Affirmed and Memorandum Opinion filed May 28, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00322-CV

                   CITY OF BRAZORIA, TEXAS, Appellant
                                          V.

     WALTER ELLIS, INDIVIDUALLY AND AS NEXT FRIEND OF
     CHRISTIAN ELLIS AND MAKAYLA ELLIS, MINORS, Appellee

                     On Appeal from the 23rd District Court
                           Brazoria County, Texas
                         Trial Court Cause No. 67298

                 MEMORANDUM                       OPINION


      Nicholas Dayton, a police officer employed by appellant, the City of
Brazoria, was involved in a traffic collision with appellee Walter Ellis. Officer
Dayton was responding to a call for emergency assistance at the time of the
collision. Ellis filed this negligence suit and the City responded by asserting its
immunity in a plea to the jurisdiction, which the trial court denied.
      In this interlocutory appeal, the City raises three issues in support of its
contention that the trial court erred in denying the plea. First, the City argues that
it is immune from liability because Officer Dayton is entitled to official immunity.
Second, the City asserts it is immune from liability because Officer Dayton did not
act with conscious indifference or reckless disregard for the safety of others while
responding to the emergency call for assistance. We overrule these issues because
there are genuine issues of material fact on whether Officer Dayton acted in good
faith as required for official immunity, as well as whether his actions demonstrated
a conscious indifference or reckless disregard for the safety of others. Because we
overrule the City’s first two issues, we need not reach its third issue in which the
City argues it did not waive its immunity from suit by filing counterclaims against
Ellis. We therefore affirm the trial court’s order denying the City’s plea to the
jurisdiction.

                                   BACKGROUND

      On the night of February 5, 2012, Officer Dayton had been working for the
City’s Police Department for approximately eight months. The Department had
hired Dayton the same day he interviewed for the job. Dayton’s job with the
Department started about a month after he was hired. Dayton, who had no prior
police training, was instructed to read the Department’s policy manual before
starting work but was not required to take any examination. Once Officer Dayton
began working for the Department, he participated in six months of field training
conducted by another police officer.

      Officer Dayton went on duty at six o’clock in the evening on February 5,
2012. Officer Dayton testified that once he was on duty, he turned on his patrol
car’s camcorder unit, checked the remainder of the vehicle’s equipment, and then
began his regular patrol routine. Officer Dayton’s routine patrol took him to the

                                          2
parking lot of McCoy’s Building Supply, where he parked and began running
radar. About 9:00 p.m., while still parked in the McCoy’s parking lot, Officer
Dayton heard the Department’s dispatcher broadcast a notice of a domestic
disturbance involving a weapon on East Louisiana Street. According to Officer
Dayton, the Department considers a domestic disturbance involving a weapon as
the most serious of all police calls.1 Once he learned of the disturbance, Officer
Dayton activated his emergency lights and siren and began to drive toward the
scene of the disturbance because he believed he might be the closest responding
officer.2

       Officer Dayton first drove along South Brooks Street, reaching speeds of
forty to fifty miles per hour. He approached an intersection and observed that he
had a green light. During his deposition, Officer Dayton testified that he was
hitting his siren as he passed through that intersection. Officer Dayton continued
on South Brooks Street and slowed his patrol car to about eight miles per hour to
make a right-hand turn onto East Louisiana Street. He then accelerated his patrol
       1
          In his affidavit attached to the City’s plea to the jurisdiction, Dayton stated that when
there is a disturbance with a weapon, “dispatch assigns officers to respond.” An excerpt listing
Department procedures for operating police vehicles in emergency conditions was also attached
to the City’s plea to the jurisdiction. The procedure for responding to disturbance calls provides
that “emergency equipment will not be used unless there is a weapon involved. The dispatcher
will advise of the situation, and whenever possible, assign two or more officers to respond.” The
procedure for responding to shootings and similar incidents provides that “only the unit assigned
will respond with red lights and siren. Other units may respond as directed by the supervisor or
dispatcher using red lights only, except where extra safety precautions are needed. Example:
Intersections.” There is no evidence in the record that Officer Dayton was assigned to respond to
the disturbance by the dispatcher. Instead, Officer Dayton stated only that he learned of the
disturbance “by monitoring the police radio” and believed he might be the closest officer
responding to the disturbance.
       2
           Officer Dayton testified during his deposition that his vehicle’s camcorder
automatically begins recording whenever the emergency lights are activated. Dayton insisted
that he turned the camcorder unit on at the beginning of his shift before he left the Brazoria
Police Department. It is undisputed, however, that his vehicle’s camcorder did not record any
part of the incident leading up to the collision with Ellis’s vehicle. Dayton also testified that
turning on the emergency lights and siren is a two-step process.

