City of Pasadena v. Kuhn

• Decision Date: 29 May 2008
• Docket Number: No. 01-07-00812-CV.,01-07-00812-CV.
• Citation: 260 S.W.3d 93
• Parties: CITY OF PASADENA, Appellant, v. Roland C. KUHN, Appellee.
• Court: Texas Court of Appeals

260 S.W.3d 93

CITY OF PASADENA, Appellant, v. Roland C. KUHN, Appellee.

No. 01-07-00812-CV.

Court of Appeals of Texas, Houston (1st Dist.).

May 29, 2008.

Richard Risinger, Deputy City Attorney, Pasadena, TX, for Appellant.

Stephen T. Liss, Houston, TX, for Appellee.

Panel consists of Justices TAFT, KEYES, and ALCALA.

OPINION

EVELYN V. KEYES, Justice.

Appellant, the City of Pasadena (the "City"), challenges the trial court's order that denied its plea to the jurisdiction in favor of appellee, Roland C. Kuhn. In one issue on appeal, the City argues that the trial court erred in denying its plea to the jurisdiction.

We reverse and render.

Background

On March 22, 2004, Kuhn's vehicle collided with Officer Michael F. Matela of the Pasadena Police Department, who was driving an emergency vehicle to a house fire. Kuhn filed suit against the City and Officer Matela. The City answered and filed a plea to the jurisdiction. Kuhn filed an amended petition and a response to the plea to the jurisdiction. After a hearing, the trial court denied the City's plea to the jurisdiction and dismissed Officer Matela from the proceedings.

Plea to the Jurisdiction

A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of the action. See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). The standard of review of an order granting a plea to the jurisdiction based on governmental immunity is de novo. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). It is the plaintiff's burden to allege facts that affirmatively establish the trial court's subject matter jurisdiction. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). In determining whether the plaintiff has met this burden, we look to the allegations in the plaintiff's pleadings, accept them as true, and construe them in favor of the plaintiff. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). While we must construe the allegations in favor of the plaintiff, we are not bound by legal conclusions. Tex. Natural Res. & Conservation Comm'n v. White, 13 S.W.3d 819, 822 (Tex.App.-Fort Worth 2000), rev'd on other grounds, 46 S.W.3d 864 (Tex. 2001); Tex. Parks & Wildlife Dep't v. Garrett Place, Inc., 972 S.W.2d 140, 143 (Tex. App.-Dallas 1998, no pet.); Salazar v. Morales, 900 S.W.2d 929, 932 (Tex.App.-Austin 1995, no pet.). When deciding a plea to the jurisdiction, we must consider evidence "when necessary to resolve the jurisdictional issues raised." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000).

The Texas Supreme Court has explained the approach to be taken when a governmental entity challenges the jurisdictional facts and the scope of that entity's burden:

Then, in a case in which the jurisdictional challenge implicates the merits of the plaintiffs' cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists. The United States Supreme Court and all of the federal circuits have authorized federal district courts to consider evidence in deciding motions to dismiss for lack of subject matter jurisdiction. If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.

Miranda, 133 S.W.3d at 227-28 (internal citations omitted). The supreme court then stated, "We acknowledge that this standard generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c)." Id. at 228. The Texas Supreme Court recognized that the procedure in such situations parallels summary judgment practice. Id. The court explained, "By requiring the [governmental entity] to meet the summary judgment standard of proof in cases like this one, we protect the plaintiffs from having to put on their case simply to establish jurisdiction." Id. If there is no fact question on the jurisdiction issue, the trial court will rule on the plea to the jurisdiction as a matter of law. Id. at 227-28. Likewise, reviewing jurisdictional determinations may require appellate courts to examine the evidence supporting a claim in the same de novo manner it reviews a summary judgment. Id. at 228.

Governmental Immunity

In its sole issue, the City asserts that Kuhn's suit is barred by the principle of governmental immunity and that Kuhn has not pleaded sufficient facts to overcome this immunity.

