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                                   MEMORANDUM OPINION

                                            No. 04-09-00162-CV

                                       CITY OF SAN ANTONIO,
                                             Appellants

                                                       v.

                                              William RILEY,
                                                  Appellee

                        From County Court at Law No. 5, Bexar County, Texas
                                     Trial Court No. 325665
                             Honorable Paul Canales, Judge Presiding1

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: July 15, 2009

REVERSED AND RENDERED

           William Riley sued the City of San Antonio and Lt. David E. Tundel for property damage

to his vehicle arising out of a collision between Riley’s automobile and the authorized emergency




          … The Honorable H. Paul Canales, presiding judge of County Court at Law No. 2, Bexar County, Texas,
           1

signed the order at issue in this appeal. The Honorable Tim Johnson is the presiding judge of County Court of Law
No. 5, Bexar County, Texas.
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vehicle driven by Tundel.2 The City filed a plea to the jurisdiction asserting its governmental

immunity was not waived, and therefore, the trial court lacked subject-matter jurisdiction. Following

a hearing, the trial court denied the City’s plea. The City filed this interlocutory appeal. See TEX .

CIV . PRAC. & REM . CODE ANN . § 51.014(a)(8) (Vernon 2008). We reverse and render.

                                         STANDARD OF REVIEW

        When a plea to the jurisdiction challenges the pleadings, we must decide whether the plaintiff

has pled facts that affirmatively establish the trial court’s subject-matter jurisdiction. See Texas

Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). In our review, we construe

the pleadings in favor of the plaintiff and look to the pleader’s intent. Id. When a city asserts, with

supporting evidence, that the trial court lacks subject-matter jurisdiction, the plaintiff must show

there is a disputed material fact regarding the jurisdictional issue. City of Helotes v. Miller, 243

S.W.3d 704, 707 (Tex. App.—San Antonio 2007, no pet.) (citing Tex. Dept. of Parks and Wildlife

v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). The trial court may consider relevant evidence

submitted by the parties when necessary to resolve the jurisdictional issues raised. Id. (citing Bland

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). “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.” Id. at 707-08. However, if the evidence 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. Id. at 708.




        2
            … Tundel was dismissed from the suit without prejudice.

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                                                     DISCUSSION

         On appeal, the City argues the trial court erred in denying its plea to the jurisdiction because

it is immune from suit. We agree.

         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, 638-39

(Tex. 1999). Here, the City is immune from both suit and liability for Riley’s property damage

unless its immunity has been waived. See Tex. Dep’t of Transp. v. Garza, 70 S.W.3d 802, 806 (Tex.

2002). Riley claims the City waived its immunity under section 101.021(1) of the Texas Tort Claims

Act, which waives immunity for property damage arising from the operation of a motor vehicle that

is caused by the wrongful act, omission, or negligence of an employee acting within his scope of

employment. TEX . CIV . PRAC. & REM . CODE ANN . § 101.021(1) (Vernon 2005).

         However, the City argues that the exception to the waiver of sovereign immunity contained

in section 101.055(2) of the Texas Tort Claims Act prevents Riley’s suit for damages. Section

101.055(2) provides that the Act “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 . . . .” TEX . CIV . PRAC.

& REM . CODE ANN . § 101.055(2). The applicable laws regarding the operation of an emergency

vehicle are located in the Texas Transportation Code.3 See TEX . TRANSP . CODE ANN . § 546.001-.006

(Vernon 1999 & Supp. 2008). Specifically, section 546.005 provides that the driver of an emergency


         3
           … In his response to the City’s plea to the jurisdiction, Riley argued a City of San Antonio ordinance that
regulates emergency vehicles was the law governing the current case. S AN A N TO N IO , T EX ., C O D E O F O RD IN AN CES ch.
19, Art. IX § 19-338 (2009). However, it is clear that this ordinance, which holds an ambulance driver responsible for
his negligence, only applies to a private “ambulance,” which is defined as a “privately owned vehicle equipped or used
for transporting the wounded, injured or sick.” Id. § 19-1. Because this accident involved an “authorized emergency
vehicle” that was operated by the City, and not a private ambulance, this ordinance does not apply. See id. “Authorized
emergency vehicles” are governed by the Texas Transportation Code. See id. § 19-321.

