                                  MEMORANDUM OPINION
                                         No. 04-10-00619-CV

                                         CITY OF LAREDO,
                                             Appellant

                                                   v.

Jesus Luis VARELA and Ana L. Varela, individually and as next friends of Erick M. Varela and
                                   Jesus Varela Jr.,
                                       Appellees

                     From the 111th Judicial District Court, Webb County, Texas
                               Trial Court No. 2008-CVE-001799-D2
                             Honorable Raul Vasquez, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: May 11, 2011

REVERSED AND RENDERED

           The City of Laredo appeals the trial court’s denial of its plea to the jurisdiction on the

grounds of sovereign immunity. We hold the City is immune from suit and therefore reverse the

trial court’s order and render judgment dismissing the cause for lack of jurisdiction.

                             FACTUAL AND PROCEDURAL BACKGROUND

           Jesus Luis and Ana L. Varela, individually and as next friends of Erick M. and Jesus

Varela Jr., filed suit against the City of Laredo for damages arising out of a collision between
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Varela’s vehicle and the police car driven by Officer Robert Cortinas. The City filed a plea to the

jurisdiction asserting it was immune from suit because Officer Cortinas was responding to an

emergency situation and did not act with conscious indifference or reckless disregard for the

safety of others. The trial court held an evidentiary hearing during which Officer Cortinas

testified and a video recording from the dash-cam recorder in the officer’s vehicle was

introduced into evidence. The trial court denied the plea to the jurisdiction and the City filed this

accelerated appeal.

                                      STANDARD OF REVIEW

       We review a trial court’s ruling on a plea to the jurisdiction de novo. Tex. Dep’t 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. at 226-28. When, as

here, the defendant challenges the existence of jurisdictional facts, the defendant must meet the

traditional summary judgment standard of proof and establish the trial court lacks jurisdiction. If

the defendant meets its burden, the plaintiff is required to show that there is a disputed material

fact regarding the jurisdictional issue. Id. at 228. If the evidence raises a fact issue as to

jurisdiction, the defendant’s plea must be denied because the issue must be resolved by the trier

of fact. Id. at 227-28. However, if the relevant evidence is undisputed or fails to present a

jurisdictional fact issue, the plea should be granted as a matter of law. Id. at 228. In reviewing the

evidence, we are required to assume the truth of all evidence that favors the nonmovant. Id.

                                            DISCUSSION

       The City contends it is immune from suit and liability because Officer Cortinas was

responding to an emergency and was not acting with reckless disregard of the safety of the public

at the time of the accident. A governmental unit is immune from both suit and liability unless its



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

2002). Section 101.021(1) of the Texas Tort Claims Act waives immunity for claims arising

from the use of a motor-driven vehicle by a governmental entity’s employee. TEX. CIV. PRAC. &

REM. CODE ANN. § 101.021(1) (West 2005). However, there is no waiver of immunity if the

claim arises

       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 ...

Id. at § 101.055(2). The law applicable to emergency action in this context is section 546.005 of

the Texas Transportation Code, which provides that the driver of an emergency 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.” TEX. TRANSP. CODE ANN. § 546.005

(West 1999). The Texas Supreme Court 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.” City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998) (interpreting the

uncodified predecessor of section 546.005).

       The Supreme Court has stated that the recklessness test is designed to address concerns

regarding

       the possibility of incurring civil liability for what amounts to a mere failure of
       judgment could deter emergency personnel from acting decisively and taking
       calculated risks in order to save life or property or to apprehend miscreants. The
       “reckless disregard” test, which requires a showing of more than a momentary
       judgment lapse, is better suited to the legislative goal of encouraging emergency
       personnel to act swiftly and resolutely while at the same time protecting the
       public’s safety to the extent practicable.




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Martin, 971 S.W.2d at 430 (quoting Saarinen v. Kerr, 84 N.Y.2d 494, 620 N.Y.S.2d 297, 644

N.E.2d 988, 992 (1994)). In Martin, the Supreme Court stated “[t]o recover damages resulting

from the emergency operation of an emergency vehicle, a plaintiff must 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.” 971 S.W.2d at 430. More recently, the Texas Supreme Court stated the terms

“conscious indifference” and “reckless disregard” “require proof that a party knew the relevant

facts but did not care about the result.” City of San Antonio v. Hartman, 201 S.W.3d 667, 672

n.19 (Tex. 2006).

