A FF1 RNI: Opinion ssued December 4. 201 2.




                                               in The
                                 Qttnirt 01 App rats
                         Fift1! Di5trirt tf Irxas at Ja1La
                                       No. O5-12-00430-CV


                                KAUFMAN COUNTY, Appellant

                                                 V.

                             ClIRISTOPII lR LECGI’I’T, Appellee


                       On Appeal from the 422nd Judicial District Court
                                   Kaufman County, Texas
                              Trial Court Cause No. 81109-422


                                           OPINION
                           Before Justices Morris, Francis, and Murphy
                                   Opinion By Justice Murphy

        Kaufluan County appeals the trial Court’s interlocutory order denying its plea to the

jurisdiction in Christopher Lcggett’s suit for personal injuries. We affirm.

                                         BACKGROUND

       Leggett sued the County after sustaining injuries when Sergeant Richard Gaddis, a Kaufman

County sheriff’s deputy. “rear-ended” Leggett’s motorcycle with his patrol car during a traffic stop.

The collision occurred the morning of October 24. 2OO. Gaddis was on his way to work, driving

an unmarked patrol car on Highway 175, At one point, Gaddis looked in his rear-view mirror and

saw two or three cars swerving to get out of the way of a motorcycle that was coming up from

behind. Leggett was the (Iriver of the motorcycle. According to Gaddis, Leggett was “driving crazy”
and ‘‘11 ing up” on ( addis. who was driving a speed consistent with the flow of traflic. (iaddis

t.   -i im ikd I   jti   i   di i   104   1 ij lol   I   Ixici   th in 70 mi ls pu houi

            As I eggett passed, Gaddis turned on his emergency lights to get Leggett’s attention; Gaddis

believed “[sjomebody needs to slow this guy down.” The emergency lights on Gaddis’s unmarked

police vehicle were located in the front headlights and flashed on and off when activated. Gaddis’s

vehicle also had a red and blue shining light located inside the vehicle just above the rear—view

mirror. [lix vehicle did not have a siren or other markings that would identify it as a police unit.

When he turned on his emergency lights, Gaddis did not believe Leggett saw them or knew Gaddis

was behind him because Leggett “was driving so fast.” Gaddis then sped up, going as fast as 107

miles per hour, to catch up with Leggett. Gaddis also called for assistance from another law-

enforcement agency.

            Around the same time, Leggett looked back and saw that Gaddis was trying to pull him over.

Leggett noticed Gaddis was approaching him “at a htirly high rate of speed’ and “gaining on [him]

very fast.” Leggelt realized he needed to stop and signaled to Gaddis with his hand that he was

pulling over. Leggett slowed down in the right-hand lane and moved off the road onto the shoulder

at the same time, “[j]ust like your normal traffic stop.” As Leggett was coming to a stop and putting

his kick-stand down, Leggett heard “screaming tires” and saw Gaddis “barreling” toward him.

Leggett tried to    mOVC oUt   of the way, but he did not have enough time. Gaddis’s vehicle hit the rear

of Leggett’s motorcycle. Leggett was thrown off his motorcycle and landed face down in a ditch.

Gaddis’s vehicle left skid marks measuring ninety-eight feet.

           Leggett tiled suit against the County, seeking damages for injuries he sustained in the

collision. He did not seek damage to his motorcycle because the County resolved that claim.

Leggett alleged Gaddis’s conduct of traveling at an excessive rate of speed before colliding with
I cegett’s motorcycle was “not only negliuent” but also “extremely daimerous. reckless and grossly

negligent.’   lie further ailcued ( taddiss conduct violated internal policies for the operation of a

patrol unit and was such that no objectively reasonable police olhccr could have believed such

conduct was lawful.