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vehicle must drive “with appropriate regard for the safety of all persons,” and he is not relieved of

“the consequences of reckless disregard for the safety of others.” Id. § 546.005; see Smith v. Janda,

126 S.W.3d 543, 545 (Tex. App.—San Antonio 2003, no pet.). “Interpreting the uncodified

predecessor of section 546.005, the Supreme Court of Texas held that this provision ‘imposes a duty

to drive with due regard for others by avoiding negligent behavior, but it only imposes liability for

reckless conduct.’” Smith, 126 S.W.3d at 545 (quoting City of Amarillo v. Martin, 971 S.W.2d 426,

431 (Tex. 1998)). “Thus, a governmental entity is immune from suits to recover damages resulting

from the emergency operation of an emergency vehicle unless the operator acted recklessly; that is,

‘committed an act that the operator knew or should have known posed a high degree of risk of

serious injury.’” Id. (quoting Martin, 971 S.W.2d at 430).

       In its plea to the jurisdiction, the City alleged that Tundel was not reckless as a matter of law

and, therefore, the City retained its governmental immunity. Riley, however, contends the evidence

raises a fact issue as to whether Tundel acted with reckless disregard for the safety of others;

therefore, this fact issue must be decided by a jury. The undisputed evidence establishes that Tundel

was on duty with his regular EMS unit when he was called for assistance at a motor vehicle accident

on northbound IH-35. Tundel was driving the emergency vehicle in an emergency situation with the

lights and sirens activated. Tundel entered the northbound IH-35 on-ramp and proceeded to cross

the four lanes of traffic to get to the automobile accident. As Tundel was about to enter the far left

lane, Riley’s vehicle collided with the left side of the emergency vehicle.

       In responding to the City’s plea to the jurisdiction, Riley submitted the affidavit of Thomas

Dulin, a third-party witness to the accident. In his affidavit, Dulin states:

              On November 23, 2005, I was traveling north bound on IH35S when an
       accident occurred. The accident I witnessed occurred when an ambulance entered the


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       interstate from an on ramp and attempted to cross several lanes of traffic on north
       bound IH35S and collided into the side of a pick-up, who I later learned was driven
       by a man named William Riley. The ambulance hit the middle of the pick-up on the
       passenger side. There was nothing the driver of the pick-up, Mr. Riley, could have
       done to avoid this accident. Not only did the ambulance driver not change lanes
       safely, he attempted to change several lanes at once. There is no doubt the
       ambulance caused this accident. Furthermore, this driver of the ambulance was not
       driving with due regard for the safety of others. I would also say that the ambulance
       driver, in changing several lanes of traffic at once, was the cause of this accident.

Riley asserts Dulin’s affidavit raises a material fact issue about whether Tundel acted with reckless

disregard for the safety of others when he crossed several lanes of traffic at once. We disagree.

Even if all of Dulin’s contentions were taken as true by the trial court, his affidavit raises, at most,

only a question on whether Tundel’s actions were negligent; the affidavit does not assert any facts

that rise to the level of reckless disregard. See Martin, 971 S.W.2d at 430 (requiring a plaintiff to

show that the operator has committed an act that the operator knew or should have known posed a

high degree of risk of serious injury in order to recover damages resulting from the emergency

operation of an emergency vehicle). Accordingly, we conclude Riley did not submit evidence

sufficient to raise a material fact issue on whether Tundel acted with “reckless disregard for the

safety of others.” Therefore, the City retains its immunity as a matter of law.

                                          CONCLUSION

       We reverse the order of the trial court that denied the City’s plea to the jurisdiction and

render judgment that the case be dismissed for lack of subject-matter jurisdiction.



                                                        Sandee Bryan Marion, Justice




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