct was in violation of department policies for the
operation of patrol units and was such that no reasonable officer would have believed such conduct
was lawful under the circumstances and in light of established law and “information held by Sgt.
Gaddis at the time of the occurrence,” Leggett listed nine “particulars” in which Gaddis was
negligent, reckless, and grossly negligent, including Gaddis’s failure to comply with traffic stop
policies, control his vehicle, maintain a safe distance between the patrol vehicle and the vehicle in
front of him, timely apply his brakes, and turn to avoid the collision. Leggett further alleged Gaddis
was driving at a greater rate of speed than a person using ordinary care would have driven. Leggett
asserted the County, through its employee, had awareness of the risk involved, but “nevertheless
proceeded with conscious indifference to the rights, safety and welfare of [Leggettj and others,”
When we construe Leggett’s pleadings liberally, as we must, we conclude Leggett alleged sufficient
facts to establish a waiver of immunity under section 101.021 as well as the non-applicability of the
emergency exception. Miranda, 133 S.W.3d at 226.
In response to the County’s arguments on appeal, Leggett does not assert the County failed
to support its contention that the trial court lacks subj ect-matter jurisdiction or otherwise assert the
County failed to meet its burden of proof. The question before us then is whether Leggett raised a
fact question that the actions taken by (iaddis were not taken in response to an emergency, or were
reckless. See h’v. Dep ‘1 of Pith. 5z/etr r. Little, 25k) S.W .3d 236, 2340 ([cx. App.—4 louston
[14th Dist j 2008 no pet) see also Jlanman 201 S W 3d at 672 We express no opinion as to
whether Gaddis was responding to an emergency situation because having reviewed the evidence
submitted as part of the jurisdictional proceedings, we conclude Leggett met his burden to raise a
gcnuin.. issue of m itcri I I ict that Gaddis s actions in ii ir1g to stop Lcggctt lfl(l thcn cOl1id1flL with
Leggett’s motorcycle were reckless. See Hudson, 2011 WL 3925724, at *4
To raise a fact issue on whether Gaddis’s actions were reckless, Leggett relies on evidence
showing that despite Gaddis’s training. Gaddis used “excessive” speed in trying to stop Leggett and,
knowing Leggett would stop as soon as he saw Gaddis. was unable to control his speed when Leggett
did pull over. Gaddis specifically testified he reached a speed of 107 miles per hour (in a 65 mile
per hour zone), which Gaddis conceded was “unsafe” under the circumstances. The circumstances
included the flict that he was in an unmarked police vehicle. Gaddis testified that when he is
engaged in a traffic stop while driving an unmarked vehicle, one concern is that the other vehicles
on the road need to be aware he is there. Gaddis added that he knew it can take the person being
stopped longer to recognize he is being pulled over. Gaddis stated his only reason for stopping
Leggett was because Leggett was speeding. Gaddis had not observed Leggett hitting another vehicle.
Nor did Gaddis consider this to be a “pursuit”: that is, he did not believe Leggett was fleeing from
law enforcement or otherwise engaged in evasive action.
When Leggett began to slow down and pull onto the shoulder, Gaddis was between sixty and
100 feet behind Leggett. Gaddis testified he was close enough to tell Leggett was “definitely slowing
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down’ l3ut at that point, Gaddis had slowed to only filly to sixty miles per hour by applymg his
brakes. And although Gaddis claimed that he did not know what Legget( would do as he slowed
down, Gaddis also testilied he expected Leggett would pull onto the shoulder. Leggett testified he
had signaled to Gaddis with his hand that he was pulling over and that he decelerated and moved
onto the shoulder like a normal traffic stop. Gaddis (lid not recall seeing Leggett indicate his
intention to pull over.
Gaddis testified his training included instruction on “tactical driving,” how to “make sure that
the surroundings are safi” when engaging in a traftic stop, and stopping distances and times for
different road surfiices, such as gravel. (jaddis admitted, however, that he gets nervous “any time
[he’sj driving fast,” and he agreed with the investigating officer’s report, which indicated Gaddis was
unable to control his speed before he hit Leggett’s motorcycle. Gaddis also agreed that during his
efforts to stop, his police vehicle skidded, starting in the right—hand lane and continuing onto the
shoulder. The shoulder was a concrete surface with loose, “paved gravel.” Based on his training,
Gaddis knew that stopping abruptly on this surlhce can cause a loss of control. Photographs of the
scene showed (jaddis’s vehicle left skid marks measuring ninety-eight feet.