        The County filed a plea to the jurisdiction, arguing the trial court did not have jurisdiction

of the case because the Texas lort Claims Act’s (TTCA) statutory exception for emergencies

applied, overriding any waiver of its governmental immunity from suit. In response, Leggett argued

the statutory exception did not apply because the evidence (I) showed Gaddis was engaged in a

routine traffic siop, not an emergency situation, and (2) raised a fact issue as to whether Gaddis’s

actions were reckless. In support. Leggett attached excerpts from his and Gaddis’s depositions as

well as a document containing portions of the County’s policies and procedures related to the

operation of police vehicles and pursuits. The trial court held an evidentiary hearing, during which

Leggett and two other witnesses testified. Other documents, including photographs of the scene,

affidavits of a witness and the investigating othcer, and the complete transcript of Leggett’s and

Gaddis’s depositions, were admitted as evidence. Afier allowing the parties to submit post-hearing

letter briefs, the trial court signed an order denying the County’s plea without specifying the basis

for the denial, The County filed this interlocutory appeal. See TEX. Civ. PRAC. & REM. CODE ANN.

§ 51.014(a)(8) (West 2008).
                                      LEGAL STANDARDS

       Immunity from suit defeats a trial court’s subj ect-matter jurisdiction and is properly asserted

in a plea to the jurisdiction. Tex. Dep’t ofParks & Wildlik v. Miranda, 133 S.W.3d 217, 225—26

(Tex. 2004). Whether a court has subj ect-matterjurisdiction and whether a plaintiffhas alleged facts

that affirmatively demonstrate a trial court’s subject-matter jurisdiction are questions of law. Id. at




                                                 —3—
22(: I’erc   i’.   Citi’ ,f 1)ullas.   ISO S.W.3d 906, 909 (Tex. App.    I )all.is 2005, no pet.). We therefore

review de novo a trial courts nil ing on a )unsdictional plea. Miranda, I 33 S.W.3d at 226; (‘liv of

t)allt,s v. uIuriu”c 344 S.W.3d 549. 553 (Tex. App. Dallas 2011, no pet.).

        A governmental unit’s jurisdictional plea can be based on the pleadings or on evidence.

Miranda, 133 S.W.3d at 226; Bland Indep. Sch. 1)1st.            V.   Blue, 34 S.W.3d 547, 555 (Tex. 2000).

When a plea to the urisdietion challenges the pleadings, we look to whether the plaintilihas alleged

facts that aflirmatively demonstrate the trial courts jurisdiction to hear the case. Miranda, 133

S.W.3d at 226 (citing Tex. Ass ‘a o/Bus. v. Tex. Air Contra! Ba’.. 852 S.W.2d 440,446 (‘Fex. 1993)).

We liberally construe the plaintifts pleadings in favor ol jurisdiction, and we look to the plaintiff’s

intent, accepting as true the facts alleged, Id. at 226, 228.

        When a plea challenges the existence of jurisdictional facts, we must consider relevant

evidence submitted by the parties to resolve the jurisdictional issues. Id. at 227; Hughes, 344

S.W.3d at 553. In reviewing such a plea, we take as true all evidence favorable to the nonmovant,

indulging every reasonable inference and resolving any doubts in the non—movant’s favor. Miranda,

1 33 S.W.3d at 22728. This standard mirrors our summary-judgment standard under Texas Rule

of Civil Procedure I 66a(c) and places the burden on the governmental unit, as movant, to meet the

standard of proof to support its contention the trial court lacks subject-matterjurisdiction. ld. at 228.

Once the governmental unit asserts and provides evidentiaty support for its plea, the plaintiff is then

required to show only that a disputed fact issue exists. lcL; City of Dallas       i   Heard, 252 S.W.3d 98,

102 (Tex. App.—Dallas 2008, pet. denied).                If the evidence creates a fact question on the

jurisdictional issue, the trial court cannot grant the plea; rather the fact issue is for the fact finder to

resolve. Miranda, 133 S.W.3d at 227—28. if the relevant evidence fails to raise a fact question or

is undisputed on the jurisdictional issues, the trial court rules on the plea as a matter of law. Id. at




                                                        -4-
                                                                        \I’I9 I( BI I I .W

                    ‘    i iii       it      umm         IR pi itec Is pi       dii wal siihd I \        Isions Ott             he       t,iI’ ii wl udiiw      counties. I         r ii

         mlii il’iiitv              ‘      I/cl/H        I ‘uii                            o   ç.\\    d     O             X (       I   ‘\
                                                                                                                                                )flo) 1    )‘U/c           t\ ( l\