                                                3
car as he drove east along East Louisiana. Officer Dayton estimated that he
reached a speed of about thirty miles per hour as he approached the yield sign at
the intersection of East Louisiana and South Market Street.

       While Officer Dayton was driving east on East Louisiana, Ellis was driving
north on South Market with his two daughters. As both drivers approached the
intersection of East Louisiana and South Market, a large building to Officer
Dayton’s right blocked both drivers’ views of traffic approaching the intersection.3
Officer Dayton, who had the yield sign, did not stop his vehicle. 4 In his affidavit,
Officer Dayton stated that he is not required by Texas law to stop completely at a
yield sign unless safety requires it. Officer Dayton also stated that he could have
stopped at the yield sign and waited to proceed through the intersection, but he
“saw no need to do so based on [his] perception of traffic at the time weighed
against the need for [his] prompt response to the incident involving the weapon.”
Officer Dayton instead started to slow his patrol car about thirty to forty feet from
the intersection.

       As he approached the intersection, Officer Dayton looked to his left
“because [he] had a clear line of sight to [his] left.” Officer Dayton then turned to
his right in an effort to see past the building, and he saw Ellis’s vehicle between ten
and twenty feet away. Officer Dayton’s patrol car crashed into the driver’s side
door area of Ellis’s vehicle. Contradicting his earlier statement that he slowed
before entering the intersection, Officer Dayton estimated that he was still
travelling at approximately thirty miles per hour when he hit Ellis’s vehicle. After

       3
          According to the police report, the building was located on the southwest corner of the
intersection.
       4
        In his affidavit, Officer Dayton stated that he “took all reasonable precautions I could
have under the circumstances to avoid an accident but apparently a building on the corner of
South Market and East Louisiana prevented me from recognizing the threat posed by Mr. Ellis.”

                                               4
the collision, Officer Dayton’s patrol car came to rest in a ditch while Ellis’s
vehicle stopped in a nearby yard. It was later determined that both vehicles were
total losses.

       Officer Dayton, who was not injured in the collision, exited his vehicle,
reported the collision to his dispatcher, and called for an ambulance and fire truck.
He then went to Ellis’s vehicle to assist the occupants. Officer Dayton admitted
that, as he approached Ellis’s vehicle after the collision, he said “they’re going to
fire me for this.” Officer Dayton initially checked on Ellis, who was already being
assisted by a person who had seen the collision. Ellis asked about his children.
Officer Dayton then got Ellis’s children out of the vehicle and moved them away
from the scene. One child had a cut and was bleeding. Officer Dayton allowed
one child to use the officer’s cell phone to call the children’s mother. Officer
Dayton did not know how Ellis got out of the vehicle because Detective Vicki
Green of the Brazoria Police Department arrived within fifteen minutes of the
collision and took Officer Dayton to a nearby hospital to be checked out. Officer
Dayton did not speak to the Department of Public Safety (DPS) trooper
investigating the collision until several days later, when he spoke with him on the
telephone. The DPS trooper determined that Dayton’s disregarding a yield sign as
he entered the intersection contributed to the collision.

