City of El Paso v. Kolster

• Decision Date: 19 September 1996
• Docket Number: No. 08-95-00220-CV,08-95-00220-CV
• Citation: 931 S.W.2d 365
• Parties: CITY OF EL PASO, Appellant, v. Willette L. KOLSTER, Appellee.
• Court: Texas Court of Appeals

Page 365

931 S.W.2d 365

CITY OF EL PASO, Appellant, v. Willette L. KOLSTER, Appellee.

No. 08-95-00220-CV.

Court of Appeals of Texas El Paso.

Sept. 19, 1996.

Rehearing Overruled Oct. 16, 1996.

David C. Caylor, City Attorney, Daniel H. Hernandez, Assistant City Attorney, John Gates, Assistant City Attorney, El Paso, for Appellant.

Dudley R. Mann, El Paso, for appellee.

Before LARSEN, McCLURE and CHEW, JJ.

OPINION

LARSEN, Justice.

The City of El Paso appeals a judgment, following jury trial, awarding plaintiff Willette Kolster $68,439.75. The City claims that it established, as a matter of law, its affirmative defense of sovereign immunity and that the trial court erred in not granting its motion for directed verdict, motion for judgment n.o.v., and motion for new trial based upon that defense. We reverse and render.

FACTS

On February 7, 1991, Dawn Sloan was an Emergency Medical Service driver employed by the City of El Paso. En route to an emergency call around 5 p.m., she and her partner, Janet Perez, drove their ambulance to the corner of Zaragosa Road and Alameda Street, an intersection controlled by traffic lights. Their emergency lights and siren were operating. As they approached the intersection, they changed the pitch of their siren to "yelp" or "wail" mode, slowed, and stopped. The ambulance had the red light. Sloan, the driver, allowed several automobiles with the green light to clear the intersection, then believing all traffic had seen and heard the emergency vehicle, proceeded against the light. There was some evidence that at the moment Sloan entered the intersection, a call came over the ambulance radio asking for the unit's estimated time of arrival at the emergency site. Although Perez responded to the inquiry, this call may have momentarily diverted the driver's attention. There was also evidence that Sloan had a restriction on her driver's license at that time, requiring that she wear corrective lenses. She testified that this restriction resulted from a misunderstanding, however, that she needed glasses only for reading and other close vision, and that the restriction had been removed from her license when she next renewed her license and took an eye exam. It was uncontroverted that Sloan was not wearing corrective lenses at the time of this accident.

Plaintiff, Willette Kolster, driving with her windows up and radio on, neither heard the siren nor saw the ambulance and entered the intersection with the green light, striking the ambulance on its left front panel. Sloan testified that as they went to Ms. Kolster's aid after the collision, Kolster told them "I didn't see you." There was conflicting evidence as to whether obstructions existed which prevented Kolster from having a clear view of the intersection. Kolster was injured and her car was a total loss. She sued the City under the Texas Tort Claims Act.

After a lengthy trial, ¹ a jury found the City 55 percent negligent in causing the accident and Kolster 45 percent negligent. The court entered judgment for plaintiff. In this appeal, the City urges that it was entitled to judgment because it proved, as a matter of law, compliance with the relevant statutory provisions requiring that an emergency vehicle driver exercise "due regard for the safety of all persons." The City claims that under these facts, plaintiff could not defeat its affirmative defense of sovereign immunity. We agree with the City.

STANDARD OF REVIEW

The City urges that it was entitled to instructed verdict, judgment n.o.v., or new trial because it had established the affirmative defense of sovereign immunity as a matter of law. In reviewing these claims, we apply a legal sufficiency standard of review. Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 650 (Tex.1976). That is, we consider only the evidence and inferences that tend to support the jury's findings and disregard all evidence and inferences to the contrary. Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 287 (Tex.1994); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). If there is more than a scintilla of evidence to support the questioned finding, the point fails. U.S. Fire Ins. Co. v. Ramos, 863 S.W.2d 534, 538 (Tex.App.--El Paso 1993, writ denied); Worsham Steel Co. v. Arias, 831 S.W.2d 81, 83 (Tex.App.--El Paso 1992, no writ); Fuentes v. McFadden, 825 S.W.2d 772, 775 (Tex.App.--El Paso 1992, no writ). Where the moving party relies upon an affirmative defense to establish entitlement to judgment as a matter of law, each element of that defense must be so conclusively established that reasonable minds could not differ as to the truth of its controlling facts. Watts v. St. Mary's Hall, 662 S.W.2d 55, 59 (Tex.App.--San Antonio 1983, writ ref'd n.r.e.). Thus, in order to obtain a reversal here, the City has the heavy burden of showing that plaintiff established no fact question regarding the ambulance driver's breach of her statutory duty to drive with due regard for the safety of all persons.

Sovereign Immunity

The City of El Paso is a governmental unit generally immune from tort liability except where that immunity has been specifically waived by the legislature. The Texas legislature has waived such immunity in certain limited circumstances, including:

(1) 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 ANN. § 101.021 (Vernon 1986).

A governmental unit specifically retains its immunity, however, in claims arising from:

[T]he action of an employee while responding to an emergency call ... if the action is in compliance with the laws and ordinances applicable to emergency action.... TEX.CIV.PRAC. & REM.CODE ANN. § 101.055(2) (Vernon 1986).

The law applicable to the ambulance driver here, who was responding to an emergency call and who was using all audible and visual signals (sirens and flashing lights) necessary to invoke the emergency provisions, is:

(c) The driver of an authorized emergency vehicle may:

. . . . .

2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

. . . . .

(e) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his [sic] reckless disregard for the safety of others. TEX.REV.CIV.STAT.ANN. art. 6701d, § 24 (Vernon 1977) [emphasis added].

Relevant traffic regulations also provide:

(a) Upon the immediate approach of an authorized emergency vehicle making use of audible and visual signals meeting the requirements of Section 124 of this Act, ...

1. The driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle has passed....

(b) This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway. TEX.REV.CIV.STAT.ANN. art. 6701d, § 75 (Vernon 1977) [emphasis added].

There is no dispute that Dawn Sloan complied with state law requiring her to slow as necessary before entering an intersection against the red light. This, the City maintains, is sufficient to establish immunity as a matter of law. We disagree that our inquiry ends there. The applicable laws also required that Ms. Sloan exercise "due regard for the safety of all persons." Our inquiry therefore, is twofold: (1) what does "due regard for the safety of all persons" mean; and (2) does the record contain more than a scintilla of evidence that Ms. Sloan did not exercise such due regard upon entering the intersection of Alameda Street and Zaragosa Road.

Due regard

Neither statute nor case law contains any definitive statement on the meaning of "due regard." A number of cases seem to equate the phrase with ordinary care, and indicate that lack of due regard is established under the common-law test for negligence. See City of Amarillo v. Martin, 912 S.W.2d 349, 353 (Tex.App.--Amarillo 1995, no writ) (opinion on motion for rehearing) ("careful analysis of recent cases implicitly examines due regard under an ordinary negligence standard of care.... we ... find no justification for ignoring the import of existing case law, which addresses...