I                  ii         (     ii     \r—.’.        1I)I_(tl)lt     l<I           \\st                  (tl      t     (ili__’Iiiiiii’           ))\eiiiiilclIt,iI     11111    cl




include political \uhch\ isiousol thestale, inclndmgcounties_ Immunity is \al\ed under the                                                                                     1( \

hfl\\   ‘\   er.    hI        lami        HI Ill’        HI)   tIlc    )jh’i   at   III)   II (IL      ‘I i 1111 ch   ii    dii           H \   chic Ic lc\ a ‘‘o\     I   unwiWii

(lull         lilpt\cc.                   Ii \.( \                    •.S RI \L( I)i A\\. IttLul( I )t.\)(\’ve’1 OI I )

 huH/lU) i              I/oilman. 201 S \V.3d C’6i (71 ( I cx. 200tc).                                            ( ertam                       pilulls     to thai aiver           01


1HHIIHIHI\             !ll\                   c          c/H /c///l       Ii    \. ( R.          Pi’               Ri      \I     t Hill          \               ui

(‘‘I selusiun and l\ecptiOfl ). AflIOifl’ those e\ceptions                                                   Is   section ItO .U.). hich                           Pi1’Se1\          a

oemnmentaI ummts immunity br claims ansm Iroimi the actions olan employee responding to m

clue         ene call             ol le,wtnl        lu    rn c’lner’ene\ itiiitmun.                     Id         101 1
                                                                                                                       .h.L
                                                                                                                       )  .                       lw c’inplo\ee        ‘   aeliuu’

under these circumstances must he in compliance x ith the laws and ordinances appl icahie to

emcrecncv act ion, or in the ahsence oF such law, the actions lutist not he taken with conscious

mdillerenc e             ot       reckless clisrei’aid or the simIt\ ol’ others. Id. Vvhen the                                                        e\cept ion applies, tile


iT( ‘A is          unavailahic as a                 aiver      ol’ immunity even I’ the Facts other wise liiI I v ithin a wai\ er lound

in sect ion Ii) I .1)21                      Ilailnuin, 21)1 S.W.3d at 67 1 72.

              I lie la\\ s         applicable       to emergency actions are Found                            in   the I         exas         I u’anspor(atiun ( ode. I or

example. an              operator         ol an emergency vehicle may                            engage       in certain permissible conduct, such as

exceedint!          the inaxi        mum speed limit                   hen responding to an                   emergency                   call   or pursuing       an actual        or


Suspecte(I         ‘   ioiatoi ot the lav .3c’e It \. ‘IR \!‘sSI’. C( )t N.                             ANN.               )46.00 l(3 ). 5 4(i.002( b )( .2) ( \Vest

2011). 1 his conduct is pennissible as long as the operator does not endanger life or property, and
he must operate his vehicle “with appropriate regard lbr the saftty ofall persons.” hi.      546.001(3),

546.005(1). The operator of an emergency vehicle is not relieved of the “consequences of reckless

disregard for the safety of others.” 1(1.   § 546.005(2); see aLco Smith v. Janda.   126 S.W.3d 543, 545

(Tex. App.-- San Antonio 2003, no pet.). ‘thus, under section 546.005, those who respond to

emergency calls in authorized emergency vehicles, which include police vehicles, are subject to

liability if their conduct is reckless. TEx. TRANsP. CoDE ANN.       §   546.0O5(; C’ity of Pasadena v.

Belle, 297 S.W.3d 525, 534 (‘Fex. App.—1 louston [14th I)ist.J 2009. no pet.). To establish liability

in this context, a plaintiff must show that the operator “committed an act that [he] knew or should

have known posed a high degree of risk of serious injury.”      city o/Amariilo v. Martin, 971   S.W,2d

426, 430 (Tex. 1998).

         In the absence of applicable laws, immunit is waived if the operator acted with “conscious

indifference or reckless disregard for the safety of others.” ‘FEX. Civ, PRAC. & REM. CODE ANN.       §
101.055(2). The TTCA does not define the terms “conscious indifference” or “reckless disregard.”