       Officer Dayton did not receive a warning or reprimand from the Brazoria
Police Department as a result of the collision, but he left the department less than a
month later. During his deposition, Officer Dayton explained that he left due to
the stress he was experiencing as a result of the lack of sleep caused by his work
schedule.       Officer Dayton also admitted during his deposition that if he had
stopped at the yield sign before proceeding into the intersection, the collision
would not have occurred.

                                           5
      Several witnesses gave voluntary statements to the DPS trooper
investigating the accident. Gene Farrer, a licensed civil process server, located and
interviewed three of the witnesses: Nathan Crecy, Derrick Matthew, and Breddie
Matthews. All three saw the collision and none heard a siren prior to the crash.

      Ellis, individually and as next friend of his minor daughters, filed this
negligence suit against the City and Officer Dayton. The claims against Officer
Dayton were dismissed by agreement. The City filed a plea to the jurisdiction
asserting that the trial court lacked jurisdiction over the claims against it because it
had not waived its governmental immunity. The City made two arguments in its
plea to the jurisdiction. First, the City asserted Officer Dayton’s official immunity
preserved the City’s governmental immunity. Second, the City argued it was
immune because the emergency exception in the Texas Tort Claims Act (TTCA)
barred any possible waiver of its governmental immunity.

      In support of its plea to the jurisdiction, the City attached not only Officer
Dayton’s affidavit, but also affidavits from Detective Green and Officer Jennifer
Neilon of the Pasadena Police Department. Both Detective Green and Officer
Neilon accepted Dayton’s testimony that he had turned on his emergency lights
and his siren at the beginning of his response and kept both on up to the moment he
crashed into Ellis’s vehicle. Based on that testimony, both conducted a needs-
versus-risk analysis and then opined that a reasonably prudent officer, in similar
circumstances to those faced by Officer Dayton, could have reached the same
decision he did based upon his perception of the facts at that time. The trial court
denied the City’s plea, and this interlocutory appeal followed.




                                           6
                                      ANALYSIS

I.    Standard of review

      We review a trial court’s ruling on a plea to the jurisdiction de novo. City of
Pasadena v. Belle, 297 S.W.3d 525, 528 (Tex. App.—Houston [14th Dist.] 2009,
no pet.) (citing Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228
(Tex. 2004)). A defendant’s plea may challenge either the plaintiffs’ pleadings or
the existence of jurisdictional facts. Id. When, as here, the governmental entity
challenges the existence of jurisdictional facts, we must consider the relevant
evidence submitted by the parties. Id. If that evidence raises a fact issue as to
jurisdiction, the governmental entity’s plea must be denied because the issue must
be resolved by the trier of fact. Id. If the relevant evidence is undisputed or fails
to present a jurisdictional fact issue, however, the court should rule on the plea as a
matter of law. Id. The standard of review for a plea to the jurisdiction based on
evidence generally mirrors that of a motion for summary judgment. Quested v.
City of Houston, 440 S.W.3d 275, 280 (Tex. App.—Houston [14th Dist.] 2014, no
pet.). We therefore must credit evidence favoring the nonmovant and draw all
reasonable inferences in the nonmovant’s favor. Id.

II.   Because there is a fact issue on whether Officer Dayton acted in good
      faith, the trial court properly denied the City’s plea to the jurisdiction
      based on official immunity.
      The City, as a municipality and political subdivision of the State, cannot be
liable for an employee’s acts unless its governmental immunity has been waived.
Belle, 297 S.W.3d at 529 (citing City of Lancaster v. Chambers, 883 S.W.2d 650,
658 (Tex. 1994)). Under the facts of this case, the only possible waiver of the
City’s immunity from suit and liability is found in section 101.021 of the TTCA,
which provides in relevant part:


                                          7
      A governmental unit in the state is liable for . . . 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(1) (West 2011).

      The parties agree Ellis’s claims arise from the use of a motor vehicle. They
also agree that Officer Dayton was acting within the scope of his employment
when he responded to the dispatcher’s call regarding a domestic disturbance with a
weapon involved. The parties’ dispute concerns whether Officer Dayton could “be
personally liable to the claimant[s] under Texas law.” The City contends the
evidence conclusively shows that Officer Dayton retained his official immunity
because he responded to the disturbance call in good faith.                Officer Dayton
therefore could not be personally liable to Ellis according to Texas law and, as a
result, the City asserts that its governmental immunity has not been waived.

