Adriana P. Perez v. Webb County , 2015 Tex. App. LEXIS 5586 ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
DISSENTING 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, Chief 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
I respectfully dissent because I believe (1) in responding to a “domestic call in progress,”
Corporal Horacio Yzaguirre was reacting to an emergency situation and Adriana Perez did not
raise a fact issue on this question, and (2) Yzaguirre’s actions were, at most, negligent and/or
merely a “momentary judgment lapse” and Perez did not raise a fact issue regarding whether
Officer Yzaguirre’s actions were taken with “reckless disregard for the safety of others.”
Therefore, I would affirm the trial court’s order granting Webb County’s motion to dismiss.
Dissenting Opinion 04-14-00275-CV
EMERGENCY
The Texas Tort Claims Act (“TTCA”) does not define the terms “emergency call” or
“emergency situation,” but the Texas Supreme Court has interpreted the term “emergency”
broadly. See City of San Antonio v. Hartman, 201 S.W.3d 667, 673 (Tex. 2006). The Hartman
court held that “because the Act creates governmental liability where it would not otherwise exist,
we cannot construe section 101.055(2) to exclude emergencies the Legislature might have intended
to include.” Id. at 672-73 (city was reacting to an emergency where, among other things, there
was imminent threat of severe injury, loss of life or property due to city-wide flooding); see also
Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 410-11 (Tex. App.—Fort Worth 2006, pet.
denied) (officers were reacting to emergency situation where suspect in back of patrol car tried to
escape through window while being transported to jail); see also Jefferson Cnty. v. Hudson, No.
09-11-00168-CV, 2011 WL 3925724, at *3 (Tex. App.—Beaumont Aug. 25, 2011, no pet.) (mem.
op.) (“emergency” refers to unforeseen circumstances requiring immediate action).
Perez contends Officer Yzaguirre was not responding to an emergency because (1) he was
not dispatched to the scene; instead, he took it upon himself to respond; (2) the Webb County
Sheriff’s Office Standard Operating Procedures (“SOPs”) characterize seven types of calls as
“emergency calls,” and a domestic disturbance is not among those listed; and (3) he was in heavy
traffic seven miles away when he decided to respond as a Code 3 even though the call was only a
Code 2. Perez also notes the evidence is conflicting on whether the call was a Code 2 or a Code
3. Perez contends that, although Officer Yzaguirre characterized the call as a Code 2 at the hearing
on Webb County’s motion to dismiss, he had earlier characterized it as a Code 3, which requires
the use of both lights and siren.
Officer Yzaguirre testified he was in his patrol car working as a patrol and field supervisor
when he heard a radio dispatch “for a domestic call in progress in Los Botines out of Highway
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359.” 1 Because he knew the officer assigned to the area of the call was on another case and because
Officer Yzaguirre was only about seven miles from the location of the call, Officer Yzaguirre
decided to respond to the call. Officer Yzaguirre testified that, as a supervisor, the Webb County
Sheriff’s Office Standard Operating Procedures (“SOPs”) provide he could respond to emergency
calls even though not dispatched. Therefore, although not dispatched to the scene, Officer
Yzaguirre decided to respond. Officer Yzaguirre said a domestic violence call, such as the one
here, is classified as “high priority” because “[i]t changes quickly, needs immediate attention due
to the fact that it was an assault in progress, so you respond as quickly as possible.”
The SOPs do not specifically list “domestic violence” as an “emergency call,” but they do
include “assault in progress with weapons involved,” which is the call Officer Yzaguirre said he
was responding to, although he admitted he did not know if a weapon was involved, but he
assumed the potential of a weapon. The SOPS also include, among the list of “emergency calls,”
“other felony in progress,” and Officer Yzaguirre believed that applied as well because if the
suspect had a weapon the charge could be increased to an aggravated assault, “domestic violence
would be more severe.” Officer Yzaguirre also testified that the audio version of his dashboard
camera indicated he needed to get to the scene quickly because there was “an actual call . . . [that
a] suspect was on the scene still - - where officers were running urgent to the call. They were
running faster, trying to get there quicker.” There is also no dispute that, as a patrol supervisor,
Officer Yzaguirre had the discretion to respond to the call even if he was not dispatched. He also
said that because he is a supervisor, he is not required to inform dispatch whether he is “in a [Code]
3 or 2 or 1, as long as I make it to the call.”