       Officer Cortinas testified that on the night of the accident he was driving a marked police

car performing his duties as a patrol officer. While on patrol he received a call that there was an

officer in need of assistance. Officer Cortinas testified he activated his lights and siren and began

traveling east on Victoria Street toward the officer’s reported location. Officer Cortinas stated all

intersections he crossed had green lights until the intersection of Flores Street and Victoria,

where the accident occurred. Officer Cortinas testified the posted speed limit is thirty miles per

hour on that section of Victoria Street and he noticed traffic was yielding to his patrol car or

pulling over. Officer Cortinas testified he saw that the light was red at Flores and Victoria

several blocks before he reached Flores Street. He stated he applied his brakes at the intersection

of Convent and Victoria, the intersection immediately preceding the accident site, because he

saw the red light. He stopped applying the brakes and then reapplied them when he was closer to

the intersection. Officer Cortinas testified he removed his foot from the brake “because I didn’t

see no vehicle at the intersection. I didn’t see no vehicular traffic from the — Flores street.” He

further stated that he looked to the right and to the left. Later in his testimony Officer Cortinas

stated he did not see the white mini-van, he could not remember if he looked both ways, but that



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“I always do, every time I approach an intersection.” He testified he had been taught that when

approaching a red light on an emergency call to slow down to whatever speed is necessary to see

the intersection is clear of traffic. He further testified it is the general rule that the appropriate

speed when responding to an emergency is ten miles over the posted limit.

           The dash-cam recording shows he applied the brakes 1 at Victoria and Convent, and then

again midway through the block between Convent and Flores. According to the clock visible on

the video, he continued braking up to less than a second before the collision.

           The City’s undisputed evidence establishes that Officer Cortinas was responding to an

emergency call with his emergency lights and siren activated. The video recording and the

officer’s testimony establishes he slowed as he approached the intersection where the accident

occurred. Regarding whether he saw Varela’s vehicle, he testified variously that he looked but

did not see the other vehicle, his habit was to look both ways at an intersection, and he had no

memory if he looked both ways. The evidence is sufficient to demonstrate that Officer Cortinas

did not act with conscious indifference or reckless disregard for the safety of the public.

Therefore, the City met its burden to establish lack of subject matter jurisdiction.

           Because the City established the trial court lacked subject matter jurisdiction, the burden

shifted to Varela to raise a genuine issue of material fact on whether Officer Cortinas acted with

conscious indifference to or reckless disregard for the safety of others. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.055(2) (West 2005). To meet his burden, Varela points to several items

of evidence. First, Varela contends Officer Cortinas admitted to reckless disregard in his

deposition:

           Q. Looking back at it now, you know, they say Monday morning quarterback
           criticizing the football team or the baseball team after the fact. I’m saying looking
           at it now because we know there was an accident, we can agree it was obvious
1
    The letter “B” appears on the video screen when the brakes are applied.

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       that the intersection was not clear and safe to proceed through at the time.
       Correct?

       A. Yes.

       Q. And in hindsight, playing Monday morning quarterback, if you had slowed
       down more, taken more time to look, looked a little bit harder, this accident might
       not have happened. Correct?

       A. Yes.

Varela also argues Officer Cortinas did not comply with police department policy because he

entered the intersection without first ascertaining that it was safe to do so.

       Additionally, Varela relies upon affidavit testimony from Curtis Flynn, his accident

reconstruction expert. However, the trial court sustained the City’s objections to Curtis Flynn’s

affidavit except as to the portion of the affidavit that addressed the speed at which Officer

Cortinas was traveling. In his affidavit and its attachments, Flynn asserts that twenty-three

seconds before the accident Officer Cortinas was traveling at sixty-one miles per hour, and that

he was traveling at forty-seven miles an hour moments before the accident. Officer Cortinas

testified the speed limit on Victoria Street was thirty miles per hour. Varela also submitted

photographs that indicate Varela’s minivan was struck at the midsection of the vehicle, and that

the officer’s vehicle suffered damage primarily on the front left portion.

       Varela also contends the Laredo Police Department policies raise a fact issue on Officer

Cortinas’s alleged recklessness. The policy requires officers to come to a complete stop at all red

light traffic signals and proceed only when the officer has sufficient visibility that all traffic is

clear. Finally, Varela asserts the Review Board’s finding that the accident was preventable and

that two members of the board found Officer Cortinas’s actions “chargeable” raises a fact issue.

       We hold this evidence does not raise a fact issue as to whether Officer Cortinas acted in

conscious indifference to or reckless disregard for the safety of others at the time of the accident.