In 1-lariman, however, the ‘lexas Supreme Court looked to the ordinary meaning of the terms and

noted that the terms have been interpreted to “require proof that a party knew the relevant facts but

did not care about the result.” Hartman, 201 S.W.3d at 672 n.19. In assessing the operator’s

conduct, we may not engage in judicial second-guessing for momentary lapses in judgment by

emergency personnel responding to emergency situations.” .Je/fi’rso,i C’ntv. v. Hudson, No. 09-11-

00168-CV, 2011 WL 3925724, at *3 (Tex. App.—Beaumont Aug. 25, 2011, no pet.) (mem, op.);

cf   Martin, 971 S.W.2d at 430 (noting “reckless disregard” test under transportation code not

satisfied with proof of ordinary negligence or momentary lapses ofjudgmcnt).

                                               ANALYSIS

        The County contends in two issues that the trial court erred by denying its plea to the




                                                   —6—
jurisdiction because   it   retained its immunity from suit pursuant to the emergency exception ot the

TTCA. The County raised the emergency exception in its plea, arguing immunity is not waived

under the TTCA because Leggett’s claims “arise from an emergency response” and Leggett cannot

meet his burden to present jurisdictional evidence to raise a material fact       queStion   as to whether

(iaddis’s actions were reckless, The County did not challenge Leggctt’s pleadings in its plea, hut

it argues on appeal that the “nature of a plea to the jurisdiction itself” is a challenge to the sufficiency

of the pleadings because a plaintitI bears the burden to set forth allegations establislung a valid

waiver of immunity. The County argues Leggett “fail[edj to allege an actionable claim within a

waiver of immunity.” Although we have said we have no jurisdiction in an interlocutory appeal to

“consider issues that are outside the plea to the jurisdiction that was filed,” Heard, 252 S.W.3d at

I 04, recent authority from the Texas Supreme Court suggests that we are not precluded from

addressing this argument. See, e.g., Rusk State Hosp. v. Black, No. 10-0548, 2012 WL 3800218, at

*6 (Tex. Aug. 31, 2012) (holding that “if immunity is first asserted on interlocutory appeal, section

51.014(a) does not preclude the appellate court from having to consider the issue at the outset in

order to determine whether it has jurisdiction to address the merits.”). We therefore address the

County’s contention related to Leggett’s failure to allege a waiver of immunity in his pleading.

        There appears to be no serious dispute about whether Leggett’s allegations establish a waiver

of immunity tinder section 101.02 1. Leggett alleged he received personal injuries arising from the

operation or use of a county vehicle by a county employee. And in its plea, the County agreed

Leggett sued the County for Gaddis’s conduct, “alleging sovereign immunity is waived” under

section 101.021(1).




                                                   —7--
        Leggett’s pleading also included allegations that Gaddis ‘s conduct was reckless under the

carcumstanccs Spcafacally Leggett allcgLd he was driving his motorcycle on the highway when

Gaddis pulled him over, After Leggett pulled his motorcycle to the shoulder, Gaddis, whom Leggett

asserted was traveling at an excessive rate of speed, collided with Leggett’s motorcycle. Leggett

alleged this conduct was not only negligent but also extremely dangerous, reckless, and grossly

negligent. Leggett also alleged Gaddis’s conduct was in violation of department policies for the

operation of patrol units and was such that no reasonable officer would have believed such conduct

was lawful under the circumstances and in light of established law and “information held by          Sgt.
Gaddis at the time of the occurrence,” Leggett listed nine “particulars” in which Gaddis was

negligent, reckless, and grossly negligent, including Gaddis’s failure to comply with traffic stop

policies, control his vehicle, maintain a safe distance between the patrol vehicle and the vehicle in

front of him, timely apply his brakes, and turn to avoid the collision. Leggett further alleged Gaddis

was driving at a greater rate of speed than a person using ordinary care would have driven. Leggett

asserted the County, through its employee, had awareness of the risk involved, but “nevertheless

proceeded with conscious indifference to the rights, safety and welfare of [Leggettj and others,”

When we construe Leggett’s pleadings liberally, as we must, we conclude Leggett alleged sufficient

facts to establish a waiver of immunity under section 101.021 as well as the non-applicability of the

emergency exception. Miranda, 133 S.W.3d at 226.