1
The record does not contain a recording or transcription of the actual dispatch call.
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Dissenting Opinion 04-14-00275-CV
The TTCA governs immunity for claims arising from a governmental employee’s actions
while “responding to an emergency call,” as well as the employee’s reactions to an “emergency
situation.” See TEX. CIV. PRAC. & REM. CODE § 101.055(2). Officer Yzaguirre was reacting to “a
domestic call in progress,” and he explained, without contradiction, that these calls are considered
an emergency or high priority “due to the fact of the nature of the violence of the call.” See Tex.
Dep’t of Pub. Safety v. Little, 259 S.W.3d 236, 239 (Tex. App.—Houston [14th Dist.] 2008, no
pet.) (officer responded to dispatch call requesting assistance with a wanted person, officer testified
without contradiction that law enforcement officers consider such requests to be an emergency).
The fact that the SOPs do not expressly list “domestic violence” as an “emergency call,”
does not alter the undisputed facts regarding the reason Officer Yzaguirre responded to the call
and the information to which he was reacting. See, e.g., Little, 259 S.W.3d at 239 (where officer
did not learn that emergency situation did not exist until later, but was responding to mis-coded
emergency call, no fact issue was raised regarding whether emergency exception applied). Nor
does the fact that Officer Yzaguirre was seven miles away from the domestic violence incident
alter the nature of the call as an “emergency.” See Hartman, 201 S.W.3d at 673 (“The Hartmans
argue that the City had at least six hours to place a barricade on the west side of the Rigsby flood,
a period they deem too long to constitute an emergency. But we cannot restrict our review to
Rigsby Avenue, any more than the City could. The statute exempts governments reacting to an
emergency situation, which necessarily includes prioritizing some risks over others. Under the
statute, evidence that the City had time to do more at Rigsby Avenue is not evidence that the City
was no longer reacting to an emergency situation.”).
Finally, I do not believe how the SOPs would define a Code 2 or Code 3 or whether the
call was a Code 2 or a Code 3 raises a fact issue on whether Officer Yzaguirre was reacting to an
emergency situation. According to Officer Yzaguirre, a Code 1 is for normal traffic, such as
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Dissenting Opinion 04-14-00275-CV
stopping at stop signs, yielding to oncoming traffic, maintaining the speed limit, and abiding by
all traffic codes. A Code 2 is for using the overhead lights with either the siren or air horn. Officer
Yzaguirre stated a Code 2 does not necessarily mean you have to use lights and sirens. However,
he said department policy allows for driving “a little bit over the speed limit” with a Code 2, usually
for burglaries in progress, some domestic violence calls, and other calls. Officer Yzaguirre stated
a Code 3 is “pretty much everything that the car can give you.” He said the difference between a
Code 2 and a Code 3 is the use of lights and sirens. However, the SOPs give officers some
discretion to use either lights or audibles: “Officers may activate emergency signal devices on their
own volition, if determined that the technology will aid in a crisis, emergency or perceived problem
situation.” Therefore, I do not believe whether the call was a Code 2 or a Code 3 raises a fact issue
because there is no dispute that Officer Yzaguirre was using his emergency lights and air horn
while responding to a “domestic call in progress,” which I believe, under the circumstances here,
was an emergency situation.
For these reasons, I conclude the County established Officer Yzaguirre was reacting to an
emergency situation and Perez did not raise a fact issue on this question.
COMPLIANCE WITH APPLICABLE LAWS/RECKLESS DISREGARD
The Texas Transportation Code allows the driver of an authorized emergency vehicle to
proceed passed a red light and exceed the maximum speed limit, after slowing where necessary
and so long as the driver does not endanger life or property. TEX. TRANSP. CODE ANN.