      Official immunity is an affirmative defense, and therefore the burden rests
on the City to establish all elements of that defense. Belle, 297 S.W.3d at 530; see
Green v. Alford, 274 S.W.3d 5, 16 n.11 (Tex. App.—Houston [14th Dist.] 2008,
pet. denied) (en banc).     Under that defense, a government employee may be
immune from a lawsuit that arises from (1) the performance of discretionary duties
(2) in good faith, (3) provided he was acting in the course and scope of his
authority. Id. In the City’s first issue, only good faith is in dispute.

      In this context, “good faith” is defined as a standard of objective legal
reasonableness that disregards the police officer’s subjective state of mind. Belle,

                                           8
297 S.W.3d at 530 (citing Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex.
1997)). The defendant has the burden to prove conclusively that a reasonably
prudent police officer, under the same or similar circumstances, could have
believed his actions were justified based on the information he possessed at the
time. Id.; City of Lancaster, 883 S.W.2d at 656–57. To rebut a defendant’s
showing of good faith, a plaintiff must establish that no reasonable person in the
officer’s position could have thought the facts were such that they justified the
officer’s actions. Id.

      The good-faith standard of reasonableness is subject to a balancing test that
weighs the need for the officer’s actions against the risks entailed by such conduct
based on the officer’s perception of the facts at the time of the event. Wadewitz,
951 S.W.2d at 467. The need aspect of the balancing test refers to the urgency of
the circumstances requiring police intervention and requires an evaluation of the
following factors: (1) the seriousness of the crime or accident to which the officer
is responding; (2) whether the officer’s immediate presence is necessary to prevent
injury or loss of life or to apprehend a suspect; and (3) what alternative courses of
action, if any, are available to achieve a comparable result. Id. The risk aspect
refers to the countervailing public safety concerns and requires an evaluation of the
following factors: (1) the nature and severity of the harm the officer’s actions could
cause (including injuries to bystanders as well as the possibility that the officer
may not reach the scene of the original emergency); (2) the likelihood that any
harm would occur; and (3) whether the risk of harm would be clear to a reasonably
prudent officer. Id.

      To prevail, a defendant’s proof must sufficiently address these need/risk
factors. Telthorster v. Tennell, 92 S.W.3d 457, 462 (Tex. 2002). An expert giving
testimony regarding good faith must discuss what a reasonable officer could have

                                          9
believed based on the officer’s perception of the facts at the time of the event, and
this discussion must be substantiated with reference to both the “need” and “risk”
aspects of the balancing test. Belle, 297 S.W.3d at 531 (citing Wadewitz, 951
S.W.2d at 466–67). In addition, the facts of the case may require the expert to
provide a continuing assessment of the “need” and “risk” factors because
emergency responses and police pursuits may involve rapidly changing
circumstances. Id. (citing University of Houston v. Clark, 38 S.W.3d 578, 582–83
(Tex. 2000)).

      A reviewing court analyzing these factors must first determine whether the
governmental unit met its initial burden to prove conclusively the police officer’s
good faith. Only when it has been determined that the governmental unit met this
burden does the court address whether the nonmovant’s evidence raises a genuine
issue of material fact on the issue of good faith. Id.

      We therefore turn to the question whether the City met its burden to prove
Officer Dayton’s good faith conclusively. As this Court has held, an opinion that
an officer acted in good faith does not conclusively establish good faith when the
opinion is reached “by assuming the truth of disputed facts . . . and by failing to
consider other uncontroverted facts.” Green, 274 S.W.3d at 20. In this case, the
City’s evidence of good faith contains each of these flaws.

