City of Houston v. Darlin Pineda

Dismissed and Memorandum Opinion filed April 4, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00344-CV

CITY OF HOUSTON, Appellant

V.
DARLIN PINEDA, Appellee

On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2021-08712

MEMORANDUM OPINION

Appellee Darlin Pineda was a passenger in a vehicle that was hit by a
Houston Police Department patrol vehicle driven by Officer W. G. Chambers.
Officer Chambers was responding to an armed robbery at a nearby grocery store
when he ran through a red light and collided with the car carrying appellee.
Appellee filed suit against the City of Houston, alleging negligence. Houston
eventually moved for summary judgment arguing that appellee’s lawsuit should be
dismissed because it had not waived governmental immunity. The trial court
denied Houston’s motion and Houston filed this interlocutory appeal. See Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). Because we conclude Houston
conclusively established that the emergency exception applied to Officer
Chambers’ response to the robbery call, we reverse the trial court’s order and
dismiss appellee’s lawsuit for lack of subject matter jurisdiction.

BACKGROUND

Officer Chambers was working a road hazard1 shortly before midnight
during the night shift in the Northwest Patrol District of Houston when he heard a
“general HPD dispatch asking units to respond to an aggravated robbery call” at a
nearby grocery store located on Hempstead Road. The grocery store was located
about five minutes from Officer Chambers’ location. When no other unit was
available to take the aggravated robbery call, Chambers “told the dispatcher to take
[him] off the road hazard and put [him] on the aggravated robbery call.” Dispatch
assigned Officer Chambers to the aggravated robbery call, which, according to
Chambers, was either a Priority 1 or 2 call, both of which are emergency
responses. Officer Chambers was familiar with the grocery store and knew that it
was open until midnight and that there would be store personnel and possibly
customers inside the store. Officer Chambers soon learned from Dispatch that
three suspected robbers were inside the grocery store.

Once Chambers confirmed that he was taking the call, he then turned his
body-worn camera on as well as his patrol vehicle’s emergency and grill flashing
lights.2 In addition, Officer Chambers decided not to activate his siren due to his
close-proximity to the grocery store because he was concerned the sound of the
1
An 18-wheeler truck was in a ditch and a heavy-duty wrecker was on the scene working
to move the truck.
2
According to Chambers, his patrol vehicle was not equipped with a dash-mounted
camera.

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siren would alert the robbers that police were nearby and responding to the
robbery. Additionally, Officer Chambers was concerned that hearing the siren
might provoke the robbers into taking hostages or otherwise harming people inside
the store. Officer Chambers believed that the risk of not activating his siren
created a minimal risk because his emergency lights were highly visible at night,
other traffic was minimal, and road conditions were good. According to Officer
Chambers, the speed limit on Hempstead Road was 50 miles per hour.

As Officer Chambers approached the intersection of Hempstead and
Fairbanks North Houston Road, he saw that he had a red light and he “started to
slow down from a higher speed to approximately forty miles per hour.” Officer
Chambers looked to his left and “did not see any headlights or vehicle motion
coming from that direction nor did [he] see any vehicles located at the intersection
to the left.” Officer Chambers then looked to his right and he saw one or two cars
that had stopped and were yielding the right of way to him. As Officer Chambers
entered the intersection a white Chevrolet Sonic car entered the intersection from
his left and Officer Chambers struck the passenger side of the Sonic.

Darlin Perez Pinto was the driver of the Sonic. He told the police
investigator that he had the green light and he did not see any emergency lights or
hear a siren prior to the crash. Appellee was a passenger in the back seat behind
the driver and he was looking straight ahead prior to the crash. Appellee did not
see what happened. Appellee did, however, see the activated emergency lights on
Officer Chambers’ patrol vehicle immediately upon exiting the Sonic after the
collision. On appeal, appellee does not dispute that the emergency lights on
Officer Chambers’ patrol vehicle were activated at the time of the accident.

Appellee filed suit against Houston alleging negligence. Eventually,
Houston filed a motion for summary judgment asserting that the trial court should

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dismiss appellees’ claims based on Houston’s governmental immunity. The trial
court denied Houston’s motion and this interlocutory appeal followed. See Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(8).

ANALYSIS

Houston raises three issues in this appeal. In its second issue, Houston
argues that it retained its governmental immunity because Officer Chambers was
responding to an emergency prior to the collision. We agree.

I. Standard of Review and Applicable Law

Governmental units are immune from suit unless immunity is waived by
state law. City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022). If a
governmental unit has immunity from suit, a trial court lacks subject matter
jurisdiction. Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012). A
challenge to a trial court’s subject matter jurisdiction may be asserted by a plea to
the jurisdiction or in a motion for summary judgment. Tex. Dept. of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). We review a trial
court’s ruling on a plea to the jurisdiction de novo. Id. at 228.

A defendant’s plea may challenge either the plaintiff’s pleadings or the
existence of jurisdictional facts. Id. When, as here, the governmental unit
challenges the existence of jurisdictional facts, we consider relevant evidence
submitted by the parties. See City of Houston v. Ranjel, 407 S.W.3d 880, 887
(Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Miranda, 133 S.W.3d at
228). If that evidence raises a fact issue as to jurisdiction, the governmental
entity’s plea must be denied because the issue must be resolved by the trier of fact.
Miranda, 133 S.W.3d at 227–28. If the relevant evidence is undisputed or fails to
present a jurisdictional fact issue, however, the governmental unit’s plea must be

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granted. Maspero, 640 S.W.3d at 529. The standard of review for a plea to the
jurisdiction based on evidence generally mirrors that of a motion for summary
judgment. Quested v. City of Houston, 440 S.W.3d 275, 280 (Tex. App.—Houston
[14th Dist.] 2014, no pet.). We therefore must credit evidence favoring the
nonmovant and draw all reasonable inferences in the nonmovant’s favor. Id.

