City of Houston v. Percy Taylor

Affirmed and Memorandum Opinion filed April 2, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00629-CV

CITY OF HOUSTON, Appellant

V.
PERCY TAYLOR, Appellee

On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2021-20343

MEMORANDUM OPINION

Appellee Percy Taylor sued appellant the City of Houston following a motor
vehicle accident with the City’s ambulance. The City filed a plea to the
jurisdiction and motion for summary judgment, asserting immunity based on the
emergency exception of the Texas Tort Claims Act. The trial court denied the
motion and plea. We affirm because there is a genuine issue of material fact about
whether the City’s employee was responding to an emergency at the time of the
accident.
I. Standard of Review and Legal Principles

The City cannot be held liable for its employee’s acts unless governmental
immunity has been waived. Gomez v. City of Houston, 587 S.W.3d 891, 896 (Tex.
App.—Houston [14th Dist.] 2019, pet. denied) (en banc). Under the Texas Tort
Claims Act, immunity may be waived if the City’s negligence causes injury arising
from the operation or use of a motor-driven vehicle. See Gillespie v. Galveston
Cty. Health Dist., 639 S.W.3d 815, 819 (Tex. App.—Houston [14th Dist.] 2021, no
pet.) (citing Tex. Civ. Prac & Rem. Code § 101.021(1)). But, there is an exception
to the waiver of immunity if the plaintiff’s claim arises “from an action of an
employee while responding to an emergency call or reacting to an emergency
situation,” among other requirements. Tex. Civ. Prac. & Rem. Code § 101.055;
see also Gillespie, 639 S.W.3d at 819. The Act does not define “emergency call”
or “emergency situation,” but courts have interpreted the terms broadly. City of
Houston v. Sauls, 654 S.W.3d 772, 786 (Tex. App.—Houston [14th Dist.] 2022,
pet. granted); City of Houston v. Hussein, No. 01-18-00683-CV, 2020 WL
6788079, at *8 (Tex. App.—Houston [1st Dist.] Nov. 19, 2020, pet. denied) (mem.
op.). This court has applied a dictionary definition of an emergency: “a sudden,
urgent, usually unexpected occurrence or occasion requiring immediate action.”
Sauls, 654 S.W.3d at 786 (quoting Emergency, Webster’s Third New Int’l
Dictionary 3d ed. 2002).

Governmental immunity defeats a trial court’s subject matter jurisdiction.
Gillespie, 639 S.W.3d at 819. Whether a court has subject matter jurisdiction is a
question of law that we review de novo. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 228 (Tex. 2004). The issue may be asserted in a plea to
the jurisdiction or motion for summary judgment. See City of Houston v. Manning,

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No. 14-20-0051-CV, 2021 WL 1257295, at *4 (Tex. App.—Houston [14th Dist.]
Apr. 6, 2021, pet. denied) (mem. op.).

Courts will consider relevant evidence submitted by the parties to resolve the
jurisdictional issue. Miranda, 133 S.W.3d at 227. The standard of review
generally mirrors that for a summary judgment. Id. at 228. The motion or plea
should be denied if the plaintiff shows that there is a disputed material fact
regarding the jurisdictional issue. See id. We take as true all evidence favorable to
the plaintiff and indulge every reasonable inference and resolve any doubts in the
plaintiff’s favor. Id.

II. Evidence and Analysis

The City’s employee who was driving the ambulance at the time of the
accident, Fernando Hernandez, testified that he and another employee, Jonathan
Wells, were dispatched in response to a 911 call regarding a man in critical
condition who was suffering complications following surgery. Upon arrival, the
employees determined that the patient appeared to be suffering from sepsis.
According to Hernandez, the patient was “extremely critical and needed to be
taken to the hospital as soon as possible.” The patient was “in danger of death but
not imminent death provided he was taken to the hospital quickly.” Hernandez
testified that they were transporting the patient to a hospital, with lights and sirens
activated, when the accident occurred.

However, Taylor points to his testimony and his prior statement to a police
officer that he did not see any lights or hear any sirens from the ambulance. He
also points to a Houston Fire Department incident report, in which Wells, who was
the “in charge caregiver” responsible for treating the patient during transport,
described the patient’s initial status as “Stable (Green).” The report described the
reason for transportation to a hospital as “Patient’s Choice,” and the patient’s
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condition at the destination was “improved.” Hernandez testified that Wells had
four options for describing the patient’s status: green, yellow, red, or black. Green
means stable or “good.” Respectively, the other colors would mean emergent,
critical, and deceased.

The mere fact that Hernandez was transporting Taylor to a hospital in an
ambulance does not automatically render the situation an emergency. See Hussein,
2020 WL 6788079, at *10. Even if an emergency exists when an ambulance is
dispatched to a patient, the Act’s exception may not apply if, at the time of the
alleged negligence, the employee was no longer responding to an emergency call
or reacting to an emergency situation. See id. at *9. In Hussein, the First Court of
Appeals held that the plaintiff showed several fact issues regarding the application
of the emergency exception. See id. at *9–10. The City’s employee drove an
ambulance to the home of a patient based on a call for emergency assistance when
the patient was experiencing chest pains. See id. at *9. The employee activated
the emergency lights and siren. Id. There was evidence that the patient was
experiencing a life-threatening condition that required them to be transported to a
hospital with some urgency. Id. However, there was also evidence that the
employee did not activate the lights and siren while transporting the patient to the
hospital, that the patient’s condition was “stable” during the ride, and that the
patient requested transportation to a specific hospital that was farther away. See id.
at *9–10.

Taylor’s testimony and statement that he did not see the ambulance’s lights
or hear its siren is some evidence that the ambulance’s lights and siren were not
activated while Hernandez transported the patient to a hospital. See Green v.
Alford, 274 S.W.3d 5, 27–28 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)
(en banc) (upholding judgment against firefighter; “[A]lthough a witness might fail

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to hear a siren for a variety of reasons, such failure nevertheless is some evidence
that there was no siren to be heard.”). “Here, a reasonable juror could conclude
that engaging the ambulance’s emergency lights and siren while in route to [the
patient]’s home, but not activating those same lights and siren while transporting
[the patient] to the hospital, raised a fact issue as to whether [Hernandez] was
responding to an emergency call or reacting to an emergency situation at the time
of the collision.” Hussein, 2020 WL 6788079, at *9. Moreover, Wells’s
description of the patient’s condition as “Stable (Green)”—the lowest level of
concern—conflicts with Hernandez’s testimony that the patient was in critical
condition while being transported to the hospital. This evidence would support a
conclusion that Hernandez was no longer responding to an emergency while
transporting the patient to a hospital.

The City attempts to distinguish Hussein because in that case, it was
undisputed that the ambulance’s lights and siren were not activated during the trip
to the hospital. But, the principles for resolving a plea to the jurisdiction or
summary judgment on the issue of governmental immunity require courts to
resolve any conflicts in the evidence and any doubts in Taylor’s favor. See, e.g.,
Miranda, 133 S.W.3d at 228. Thus, we conclude there is sufficient evidence to
raise a fact issue regarding whether Hernandez was responding to an emergency
call or reacting to an emergency situation at the time of the accident. See Hussein,
2020 WL 6788079, at *9–10.

III. Conclusion

The trial court did not err by denying the City’s plea and motion based on
the emergency exception. The trial court’s order is affirmed.

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/s/ Ken Wise
Justice

Panel consists of Justices Wise, Zimmerer, and Wilson.

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