Green v. Alford

• Citation: 274 S.W.3d 5
• Decision Date: 15 July 2008
• Docket Number: No. 14-05-00407-CV.,14-05-00407-CV.
• Parties: Christopher GREEN, Appellant, v. Dwainia ALFORD, Individually and as Next Friend of Aaron Alford, and Ronald Alford, Appellees.
• Court: Court of Appeals of Texas

274 S.W.3d 5

Christopher GREEN, Appellant, v. Dwainia ALFORD, Individually and as Next Friend of Aaron Alford, and Ronald Alford, Appellees.

No. 14-05-00407-CV.

Court of Appeals of Texas, Houston (14th Dist.).

July 15, 2008.

Rehearing Overruled November 20, 2008.

William S. Helfand, Kevin D. Jewell, Roger D. Townsend, Norman Ray Giles, Houston, for appellant.

Randall O. Sorrels, Raul Herman Suazo, Nicole Perdue, Bruce E. Ramage, Clyde James Jackson III, Kevin Graham Cain, Dale Jefferson (Intervenor), Houston, for appellees.

En Banc Court consists of Chief Justice HEDGES, Justices YATES, ANDERSON, FOWLER, FROST, SEYMORE GUZMAN, BROWN and BOYCE, and Senior Justice HUDSON.^*

MAJORITY OPINION ON EN BANC REHEARING

EVA M. GUZMAN, Justice.

We grant Ronald and Dwainia Alford's motions for rehearing en banc, withdraw our opinion and judgment of March 27, 2007, and issue the following majority opinion on en banc rehearing and accompanying judgment in its place.

This case arises from a traffic accident in which a fire truck collided with another vehicle, causing Ronald Alford to sustain a broken neck and causing permanent neurological damage to his nine-year-old son, Aaron. The trial court found that Christopher Green, the firefighter driving the truck, acted recklessly and was not entitled to official immunity or limitation of liability. Green asks us to reverse the judgment against him, arguing that there is legally and factually insufficient evidence that he acted recklessly and that his actions were not performed in good faith. In the alternative, he raises a matter of first impression, arguing that damages are statutorily limited to $100,000 because he is insured by a policy purchased by the City of Pasadena, despite the fact that coverage is subject to a $100,000 self-insured retention. We conclude that (a) Green failed to establish he was acting in good faith at the time of the accident, (b) legally and factually sufficient evidence supports the trial court's finding that Green acted recklessly, and (c) the damage cap set forth in section 108.002 of the Civil Practice and Remedies Code does not apply to these facts. We therefore affirm the trial court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Uncontested Facts

At approximately 5:15 p.m. on August 30, 2002, Christopher Green, a volunteer firefighter for the Pasadena Volunteer Fire Department, received notice that an automatic fire alarm had been activated. He arrived at the fire station in fewer than five minutes and waited for additional firefighters to arrive before responding to the alarm. Green and the other firefighters then departed on Engine 81, an eight-person fire truck, which, including the firefighters, weighed 39,500 pounds. In the intersection of Jana Lane and westbound Fairmont Parkway, the fire truck collided with a pickup truck occupied by three members of the Alford family. The collision propelled the pickup truck diagonally across the intersection where it crashed into the utility pole supporting the traffic lights. Dwainia Alford suffered comparatively minor injuries, but Ronald sustained a broken cervical vertebrae. Nine-year-old Aaron was the most severely injured; he remained in a coma for twelve days and suffered severe neurological trauma from his head injuries.

On October 18, 2002, Dwainia Alford, acting in her individual capacity and as Aaron's next friend, sued Green for damages stemming from the accident. Ronald Alford intervened. Following a nonjury trial, the trial court entered judgment against Green for an amount in excess of $1.5 million. The trial court made specific findings of fact and conclusions of law holding that Green engaged in reckless conduct and was not entitled to official immunity because he was not acting in good faith at the time of the accident. The trial court's ruling was based on the contested evidence summarized below.

B. Fact Witnesses

1. Appellees Ronald and Dwainia Alford, Pickup Truck

Ronald Alford testified that immediately before the accident, he was driving in the northernmost lane of westbound Fairmont Parkway with his wife and son. He stated that his radio was off, and the traffic light facing him at Jana was red, but it turned green as he slowed to approach the intersection. According to Alford, he looked to his right and left, saw that the cross-traffic was stopping, and entered the intersection at approximately 30 miles per hour. He stated that he "just caught a flash of [the fire truck] out of ... the corner of [his] eye" before the fire truck struck his vehicle in the middle of the driver's side. Dwainia Alford testified that traffic to the left of the pickup obscured her vision, but she never heard a siren or horn before the impact.