      As to uncontroverted facts, there is no dispute that as Officer Dayton
approached the yield sign at the intersection of East Louisiana and South Market, a
large building blocked his view of traffic approaching from his right that did not
face a yield sign. It is also undisputed that Officer Dayton did not stop his vehicle
at the yield sign and verify that the way was clear before proceeding into the
intersection. When faced with a yield sign, a motorist is required to stop and yield
the right of way and may proceed through the intersection only when it is safe to

                                          10
do so. See Tex. Transp. Code Ann. § 545.151(a) (West 2011). Although police
officers are sometimes allowed to violate traffic laws, they may do so only when it
is safe. See id. § 546.001 (authorizing police officer to proceed through stop sign
after slowing as necessary for safe operation).

      These changing circumstances required a continuing assessment of the need
and risk factors. Belle, 297 S.W.3d at 531; see also Clark, 38 S.W.3d at 582–83;
Green, 274 S.W.3d at 18–20 (addressing intersection where accident occurred as
part of need/risk analysis); Harris County v. Smyly, 130 S.W.3d 330, 335 (Tex.
App.—Houston [14th Dist.] 2004, no pet.) (“an officer is required to assess the
specific circumstances present that affect any risks”). One of the need factors is
alternative courses of action that are available to achieve a comparable result.
Belle, 297 S.W.3d at 532. Additionally, one of the risk factors is the harm that a
police officer’s actions could cause, including the possibility that the officer may
not reach the scene of the original emergency. Wadewitz, 951 S.W.2d at 467.

      Officer Dayton and the City’s experts failed to address how the need and
risk factors were affected by the building blocking Officer Dayton’s view. Officer
Dayton stated in his affidavit that he considered stopping at the yield sign before
entering the intersection, but he “saw no need to do so based upon [his] perception
of traffic at the time weighed against the need for [his] prompt response to the
incident involving a weapon.”         He claimed that he “took all reasonable
precautions,” but “apparently” the building prevented him from seeing Ellis’s
vehicle. This testimony does not conclusively prove objective good faith because
it does not address the “degree, likelihood, and obviousness of the risks created by”
Officer Dayton’s decision to proceed through a yield sign despite his obstructed
view. See Wadewitz, 951 S.W.2d at 466–67 (holding evidence that failed to
address risk of crossing lane obscured by truck did not provide basis for

                                         11
concluding that reasonable officer could have believed actions were justified). Nor
does the testimony address the extent to which alternative actions—such as
stopping briefly or slowing further—might have impacted Officer Dayton’s ability
to respond timely to the disturbance call. See Belle, 297 S.W.3d at 534 (holding
evidence did not conclusively demonstrate good faith where it failed to address
availability of alternative manner of response).

      The City’s expert witnesses simply repeated Officer Dayton’s statements
regarding his consideration of traffic conditions as he approached the blind
intersection of East Louisiana and South Market, and they failed even to mention
his blocked field of vision when rendering their opinions.        Expert witnesses’
opinions must be based on the reality of the situation facing the police officer. See
Collins v. City of Houston, 14-13-00533-CV, 2014 WL 3051231, at *6 (Tex.
App.—Houston [14th Dist.] July 3, 2014, no pet.) (mem. op.) (holding city failed
to establish conclusively that police officer acted in good faith because expert
witnesses did not offer opinions based on specific circumstances officer faced).
On this record, therefore, the City failed to establish conclusively that Officer
Dayton acted in good faith in proceeding through a yield sign at a blind
intersection.

      The City’s evidence of good faith is also inconclusive for a second,
independent reason: it assumes the truth of the disputed fact that Officer Dayton
was using his siren as he approached the intersection. Officer Dayton testified that
he was using his siren continuously from the beginning of his response to the
emergency situation, but there was other evidence in the record that he was not.
This evidence included his own testimony that he was hitting his siren as he passed
through an earlier intersection, which could support an inference that he was using
his siren not continuously but only intermittently. There are also reports from

                                         12
witnesses that they observed the collision and saw Dayton’s emergency lights but
did not hear a siren prior to the collision. 5