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The undisputed evidence indicates the officer had his patrol vehicle’s siren and emergency lights

activated and applied his brakes as he neared the intersection. Officer Cortinas testified he

continued to brake as he entered the intersection, and although he does not have a specific

memory of looking both ways to make sure the intersection was clear of traffic, he always does,

“every time I approach an intersection.” According to the clock on the video, the accident took

place less than one second 2 after the officer stopped applying his brakes, which indicates the

officer was relatively close to the intersection when he stopped applying his brakes. The use of

his siren, emergency lights and vehicle brakes are acts that indicate Officer Cortinas was aware

of the dangers to other as he responded to the emergency call and he was not consciously

indifferent to the plight of other drivers. See Pakdimounivong v. City of Arlington, 219 S.W.3d

401, 411-12 (Tex. App.—Fort Worth 2006, pet. denied) (holding that officers’ actions were not

taken with conscious indifference or reckless disregard for safety of deceased when no evidence

showed that officers did not care what happened to deceased). Officer Cortinas’ testimony that

he didn’t remember looking both ways is not evidence that he did not do so before entering the

intersection. See, e.g. Rankin v. Union Pacific R. Co., 319 S.W.3d 58, 65 (Tex. App.—San

Antonio 2010, no pet.) (holding affiant’s statement that he did not remember hearing train sound

its horn before accident is no evidence train crew failed to sound horn or whistle).

        Further, the department’s policy that officers are required to come to a complete stop at a

red light and Officer Cortinas’s failure to adhere to the policy does not raise a fact issue on

whether Officer Cortinas was consciously indifferent to the safety of others. See City of San

Antonio v. Hartman, 201 S.W.3d 667, 672 n.19 (Tex. 2006) (“conscious indifference” and

“reckless disregard” “require proof that a party knew the relevant facts but did not care about the


2
  Using simple math calculations, at forty-seven miles per hour a vehicle travels approximately sixty-nine feet per
second.

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result.”). Officer Cortinas testified that he had not seen the policy for awhile and was not sure

that it required an officer come to a complete stop. The department policy is not evidence

relevant to whether Officer Cortinas was consciously indifferent to the safety of others because

Officer Cortinas testified he had been taught to slow down to whatever speed is necessary to see

the intersection is clear of traffic. Moreover, the use of his siren, emergency lights and vehicle

brakes, indicate Officer Cortinas took precautions to avoid a risk of harm to others.

       Varela appears to argue that because Varela’s vehicle was struck in the middle and the

accident occurred within one second of Officer Cortinas entering the intersection, Varela’s

vehicle would have been plainly visible had Officer Cortinas looked. Thus, inferring the officer

did not look to see if the intersection was clear, and this failure caused the accident.

       Although we are to indulge in all reasonable inferences favorable to the non-movant, the

manner in which the accident occurred in this case does not raise a fact question on the issue of

whether Officer Cortinas “knew the relevant facts but did not care about the result.” Hartman,

201 S.W.3d at 672 n.19. Our decision is consistent with numerous other cases in which the

courts sustained either a summary judgment or plea to the jurisdiction where a driver responding

to an emergency collided with a vehicle at an intersection. See, e.g., City of Pasadena v. Kuhn,

260 S.W.3d 93, 100 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding evidence there was

a blind intersection, that plaintiff’s vehicle sustained damage, and conclusory statements that the

officer was driving at a high rate of speed was insufficient to raise fact issue); City of San Angelo

Fire Dept. v. Hudson, 179 S.W.3d 695, 701-02 (Tex. App.—Austin 2005, no pet.) (holding no

evidence of reckless disregard for safety of others when officer entered intersection without

stopping and witness did not hear brakes being applied); Smith v. Janda, 126 S.W.3d 543, 545-

46 (Tex. App.—San Antonio 2003, no pet.) (holding that evidence insufficient to establish



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recklessness when ambulance driven to emergency with lights and sirens activated as it

approached intersection, other drivers at intersection could hear and see sirens and lights, and

ambulance driver slowed down and looked around and then proceeded into intersection without

coming to complete stop). Likewise, the evidence of speeding, the failure to comply with the

department’s policy, and Officer Cortinas’s testimony during the deposition do not create a fact

issue as to whether his actions were taken with conscious indifference or reckless disregard for

the safety of others. See City of Arlington v. Barnes, No. 2-07-249-CV, 2008 WL 820385, *4

(Tex. App.—Fort Worth Mar. 27, 2008, pet. denied) (mem. op.) (holding violation of City

policies and Transportation Code, and fact officer received a written reprimand did not raise fact

issue on reckless disregard).

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

render judgment dismissing the case for lack of subject matter jurisdiction.



                                                 Steven C. Hilbig, Justice




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