Leggett also relied on the testimony of Mike Cook, a witness to the collision, who testified
that he believed Ciaddis’s actions leading up to the accident were reckless. Cook testified he
believed Gaddis’s speed was “excessive for the conditions” as they existed on the highway. Cook
described traffic as light at the time Leggett passed, but they were coming up on some traffic. Cook
estimated that when Gaddis was following Leggett, Gaddis was “maybe 15 feet behind Leggett.”
Cook testified Gaddis’s speed was “too fast” in relation to his “closeness” to Leggett and “[i]f
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something was to happen, there ain’t no way [Gaddis] would Stop.’ According to Look, Leggett’s
stop was not ahi upt Cook testificd that when LeggLtt saw thc officu behind him, Leigett proceeded
to pull over to the right—hand lane and then to the shouldeL
In support of its contention that Gaddis’s actions were not reckless, the County relies on facts
showing the collision happened in “an instant” and that Gaddis used his brakes and took evasive
measures to avoid the collision. (iaddis testified in his deposition that as Leggeit passed Gaddis’s
unmarked police vehicle, Gaddis activated his emergency lights to get Leggett’s attention. Gaddis
sped up because Leggett was getting “further and further away from [hirnj.” Gaddis testified that
when Leggett realized he was behind him, Leggelt’s speed went down “to about 10 miles per hour”
in the “blink of an eye.” Leggett was in the right-hand lane, and Gaddis claimed he did not “know
what [Leggett’sj plans were.” Gaddis tried to get over to the shoulder, but Leggctt moved to the
shoulder at the same time. Gaddis testitied he did not have enough time to adjust his stopping
distances before hitting Leggett’s motorcycle with his police vehicle.
The County further maintains reckless disregard is negated because there is no evidence
Gaddis knew he would he approaching Leggett “stopped in the roadway” and that Gaddis’s action
of “swerving to the shoulder would result in Leggett moving in front of him.” But Leggett presented
evidence that Gaddis used excessive and unsafe speed, followed Leggett too closely in an unmarked
police vehicle, knew Leggett was pulling over and expected him to do so, and then was unable to
decelerate and control his speed before pulling behind Leggett on a shoulder with a loose gravel
surface. The County argues these events happened in “an instant,” but Leggett’s evidence also
shows that before Gaddis hit him, Leggett had time to maneuver his motorcycle to a stop, use his leg
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to put his kickstand down, attempt to lean his motorcycle over, turn around to see Gaddis
hn LII nu do n on In in flip thc kick t md h ILk up md am it do n in fit ‘t gai to get out of
the way. A reasonable person could inter horn evidence, such as Cook’s testimony about how
closely Gaddis was following Leggett despite their high speeds, that Gaddis knew the relevant flicts
prcsLnting t hiuh dLw cc of t isk of sci ous inuiv hut actcd in disi cgard ol that i isk S e Hai (man
201 S.W.3d at 672 n.19.
When we indulge every reasonable inference and resolve any doubts in Leggett’s favor, we
conclude there is a dispute regarding whether Gaddis’s actions were reckless. See Miranda, 133
S.W.3d at 228. Because the evidence creates a fact question on the jurisdictional issue, the trial did
not err in denying the County’s plea. Id. at 227-2.
We overrule the County’s two issues and affirm the trial court’s order denying the County’s
plea to the jurisdiction. /
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1 1 / /
MAkY NRPHY /
II 11
JUs[ICll/
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JUDGMENT
KAUFMAN COUNTY, Appellant Appeal from the 422nd Judicial District
Court of Kaufrn in ( OUnt\ R\ Is
No. 05 I 2—()()430—CV V (Tr.Ct.No. l 109-422).
Opinion delivered by Justice Murphy.
ClIRISTOPHER LEGGETT, Appellee Justices Morris and Francis participating.
In accordance with this Court’s opinion of this date, the trial court’s order denying appellant
Kaufman County’s plea to the jurisdiction is AFFIRMED. it is ORDERED that appellee
Christopher Leggett recover his costs of this appeal from appellant Kaufman County.
Judgment entered l)ecemher 4, 2012.
MARY
JUSTICE