2. Appellant Christopher Green and Richard Lawhorn, Fire Truck

Green testified that he activated the fire truck's emergency lights and siren before he left the fire station, and as he turned north on Jana, he began to periodically sound his horn. Volunteer firefighter Richard Lawhorn, who was riding in the front passenger seat beside Green, similarly testified that the fire truck's lights and siren were on. Green stated that he drove at no more than 30 miles per hour,¹ and as he neared the intersection of the westbound lanes of Fairmont Parkway, the traffic light facing him was red. Green testified that he slowed and looked to his right, saw that traffic in the first two lanes was stationary, and saw no traffic in the third lane. Lawhorn testified that he, Lawhorn, could not see the third lane of Fairmont due to the heavy traffic, which was backed up nearly to the next intersection. Lawhorn leaned forward to put on his jacket² while Green entered the intersection at a speed that Lawhorn estimated to be no more than 20 to 25 miles per hour. According to Green, "After I saw that there was two lanes of traffic stopped, didn't see the third and started to proceed through that—that lane those three lanes and had the accident." Green further stated that his speed was no more than 10 miles per hour.

Although Green testified that he drove slowly enough to stop before hitting any vehicle he observed entering the intersection, he also stated that he did not know how to calculate braking distances and would defer to the Alfords' expert, Richard Schlueter, on that subject.³ Green further agreed that other drivers truthfully testified that he could not react quickly enough to avoid the accident at the speed he was traveling, and the fire truck's speed made it "impossible to stop."

Green did not see the Alfords' pickup before the impact. He did not recall if there were trucks in the first two lanes that could have impaired his view of the far lane but testified that he could not rule out that possibility. He also did not know if Lawhorn blocked his view while putting on a jacket. Green agreed, however, that if a firefighter "could not see the third lane of traffic," the correct approach would be "to stop before proceeding through the intersection." According to Lawhorn, Green should have known there was "a substantial certainty" that if a smaller vehicle collided with Engine 81, there was "a high degree of risk of serious injury."

3. Bystanders

Nine other drivers or bystanders testified at trial. Most of these fact witnesses testified that the fire truck's emergency lights were on, and none testified that the emergency lights were off. One witness could not recall if she heard a siren, and the remaining eight were evenly divided as to whether the siren was activated. Four witnesses also testified that Green sounded his horn, but several others denied hearing a horn. Invoices for repairs to the fire truck indicate that its air horns were replaced after the accident.

Several of these witnesses also estimated Green's speed just before the accident. Josef Wells stated that he did not see the fire truck brake as it entered the intersection at 20 to 30 miles per hour. Glenn Daley also testified that he did not see the fire truck slow down or see its brake lights activate, and he estimated the fire truck's speed at 30 miles per hour. Douglas Lowther estimated the fire truck's speed at 25 to 30 miles per hour, and James Vaught placed its speed at no more than 30 miles per hour. According to Victor Lucero, the truck "zoomed right through" the intersection at 40 to 50 miles per hour. Jamie Faulkner did not estimate the fire truck's speed, but testified that it approached "very fast" and did not slow or stop before entering the intersection.

C. Expert Witnesses

1. Dr. Mark Mayo, Bayshore Eye Associates

Since 1995, Dr. Mark Mayo has treated Green for keratoconus, a progressive eye disease that weakens the cornea and causes it to develop irregular curvatures. Such curvatures can cause blurring and decreased distance vision and affect a person's ability to drive. When Green first became a patient, his keratoconus was between mild and moderate in severity, and his vision was correctable with glasses "to a fairly high level." In 1997, however, Green reported that he had failed a vision test necessary for a driver's license, and Green's lens prescription was changed.

In November 2001, nine months before the accident, Green complained to Mayo of decreased distance vision. Tests showed that Green's vision had worsened, and medical records indicate that Green "did not want contact lenses because of his job as a firefighter." According to Mayo, "any activity in which [Green] was looking into the distance would be affected without correction." Although Green's visual acuity was becoming progressively worse, Mayo stated that at the time of the accident, Green's "visual acuity with glasses was sufficient to drive an automobile." Within four months of the accident, however, Green's vision was so poor he had difficulty watching television.

2. Jerry Gardner, Chief of the City of Pasadena Fire Department

Chief Gardner testified that firefighters must comply with state...