“Emergency Call” TTCA case remanded for trial after Fourth Court generates three separate opinions

Adriana P. Perez v Webb County, 04-14-00275-CV, (Tex. App. — San Antonio, June 3, 2015)

This is an automobile accident case under the Texas Tort Claims Act which resulted in a lead opinion, a concurring opinion for very different reasons and a dissent. The length of this summary goes to the differences in the varying justices’ opinions. The Fourth Court of Appeals ultimately ended up sending the case back for trial on factual issues.

Perez was driving down the streets of Laredo, Texas. Yzaguirre, who was the patrol supervisor and a field supervisor in Webb County, heard a call over the radio for a domestic disturbance.  He activated his overhead lights and headed in the direction of the call’s location. He stated he used his overhead lights and his air horn to move the traffic, but not his siren. When he entered an intersection he collided with Perez.  Perez sued for claims under the Texas Tort Claims Act. Yzaguirre filed a plea to the jurisdiction and claimed he was on an “emergency call” and no waiver of immunity existed. The trial court granted the plea and Perez appealed.

Justice Chapa, in the lead opinion, assumed without deciding that Yzaguirre was responding to an emergency call. However, in such a situation, a public employee cannot act with reckless disregard for the safety of others in responding to an emergency situation. Tex.  Civ. Prac. & Rem. Code Ann.  § 101.055(2).  Transportation Code §546.005 provides that the driver of an emergency vehicle must drive “with appropriate regard for the safety of all persons” and he is not relieved of “the consequences of reckless disregard for the safety of others.” A person commits the offense of reckless driving if “the person drives a vehicle in willful or wanton disregard for the safety of persons or property.” Id. §545.401(a).  When analyzing the facts submitted, Yzaguirre admitted that he could not see the traffic approaching from the right side, but proceeded anyway into the intersection. The court listed evidence taken from the camera noting when his horn sounded, siren triggered and lights flashed. As a result, the court noted a fact question exists as to whether Yzaguirre acted recklessly.

Justice Barnard concurred in the result for remand, but disagreed as to the analysis.  She first took issue with Justice Chapa’s determination that a fact question exists as to the reckless disregard determination. She held “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.” She analyzed the facts presented  and held “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.”  That does not constitute recklessness but “conclusively establishes he was cognizant of the risk of serious injury his actions posed to the public, but he used caution.” A fact question may exist as to negligence, but not recklessness.  However, Justice Barnard also held that Perez submitted “some” evidence that the call was not an emergency which triggers the exception to waiver. He was not the officer dispatched, the department’s standard operating procedures does not define domestic disturbances as emergencies and it is unclear what the emergency was.  Therefore a fact question exists, but to a different aspect of the case than the lead opinion.

Chief Justice Marion dissented.  She held the Texas Supreme Court has interpreted the term “emergency” broadly. The department’s standard operating procedures (“SOPs”) provide discretion for officers to respond to emergency calls even though not dispatched. Officer Yzaguirre testified 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 fact the SOPs generically do not classify a domestic disturbance call as an emergency does not negate the analysis performed by Yzaguirre in deciding to respond to this particular situation. The Chief Justice then went through several Transportation Code sections and SOP language in determining Perez did not create a fact question as to recklessness.  She held that while the undisputed facts seem to indicate negligence, they do not come close to implicating recklessness. As a result, she would have upheld the grant of the plea.

If you would like to read this opinion click here.  Panel: Justice Luz Elena D. Chapa issued the lead opinion, Justice Marialyn Barnard issued the concurring opinion and Chief Justice Sandee Bryan Marion issued the dissent.  The attorney listed for the Appellant is John Blaise Gsanger. The attorney listed for the Appellee is Molly Santos.