Governmental immunity protects political subdivisions of the State from suit, unless immunity from suit has been waived. See Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.2001). Governmental immunity inures to the benefit of a municipality insofar as the municipality engages in the exercise of governmental functions, except when that immunity has been waived. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex.2000).

Governmental immunity from suit defeats a trial court's subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Generally, a party suing a governmental entity must establish consent to sue, which may be alleged by reference either to a statute or to express legislative permission. See Mo. Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 814 (Tex.1970). The Texas Tort Claims Act (the "Act") waives immunity from liability and suit in a number of circumstances. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021-.025 (Vernon 2005). However, the Act also includes a subchapter entitled "Exceptions and Exclusions" listing circumstances in which its waiver provisions do not apply. See id. §§ 101.051-.066.

Kuhn's original petition alleged that the City and Officer Matela were liable pursuant to section 101.021 of the Act, which provides that a governmental unit is liable for personal injury arising from the operation of a motor vehicle that is proximately caused by the wrongful act of an employee acting within the scope of his employment.¹ See TEX. CIV. PRAC. & REM.CODE ANN. § 101.021 (Vernon 2005). Kuhn alleged that the City and Officer Matela waived their immunity pursuant to section 101.025 of the Act, which provides that a governmental unit may be sued for damages allowed by the Act.² See id. § 101.025 (Vernon 2005). However, an exception in section 101.055(2) of the Act governs emergency situations:

This chapter does not apply to a claim arising ... from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others ....

Id. § 101.055(2) (Vernon 2005) (emphasis added). Finally, section 545.156 of the Transportation Code provides that, on the immediate approach of an emergency vehicle using audible and visual signals, an operator, unless otherwise directed by a police officer, shall yield the right-of-way, immediately pull over to the of the roadway clear of any intersection, and stop and remain standing until the emergency vehicle has passed.³ See TEX. TRANSP. CODE ANN. § 545.156 (Vernon 1999).

In his amended petition, Kuhn alleged,

[T]he actions of Officer Matela [were] reckless. The act of entering a blind intersection at a high enough rate of speed to be unable to stop his vehicle or avoid an accident with [Kuhn's] vehicle carries a high degree of risk of serious injury. These facts are bolstered by the outcome of this accident. [Kuhn] suffered severe and permanent injury requiring at least one surgery. Said acts are in direct violations of Transportation Code [section] 545.156(b) in that the officer failed to give due regard for the safety of [Kuhn]. These actions were a proximate cause of the damages suffered by [Kuhn].

The City's plea to the jurisdiction argued that the City maintained its immunity from suit because Kuhn did not plead or prove that Officer Matela's actions were reckless.⁴ In his response to the City's plea, Kuhn attached photographic evidence to show that the intersection where the accident occurred was "blind" from Officer Matela's and Kuhn's standpoint. Kuhn stated, "There is a hedge row, a building, a marquee, as well as parked cars in the lot on the corner. As the series [of pictures] progress, it becomes clear that the cross street is blind until just before the intersection." Kuhn argued, "Obviously when an emergency vehicle proceeds through an intersection on a red light, there is the potential for a collision with a vehicle crossing the intersection on the green light." He stated,

A police officer responding to an emergency at a rate of speed of at least 40 miles per hour, attempting to cross an intersection on a red light either knows, or certainly should know of the high degree of risk of serious injury if he has an accident with a vehicle traveling across his path at 40 miles per hour. This is especially true on a blind intersection.

Kuhn's response also emphasized that the intersection was not a "right angle" intersection, and, therefore, "The configuration of this intersection is dangerous and certainly dangerous to enter through a red light at a high rate of speed."

Kuhn also argued that, because Officer Matela claimed that he slowed and stopped before entering the intersection, he must have been reckless because "[i]f the officer stopped his vehicle and then accelerated to a speed capable of causing the damage as...