       All three of the City’s police officer witnesses—Dayton, Green, and
Neilon—included a needs-versus-risk analysis in their affidavits, and all concluded
that Officer Dayton acted in good faith. All based their conclusion, in part, on
evidence that Officer Dayton was using his siren continuously as he entered the
intersection of East Louisiana and South Market. None formed their good-faith
opinion based on a need-versus-risk analysis under the alternative scenario that
Officer Dayton was not using his siren when he entered the intersection. Because
they did not do so, and there is evidence in the record that Dayton was not using
his siren when he entered the intersection, the City has not conclusively
demonstrated that Officer Dayton acted in good faith. See Smyly, 130 S.W.3d at
335 (“When material facts underlying an officer’s claim of good faith are
contradicted, a conclusive finding of good faith is precluded and summary
judgment is improper.”); see also Collins, 2014 WL 3051231, at *6 (holding
opinions failed to establish good faith because they “relie[d] on assumptions that
are not supported by the record”); Junemann v. Harris County, 84 S.W.3d 689,
694–95 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (holding that when
officer’s failure to activate lights was disputed, testimony that did not evaluate
risks associated with failure to activate lights was insufficient to establish good
faith conclusively). 6


       5
         The City argued on appeal that we cannot consider Farrer’s report of the witnesses’
statements that they did not hear a siren because it contains hearsay. Because the City failed to
obtain explicit rulings on any hearsay objection it may have lodged to Farrer’s report, we
conclude we can consider the report in resolving this appeal. See Quested, 440 S.W.3d at 284
n.19.
       6
         Cf. City of San Angelo v. Hudson, 179 S.W.3d 695, 700–01 (Tex. App.—Austin 2005,
no pet.) (holding good faith conclusively proven where undisputed evidence established fire
                                               13
       For these reasons, we hold the trial court did not err when it denied the
City’s plea to the jurisdiction asserting that the City’s governmental immunity has
not been waived under section 101.021. We overrule the City’s first issue.

III.   There is a fact issue on whether the emergency exception to the TTCA’s
       waiver of immunity applies and as a result, the trial court correctly
       denied the City’s plea to the jurisdiction based on this exception.
       In its second issue, the City contends that even if it failed to negate
conclusively the possibility that its governmental immunity has been waived under
section 101.021, the trial court erred in denying the plea to the jurisdiction because
the emergency exception to that waiver applies. The City argues that it established
as a matter of law that Officer Dayton did not act recklessly and Ellis’s evidence
did not create a genuine issue of material fact on that issue. We disagree.

       The TTCA includes a subchapter entitled “Exceptions and Exclusions” that
lists circumstances in which a waiver of immunity does not apply. City of San
Antonio v. Hartman, 201 S.W.3d 667, 671–72 (Tex. 2006). One of the exceptions
addresses emergency situations. This exception provides that the TTCA “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 law or ordinance, if the action is not taken with conscious indifference or
reckless disregard for the safety of others . . . .” Tex. Civ. Prac. & Rem. Code
Ann. § 101.055(2) (West 2011).

       The law applicable here is found in section 546.005 of the Texas

truck was using emergency lights, siren, and air horn as it approached intersection and driver
testified he was driving below speed limit, considered stopping at intersection but, after looking
both ways and observing that traffic had yielded to his fire truck and evaluating need for a
prompt response to emergency, decided not to stop completely but instead to slow down
significantly before entering intersection).

                                               14
witnesses that they observed the collision and saw Dayton’s emergency lights but
did not hear a siren prior to the collision. 5