§ 546.001(2), (3) (West 2011). With certain exceptions, the Transportation Code also provides
that the operator of an authorized emergency vehicle engaging in conduct permitted by section
546.001 “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
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Dissenting Opinion 04-14-00275-CV
requirements of Sections 547.305 and 547.702.” 2 Id. § 546.003 (emphasis added). “A police
officer may operate an authorized emergency vehicle for a law enforcement purpose without using
the audible or visual signals required by Section 546.003 if the officer is . . . complying with a
written regulation relating to the use of audible or visible signals adopted by the local government
that employs the officer or by the department.” Id. § 546.004(c)(2) (emphasis added). These, and
other, sections of the Transportation Code impose a duty on drivers of authorized emergency
vehicles to “operate the vehicle with appropriate regard for the safety of all persons.” Id.
§ 546.005(1); see also City of Amarillo v. Martin, 971 S.W.2d 426, 434 (Tex. 1998) (holding
predecessor to section 546.005 “imposes a duty to drive with due regard for others by avoiding
negligent behavior”). The SOPs also require a driver to activate emergency signal devices and
headlights “as required by law.” Similar to the Transportation Code, the SOPs impose a duty on
drivers of emergency vehicles, when “executing maneuvers contrary to the Transportation Code
. . . ‘to drive with due regard for the safety of all persons.’”
However, although a driver of an emergency vehicle is under a duty to act “with appropriate
regard for the safety of all persons,” he is subject to liability only for “the consequences of reckless
disregard for the safety of others.” Id. § 546.005(2) (emphasis added); see also Martin, 971
S.W.2d at 434 (holding same under predecessor statute); TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.055(2) (West 2011) (waiver of immunity does not apply, inter alia, “if the action is not taken
with conscious indifference or reckless disregard for the safety of others”). Similarly, the SOPs
provide that “the exceptions exempting the drivers of emergency vehicles from provisions of the
Transportation Code do not protect the driver ‘from the consequences of his reckless disregard for
the safety of others.’”
2
Sections 547.305 and 547.702 deal with the physical requirements of the lights, and are not at issue in this appeal.
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Dissenting Opinion 04-14-00275-CV
A person commits the offense of reckless driving if “the person drives a vehicle in wilful
or wanton disregard for the safety of persons or property.” Id. § 545.401(a). “Conscious
indifference” and “reckless disregard” are not defined in the statute; but, those 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. Thus, a governmental entity is liable for damages resulting
from the operation of an emergency vehicle only if the operator acted recklessly; that is, only if
the operator “committed an act that the operator knew or should have known posed a high degree
of risk of serious injury” but did not care about the result. Martin, 971 S.W.2d at 430; Smith v.
Janda, 126 S.W.3d 543, 545 (Tex. App.—San Antonio 2003, no pet.). Under this standard, Perez
was required to raise a fact issue on whether Officer Yzaguirre committed an act he knew or should
have known posed a high degree of risk of serious injury, as opposed to a mere momentary
judgment lapse. Martin, 971 S.W.2d at 430; City of Pasadena v. Kuhn, 260 S.W.3d 93, 99 (Tex.
App.—Houston [1st Dist.] 2008, no pet.). I do not believe a fact issue was raised.
As explained above, the SOPs provide for the use of lights and/or audibles based, to some
degree, on whether the call is characterized as a Code 1, 2, or 3. There is conflicting evidence on
whether Officer Yzaguirre was responding to a Code 2 call or a Code 3 call. At the hearing, he
stated he was on a Code 2 call, which does not require the use of a siren. However, Officer
Yzaguirre was confronted with his testimony before the Accident Review Board during which he
characterized the call as a Code 3. Under the SOPs, a Code 3 call requires the use of red and blue
emergency lights and sirens. The SOPs do not mention Code 2 calls, but according to Officer
Yzaguirre, a Code 2 call requires the use of overhead red and blue lights with either an air horn or
a siren. Because there is a fact issue on whether Officer Yzaguirre was responding to Code 2,
which does not require the use of a siren, I assume, without deciding, that he was responding to a
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Code 3 call, which does require the use of a siren. Nevertheless, this alone is not determinative of
whether Perez raised a fact issue sufficient to satisfy her burden.
