City of Hous. v. Manning
| Decision Date | 06 April 2021 |
| Docket Number | NO. 14-20-00051-CV,14-20-00051-CV |
| Parties | CITY OF HOUSTON, TEXAS, Appellant v. CHELSEA MANNING, INDIVIDUALLY AND AS NEXT FRIEND OF T.N., LATISHELY DEWALT, AS NEXT FRIEND OF A.M., AND CIERRA WILLIAMS, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 127th District Court Harris County, Texas
A City of Houston fire truck was involved in a collision with appellees. The accident occurred when the fire truck, responding to a dumpster fire call, proceeded through an intersection against a red signal and struck appellees' vehicle. Appellees filed this negligence suit, and the City sought dismissal on immunity grounds in a motion for summary judgment, which the trial court denied.
In this interlocutory appeal, the City argues that the trial court lacks subject-matter jurisdiction over some or all claims for two reasons. First, the City contends that it is immune because the fire truck's driver is entitled to official immunity. Second, the City contends that the trial court has no jurisdiction over appellees' claims for negligent training, retention, and supervision.
We overrule the City's first contention as to appellees' negligence and negligence per se claims because a genuine and material fact question exists relevant to the good-faith element of the driver's official immunity. For this reason, and on this record, the City failed to show that it is entitled to judgment as a matter of law. However, we agree with the City that appellees' live pleading fails to establish a waiver of immunity for any claim predicated on negligent training, retention, or supervision, and so we render judgment that those claims be dismissed. We affirm the remainder of the trial court's order denying the City's summary judgment motion.
Houston Fire Department ("HFD") Station 82 received a dispatch call to respond to a dumpster fire at an apartment complex. HFD Engineer/Operator Wilhelm Schmidt drove the fire truck southbound on Fondren Road. At the same time, Chelsea Manning was driving westbound on Ludington Drive, which intersects with Fondren Road. Also in Manning's car were three passengers, T.N., A.M., and Cierra Williams. As Manning's car entered the intersection of Ludington Drive and Fondren Road on a green light, the fire truck driven by Schmidt proceeded through the red light on Fondren Road and collided with the passenger side of Manning's car. The fire truck was travelling at 45 miles per hour, which was 10 miles per hour over the posted speed limit for that section of Fondren Road.
Houston Police Department ("HPD") officers responded to the scene. Schmidt gave a statement to one of the investigating officers, which was paraphrased in the accident report:
We were responding to a burning trash can call, so we had our lights and sirens activated traveling south on Fondren. We were approaching the intersection and the person driving a car must have gotten scared and accelerated as we were making it through the light. We struck the car but then we got out and helped the people that were in the car. I did not see the color [of] the light when I went through it. The speed that we were traveling was around 45 mph, at the time of impact. (Spelling and capitalization normalized).
Manning and the three passengers suffered injuries and were transported to a nearby hospital. The HPD officer in charge of the accident investigation concluded that Schmidt was responding to an emergency call, that Manning had a green light when she entered the intersection, and that Schmidt failed to proceed with "duty and care" through the intersection.
Manning, individually and on T.N.'s behalf, as well as Latishely Dewalt, as next friend of A.M., sued the City of Houston. Williams later intervened in the suit.1 Appellees asserted a claim for negligence and alleged, among other things, that the City was vicariously liable for Schmidt's failure to properly proceed with "duty and care" through the intersection and failure to slow the fire engine as necessary for safe operation before proceeding through the red light. Appellees also asserted a claim for negligence per se, alleging that the City was vicariously liable for Schmidt's violations of the Transportation Code. Finally, appellees alleged that the City negligently trained, retained, and supervised its employees.