        In response to the County’s arguments on appeal, Leggett does not assert the County failed

to support its contention that the trial court lacks subj ect-matter jurisdiction or otherwise assert the

County failed to meet its burden of proof. The question before us then is whether Leggett raised a
fact question that the actions taken by (iaddis were not taken in response to an emergency, or were

reckless. See h’v. Dep    ‘1   of Pith. 5z/etr r. Little,   25k)   S.W .3d 236, 2340 ([cx. App.—4 louston

[14th Dist j 2008 no pet) see also Jlanman 201 S W 3d at 672                       We express no opinion as to

whether Gaddis was responding to an emergency situation because having reviewed the evidence

submitted as part of the jurisdictional proceedings, we conclude Leggett met his burden to raise a

gcnuin.. issue of m itcri I I ict that Gaddis s actions in     ii ir1g to   stop Lcggctt lfl(l thcn cOl1id1flL with

Leggett’s motorcycle were reckless. See Hudson, 2011 WL 3925724, at *4

        To raise a fact issue on whether Gaddis’s actions were reckless, Leggett relies on evidence

showing that despite Gaddis’s training. Gaddis used “excessive” speed in trying to stop Leggett and,

knowing Leggett would stop as soon as he saw Gaddis. was unable to control his speed when Leggett

did pull over. Gaddis specifically testified he reached a speed of 107 miles per hour (in a 65 mile

per hour zone), which Gaddis conceded was “unsafe” under the circumstances. The circumstances

included the flict that he was in an unmarked police vehicle. Gaddis testified that when he is

engaged in a traffic stop while driving an unmarked vehicle, one concern is that the other vehicles

on the road need to be aware he is there. Gaddis added that he knew it can take the person being

stopped longer to recognize he is being pulled over. Gaddis stated his only reason for stopping

Leggett was because Leggett was speeding. Gaddis had not observed Leggett hitting another vehicle.

Nor did Gaddis consider this to be a “pursuit”: that is, he did not believe Leggett was fleeing from

law enforcement or otherwise engaged in evasive action.

       When Leggett began to slow down and pull onto the shoulder, Gaddis was between sixty and

100 feet behind Leggett. Gaddis testified he was close enough to tell Leggett was “definitely slowing




                                                      —9--
down’ l3ut at that point, Gaddis had slowed to only filly to sixty miles per hour by applymg his

brakes. And although Gaddis claimed that he did not know what Legget( would do as he slowed

down, Gaddis also testilied he expected Leggett would pull onto the shoulder. Leggett testified he

had signaled to Gaddis with his hand that he was pulling over and that he decelerated and moved

onto the shoulder like a normal traffic stop. Gaddis (lid not recall seeing Leggett indicate his

intention to pull over.

        Gaddis testified his training included instruction on “tactical driving,” how to “make sure that

the surroundings are safi” when engaging in a traftic stop, and stopping distances and times for

different road surfiices, such as gravel. (jaddis admitted, however, that he gets nervous “any time

[he’sj driving fast,” and he agreed with the investigating officer’s report, which indicated Gaddis was

unable to control his speed before he hit Leggett’s motorcycle. Gaddis also agreed that during his

efforts to stop, his police vehicle skidded, starting in the right—hand lane and continuing onto the

shoulder. The shoulder was a concrete surface with loose, “paved gravel.” Based on his training,

Gaddis knew that stopping abruptly on this surlhce can cause a loss of control. Photographs of the

scene showed (jaddis’s vehicle left skid marks measuring ninety-eight feet.

       Leggett also relied on the testimony of Mike Cook, a witness to the collision, who testified

that he believed Ciaddis’s actions leading up to the accident were reckless. Cook testified he

believed Gaddis’s speed was “excessive for the conditions” as they existed on the highway. Cook

described traffic as light at the time Leggett passed, but they were coming up on some traffic. Cook

estimated that when Gaddis was following Leggett, Gaddis was “maybe 15 feet behind Leggett.”