The evidence in the light most favorable to Perez reveals Officer Yzaguirre was unable to
see Perez before he entered the intersection, he was driving at a speed over the posted limit, he
drove through the red light at the intersection, and he had not activated the siren on his vehicle.
However, I do not believe this evidence raises a fact issue on whether Officer Yzaguirre acted with
conscious indifference or reckless disregard for the safety of others.
Officer Yzaguirre testified he did everything he could to be cautious, he slowed down as
necessary, he used audible signals as necessary to alert citizens to his presence, and he braked and
did not accelerate through an intersection. He also stated he checked in both directions as he
entered an intersection. When asked his normal procedure for approaching an intersection when
responding to an emergency, Officer Yzaguirre responded as follows:
I try to use as much caution as possible, slow down at the intersection, using
my overheads, my air horn, siren, depending on the nature of the call, the time of
day, the road conditions, also to distinguish what I would use. Mostly, I would use
caution.
...
Checking. Checking for pedestrian or other vehicles not listening to the
emergency vehicle, checking left, checking right, using caution. Go slowly, as slow
as possible, but still trying to answer the call with adequate time.
...
… So, I mean, you have numerous things going on in the car. You have the
radio going on. You’re trying to use different audibles to alert different types of
people. You have your air horn going off as you’re approaching intersections. I
try to do everything possible to alert the community that I’m trying to get through
to an emergency.
Officer Yzaguirre testified that, as a field supervisor, he has some discretion as to what
type of equipment he may use when responding to an emergency. Officer Yzaguirre testified that
in this instance, he looked both ways before entering the Chihuahua/Bartlett intersection against
the red light. As indicated by the information from Officer Yzaguirre’s dashboard camera, the
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impact between his vehicle and Perez’s occurred at the 08:17:26 timer mark. The triggers on the
camera screen indicate he had turned on his emergency lights, used his air horn three or four times,
and hit his brakes at the timer mark of 08:17:23 as he approached the Chihuahua/Bartlett
intersection. His foot is still on the brakes at 08:17:24, but off the brakes at 08:17:25—one second
before impact. Although he had slowed to about sixteen miles per hour at the prior intersection,
Officer Yzaguirre was apparently travelling at approximately thirty-six miles per hour when he
entered the Chihuahua/Bartlett intersection.
The use of his emergency lights and air horn, his testimony that he looked both ways before
entering the Chihuahua/Bartlett intersection, his travelling at only about six miles over the speed
limit, and the fact that his foot was on the brake until one second before impact indicates Officer
Yzaguirre was aware of the dangers to others as he responded to the call and he was not consciously
indifferent to or acting with reckless disregard for the safety of others. See City of Laredo v.
Varela, 2011 WL 1852439, *4-5 (Tex. App.—San Antonio May 11, 2011, pet. denied)
(“According to the clock on the video, the accident took place less than one second after the officer
stopped applying his brakes, which indicates the officer was relatively close to the intersection
when he stopped applying his brakes. The use of his siren, emergency lights and vehicle brakes
are acts that indicate Officer Cortinas was aware of the dangers to others as he responded to the
emergency call and he was not consciously indifferent to the plight of other drivers. . . . .
Moreover, the use of his siren, emergency lights and vehicle brakes, indicate Officer Cortinas took
precautions to avoid a risk of harm to others.”).
Although Officer Yzaguirre may have been negligent, I do not believe Perez raised a fact
question on whether he committed an act he knew or should have known posed a high degree of
risk of serious injury, as opposed to a mere momentary lapse in judgment. Martin, 971 S.W.2d at
430.
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CONCLUSION
Officer Yzaguirre was driving an authorized emergency vehicle while responding to an
emergency situation with his lights activated and while using his air horn. Therefore, Webb
County met its burden to establish lack of subject matter jurisdiction. The burden then shifted to
Perez to raise a material question of fact on whether Officer Yzaguirre was responding to an
emergency call/emergency situation or whether he acted with conscious indifference to or reckless
disregard for the safety of others. I do not believe she satisfied her burden; therefore, I would
affirm the trial court’s order granting Webb County’s motion to dismiss for lack of jurisdiction.
Sandee Bryan Marion, Chief Justice
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