The City moved for traditional summary judgment, asserting that the trial court lacked jurisdiction over appellees' claims because the City had not waived its governmental immunity. The City made two arguments in support of its jurisdictional challenge. First, the City asserted that Schmidt was protected by official immunity, which preserved the City's governmental immunity. Second, and alternatively, the City argued that it was immune because the emergency response exception in the Texas Tort Claims Act ("TTCA") barred any possible waiver of governmental immunity. See Tex. Civ. Prac. & Rem. Code § 101.055(2). In support of its motions, the City included as exhibits an affidavit from Schmidt and an affidavit from HFD District Chief Deena Elliott. Schmidt attested among other things that: the call to which he responded was dispatched as an emergency call; he activated the fire truck's overhead lights and siren; as he approached the intersection of Fondren and Ludington, he "slowed down to clear the intersection"; he saw no cars on either side of the fire truck, and the cars across the intersection heading north on Fondren slowed or stopped to yield to the fire truck; and as he entered the intersection, Manning's vehicle crossed in front of the fire truck, he attempted to brake, but he could not avoid the impact. In Schmidt's opinion, his actions in driving toward the scene of the dumpster fire were both reasonable and proper under the circumstances, he considered both the risk of harm to others from the fire itself as well as risk of harm to others from his driving, and he believed that another firefighter under the same or similar circumstances could have believed that Schmidt's actions were justified based on his perception of the facts at the time and that the need to immediately reach the scene outweighed any minimal risk of harm to others from his driving.
Chief Elliott's affidavit is generally similar in substance to Schmidt's. Elliott, who investigated the incident for HFD, expounded on the nature of the emergency, explaining that the dumpster was near an apartment complex, the call was received at night when residents likely were sleeping, that there was a significant risk that residents would not be alerted to the danger of the dumpster fire, that Schmidt followed department policy by activating the truck's emergency lights and siren, that Schmidt slowed significantly as he neared the intersection, and that he attempted to avoid the collision. In Elliott's opinion, "another reasonably prudent engineer/operator, including herself, under the same or similar circumstances, could have believed that the need to quickly reach the incident scene outweighed any minimal risk of harm to others and that all Engineer/Operator Schmidt's decisions and action before the incident were justified and reasonable based on his perception of the facts at the time." Chief Elliott also expressed an opinion pertaining to the emergency response exception to immunity, but because the parties do not address the emergency response exception on appeal, we do not detail her opinion in that regard.
Appellees responded, arguing that the City did not retain its governmental immunity because Schmidt could be held liable for negligence under Texas law and that the TTCA's emergency response exception did not apply under these circumstances. In support, appellees included as exhibits: (1) HPD's accident and investigation report; (2) HPD "Event History Record" for the dumpster fire; (3) an audio recording of a caller reporting the dumpster fire to 911; (4) photographs of the accident scene; (5) a city ordinance setting the speed limit for Fondren Road; and (6) numerous video recordings of "bodycam" footage, recorded by HPD officers who responded to the accident. Relying on this evidence, appellees argued that Schmidt failed to exercise due care for the safety of others, ran the red light at Ludington Drive without slowing as necessary for safe operation, and endangered life and property by exceeding the speed limit as he ran the red light.
The trial court denied the City's motion. This interlocutory appeal followed.
Before addressing the merits, we first consider appellees' argument that we lack appellate jurisdiction over this interlocutory appeal. According to appellees, the City appealed the trial court's denial of its motion for summary judgment "pursuant only to Section 51.014(a)(5) of the Texas Civil Practice & Remedies Code." Section 51.014(a)(5) provides an avenue for interlocutory appeal when the trial court "denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state." Tex. Civ. Prac. & Rem. Code § 51.014(a)(5). Because appellees sued the City, not Schmidt individually, they say that section 51.014(a)(5) does not apply, and thus we lack jurisdiction.
It is true that the City's notice of appeal stated that it "desires to appeal the denial of its Motion for Summary Judgment pursuant to Civil Practice and Remedies Code § 51.014(a)(5)." However, a technical defect in the notice does not deprive this court of jurisdiction. See, e.g., Griggs v. Wood, No. 14-00-00226-CV, 2001 WL 987906, at *1 n.1 (Tex. App.—Houston [14th Dist.] Aug. 30, 2001, no pet.) (mem. op.) (citing Tex. R. App. P. 25.1(b)); see also GTECH Corp. v. Steele, 549 S.W.3d 768, 773 n.6 (Tex. App.—Austin 2018) (...
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