Houston, as a municipality and political subdivision of the State, cannot be
vicariously liable for an employee’s acts unless its governmental immunity has
been waived. City of Pasadena v. Belle, 297 S.W.3d 525, 529 (Tex. App.—
Houston [14th Dist.] 2009, no pet.). Under the facts of this case, possible waiver
of the City’s immunity from suit and liability is found in section 101.021 of the
Texas Tort Claims Act (the Act), which provides in relevant part:

A governmental unit in the state is liable for … 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[.]

Tex. Civ. Prac. & Rem. Code § 101.021(1). This waiver does not apply, however,
“if the [governmental] employee was responding to an emergency, complied with
applicable laws, and—in the absence of applicable laws—did not act with
conscious indifference or reckless disregard for the safety of others.” City of
Houston v. Green, 672 S.W.3d 27, 30 (Tex. 2023) (per curiam) (citing Tex. Civ.
Prac. & Rem. Code § 101.055(2)). The plaintiff has the burden of presenting some
evidence that the emergency exception does not apply. City of Brazoria v. Ellis,
No. 14-14-00322-CV, 2015 WL 3424732, at *7 (Tex. App.—Houston [14th Dist.]

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May 28, 2015, no pet.) (mem. op.).

II. The emergency exception applies to preserve Houston’s governmental
immunity.

The parties agree that appellee’s claims arise from the use of a motor
vehicle. They also agree that Officer Chambers was acting within the scope of his
employment when he responded to the armed robbery call. They also do not
dispute that Officer Chambers was responding to an emergency prior to the
collision. The dispute in this appeal instead focuses on whether Officer Chambers
was reckless in his response to that emergency. Appellee argues Officer Chambers
was reckless because he allegedly violated Houston Police Department policy at
the time of the collision by not using his siren or honking his horn as he entered the
intersection and also because he failed to maintain a proper lookout as he entered
the intersection. Appellee also points out that Officer Chambers was determined to
be at fault for the collision by the police department investigation and he was
disciplined by the department for failing to exercise due care. While appellee
argues that Officer Chambers violated the policies of the Houston Police
Department when he decided to not use his siren, the undisputed evidence from
Officer Chambers establishes that this policy gave officers the discretion not to use
both emergency lights and siren when responding to an emergency call. See Tex.
Transp. Code Ann. § 546.003 (providing that a police officer operating an
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” the
Transportation Code); City of Houston v. Gonzales, 682 S.W.3d 921, 925, n.2
(Tex. App.—Houston [14th Dist.] 2024, no pet.) (“Although the Transportation
Code generally requires audible or visual signals—lights and sirens—to be used in
responding to an emergency call, peace officers may operate an authorized
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emergency vehicle without audible or visual signals if 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.” (internal quotations
omitted)). In addition, Section 536.004(c) of the Transportation Code authorizes a
police officer responding to an emergency call to not use his emergency vehicle’s
audible or visual signals if the officer has probable cause to believe that knowledge
of the officer’s presence will cause the suspect to “end a suspected continuing
felony before the officer has obtained sufficient evidence to establish grounds for
arrest,” or “evade apprehension or identification of the suspect or the suspect’s
vehicle.” Id. at § 546.004(c)(1).

The Texas Supreme Court recently addressed a case with similar facts. In
Green, a Houston police officer was involved in a collision with another vehicle
while responding to an emergency call. 672 S.W.3d at 28. Like here, it was not
disputed that the police officer in Green (1) was responding to a Priority 2
emergency call, (2) had activated his patrol vehicle’s emergency lights, and (3)
proceeded against a red light immediately before the collision. Id. at 30–31. In
Green it was undisputed that the police officer had intermittently activated his
siren during his response but, like Officer Chambers in the present case, he had not
done so prior to entering the intersection where the collision occurred. Id. at 31
(“And assuming as we must that [the police officer] failed to activate his siren
before entering the intersection, department policy placed that decision within his
discretion.”). The Court observed that:

Green’s evidence could support a finding that [the police officer]
suffered a momentary lapse of judgment when he failed to activate his
siren and proceeded across Richmond Avenue without coming to a
complete stop. Indeed, [the police officer] himself conceded in his
deposition that he failed to exercise due care at that point. But
establishing failure to exercise due care does not establish a reckless

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disregard for the safety of others.

Id. The Court then held that “because Green concedes that [the police officer] was
responding to an emergency and because no evidence could support a finding that
he acted with reckless disregard for the safety of others, the emergency exception
applies, and the Tort Claims Act does not waive the City’s governmental
immunity.” Id.

We conclude that the result is the same here. There is no evidence in the
record that Officer Chambers acted with reckless disregard for the safety of others
when he exercised his discretion to not use his siren while responding to the
suspected aggravated robbery at the grocery store. Instead, the record contains
undisputed evidence that Officer Chambers turned his emergency lights on and
evaluated the needs versus risks of using his siren in this situation. The evidence
also establishes that he continued this evaluation process as he approached the
intersection where the collision ultimately occurred. Further, the evidence was
undisputed that Officer Chambers slowed his patrol vehicle as he approached the
intersection and looked both ways before entering. We therefore hold that the
emergency exception applies, and the Tort Claims Act does not waive Houston’s
governmental immunity. See id. We sustain Houston’s second issue.3

3
Because we sustain Houston’s second issue, we need not address the other issues
Houston raised in this appeal. See Tex. R. App. P. 47.1.

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CONCLUSION

Having sustained Houston’s second issue on appeal, we dismiss appellee’s
claims against Houston for lack of subject matter jurisdiction.

/s/ Jerry Zimmerer
Justice

Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.

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