       All three of the City’s police officer witnesses—Dayton, Green, and
Neilon—included a needs-versus-risk analysis in their affidavits, and all concluded
that Officer Dayton acted in good faith. All based their conclusion, in part, on
evidence that Officer Dayton was using his siren continuously as he entered the
intersection of East Louisiana and South Market. None formed their good-faith
opinion based on a need-versus-risk analysis under the alternative scenario that
Officer Dayton was not using his siren when he entered the intersection. Because
they did not do so, and there is evidence in the record that Dayton was not using
his siren when he entered the intersection, the City has not conclusively
demonstrated that Officer Dayton acted in good faith. See Smyly, 130 S.W.3d at
335 (“When material facts underlying an officer’s claim of good faith are
contradicted, a conclusive finding of good faith is precluded and summary
judgment is improper.”); see also Collins, 2014 WL 3051231, at *6 (holding
opinions failed to establish good faith because they “relie[d] on assumptions that
are not supported by the record”); Junemann v. Harris County, 84 S.W.3d 689,
694–95 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (holding that when
officer’s failure to activate lights was disputed, testimony that did not evaluate
risks associated with failure to activate lights was insufficient to establish good
faith conclusively). 6


       5
         The City argued on appeal that we cannot consider Farrer’s report of the witnesses’
statements that they did not hear a siren because it contains hearsay. Because the City failed to
obtain explicit rulings on any hearsay objection it may have lodged to Farrer’s report, we
conclude we can consider the report in resolving this appeal. See Quested, 440 S.W.3d at 284
n.19.
       6
         Cf. City of San Angelo v. Hudson, 179 S.W.3d 695, 700–01 (Tex. App.—Austin 2005,
no pet.) (holding good faith conclusively proven where undisputed evidence established fire
                                               13
by traveling twice the speed limit without operating emergency lights or siren);
Green, 274 S.W.3d at 29 (concluding firefighter’s failure to use siren as he drove
fire engine across lane he could not see was factor supporting finding that
firefighter was reckless).

      The City cites two cases in support of its argument that the emergency
exception applies and its governmental immunity is preserved, but we conclude
that both are distinguishable. In particular, the City contends that the court of
appeals in City of San Angelo v. Hudson rejected a claim of recklessness on
virtually identical facts. 179 S.W.3d 695 (Tex. App.—Austin 2005, no pet.). The
City overstates the similarities between Hudson and the present case. In Hudson,
unlike here, it was undisputed that the emergency vehicle was using its emergency
lights, siren, and air horn as it approached and entered the intersection where the
collision occurred.    Id. at 701.   Hudson is also distinguishable because the
emergency vehicle driver’s actions as he approached the intersection demonstrated
a concern for the welfare of other motorists not shown here. In Hudson, the driver
testified that as he approached the intersection, he was driving below the speed
limit and he considered stopping but, after looking both ways and observing that
traffic had yielded to his fire truck while also evaluating the need for a prompt
response to the emergency, he decided not to stop completely but instead only to
slow down significantly before entering intersection. Id. at 700–01. Here, in
contrast, it is not clear that Officer Dayton analyzed the risk posed by his
obstructed view or slowed his car as he approached and entered the intersection.

      The second case cited by the City, City of Pasadena v. Kuhn, is also
distinguishable because the evidence was undisputed that the emergency vehicle
involved was using its emergency lights and siren before entering the intersection
where the collision occurred. 260 S.W.3d 93, 100 (Tex. App.—Houston [1st Dist.]

                                        16
2008, no pet.). Thus, neither Kuhn nor Hudson supports applying the emergency
exception here.

      Because there is a fact issue on whether Officer Dayton’s conduct was
reckless, we overrule the City’s second issue. Belle, 297 S.W.3d at 534–35; see
Green, 274 S.W.3d at 26–27.         Having overruled the City’s first two issues
challenging the trial court’s denial of its plea to the jurisdiction, we need not reach
the City’s third issue regarding whether it waived its governmental immunity by
filing a counterclaim against Ellis. See Tex. R. App. P. 47.1.

                                    CONCLUSION

      Having addressed and rejected each issue raised by the City necessary for a
final disposition of this appeal, we affirm the trial court’s denial of the City’s plea
to the jurisdiction and remand this case to the trial court for further proceedings
consistent with this opinion.




                                        /s/    J. Brett Busby
                                               Justice



Panel consists of Chief Justice Frost and Justices Christopher and Busby.




                                          17