Cook testified Gaddis’s speed was “too fast” in relation to his “closeness” to Leggett and “[i]f




                                                —   I 0—
something was to happen, there ain’t no way [Gaddis] would       Stop.’   According to Look, Leggett’s

stop was not ahi upt Cook testificd that when LeggLtt saw thc officu behind him, Leigett proceeded

to pull over to the right—hand lane and then to the shouldeL

        In support of its contention that Gaddis’s actions were not reckless, the County relies on facts

showing the collision happened in “an instant” and that Gaddis used his brakes and took evasive

measures to avoid the collision. (iaddis testified in his deposition that as Leggeit passed Gaddis’s

unmarked police vehicle, Gaddis activated his emergency lights to get Leggett’s attention. Gaddis

sped up because Leggett was getting “further and further away from [hirnj.” Gaddis testified that

when Leggett realized he was behind him, Leggelt’s speed went down “to about 10 miles per hour”

in the “blink of an eye.” Leggett was in the right-hand lane, and Gaddis claimed he did not “know

what [Leggett’sj plans were.” Gaddis tried to get over to the shoulder, but Leggctt moved to the

shoulder at the same time. Gaddis testitied he did not have enough time to adjust his stopping

distances before hitting Leggett’s motorcycle with his police vehicle.

       The County further maintains reckless disregard is negated because there is no evidence

Gaddis knew he would he approaching Leggett “stopped in the roadway” and that Gaddis’s action

of “swerving to the shoulder would result in Leggett moving in front of him.” But Leggett presented

evidence that Gaddis used excessive and unsafe speed, followed Leggett too closely in an unmarked

police vehicle, knew Leggett was pulling over and expected him to do so, and then was unable to

decelerate and control his speed before pulling behind Leggett on a shoulder with a loose gravel

surface. The County argues these events happened in “an instant,” but Leggett’s evidence also

shows that before Gaddis hit him, Leggett had time to maneuver his motorcycle to a stop, use his leg




                                                —l I—
to put his kickstand down, attempt to lean his motorcycle over, turn around to see Gaddis

 hn LII nu do n on In in       flip thc kick   t   md h ILk up md am   it   do n in fit ‘t   gai   to get out   of

the way. A reasonable person could inter horn evidence, such as Cook’s testimony about how

closely Gaddis was following Leggett despite their high speeds, that Gaddis knew the relevant flicts

prcsLnting   t   hiuh dLw cc of t isk of sci ous inuiv hut actcd in disi cgard ol that i isk S e Hai (man

201 S.W.3d at 672 n.19.

        When we indulge every reasonable inference and resolve         any   doubts in Leggett’s favor, we

conclude there is a dispute regarding whether Gaddis’s actions were reckless. See Miranda, 133

S.W.3d at 228. Because the evidence creates a fact question on the jurisdictional issue, the trial did

not err in denying the County’s plea. Id. at 227-2.

        We overrule the County’s two issues and affirm the trial court’s order denying the County’s

plea to the jurisdiction.                                                                     /


                                                           i, U
                                                              1 1 / /
                                                           MAkY NRPHY              /
                                                                  II                          11
                                                           JUs[ICll/


l20430F,P05




                                                    —12—
                                  ftniri iif ;\ppEat
                         Yifti! tithtrirt nf cxa at 1aUa
                                         JUDGMENT
KAUFMAN COUNTY, Appellant                              Appeal from the 422nd Judicial District
                                                       Court of Kaufrn in ( OUnt\ R\ Is
No. 05 I 2—()()430—CV          V                       (Tr.Ct.No. l 109-422).
                                                       Opinion delivered by Justice Murphy.
ClIRISTOPHER LEGGETT, Appellee                         Justices Morris and Francis participating.


       In accordance with this Court’s opinion of this date, the trial court’s order denying appellant
Kaufman County’s plea to the jurisdiction is AFFIRMED. it is ORDERED that appellee
Christopher Leggett recover his costs of this appeal from appellant Kaufman County.


Judgment entered l)ecemher 4, 2012.




                                                      MARY
                                                      JUSTICE
