 Reversed and Rendered; and Opinion Filed January 16, 2014




                                         S In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                      No. 05-12-00705-CV

                           CITY OF DALLAS, Appellant
                                      V.
                   BRIAN LONCAR, SUE LONCAR, ET AL., Appellees

                       On Appeal from the County Court at Law No. 3
                                   Dallas County, Texas
                           Trial Court Cause No. CC-09-06753-C

                               MEMORANDUM OPINION
                       Before Justices Moseley, Bridges, and Lang-Miers
                                   Opinion by Justice Bridges
       The City of Dallas appeals the trial court’s order denying in part the City’s plea to the

jurisdiction. In three issues, the City argues the trial court erred in denying its plea to the

jurisdiction because the City is immune from suit and immunity has not been waived. The City

further complains the trial court should not have considered certain affidavits. We reverse the

trial court’s order to the extent the order denied the City’s plea to the jurisdiction and render

judgment that appellees take nothing on their claims.

       Between 6:30 and 7:00 p.m. on May 15, 2008, Paul Ferguson was dispatched through

911 to a reported automatic fire alarm call at a Lowe’s Home Improvement store on Lemmon

Avenue. Ferguson, driving a fire engine, left the fire station and headed west on Lemmon

Avenue. Ferguson had the engine’s emergency lights and siren activated, and the roadway was

dry. It was daylight, and rush hour had just ended. Ferguson activated his air horn intermittently
as he drove, activating it liberally at each intersection on Lemmon Avenue. He also kept his foot

over the brake at each intersection. Two blocks before the intersection at Lemmon Avenue and

Lomo Alto Drive, Ferguson activated the air horn at Herschel Street, approximately 400 feet

from the intersection of Lemmon and Lomo Alto.

       As he approached the intersection of Lemmon and Lomo Alto, Ferguson slowed down

and looked for any oncoming traffic. All three westbound lanes on Lemmon were filled with

vehicles, but there were no vehicles in the left turn lane to the southbound Dallas North Tollway

entrance. When Ferguson first approached the intersection, he saw two vehicles in the three

southbound lanes of Lomo Alto. One vehicle was stopped on Lomo Alto in the left turn lane for

travel eastbound onto Lemmon, yielding the right-of-way to Ferguson. A second vehicle was

stopped in the right turn only lane for travel onto westbound Lemmon, also yielding the right-of

way. Ferguson believed the vehicles were all stopped to allow the fire engine to pass through the

intersection.

       Because the three westbound lanes of Lemmon were blocked, the only alternate route to

continue westbound on Lemmon was the left turn lane for the southbound Dallas North Tollway

entrance. Ferguson continued to slow down and again looked around for oncoming vehicles

before entering the intersection of Lemmon and Lomo Alto. Ferguson “stayed on the air horn”

as he passed through the intersection. Ferguson saw a car driven by Brian Loncar in the center

lane of southbound Lomo Alto about a half block from the intersection. The center lane of

southbound Lomo Alto is a straight-through lane only, and Ferguson believed the car would not

come straight through the intersection because the southbound North Dallas Tollway entrance

ramp was closed and blocked with barrels due to construction. Ferguson believed the car would

hear the emergency siren and horn, see the emergency lights, and stop and yield the right-of-way

like the other two vehicles traveling south on Lomo Alto had done.

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       As Ferguson entered the left-turn only lane, he continued to slow down and looked for

oncoming traffic. Just before Ferguson entered the intersection, William Walters, a firefighter

riding in the engine’s front passenger seat, told Ferguson it was “all clear right.” In a subsequent

affidavit, Walters stated that “all clear right” is commonly understood by drivers and acting

officers within the Dallas Fire-Rescue Department to mean the traffic to the right is clear or is

yielding the right-of-way to an emergency vehicle.

       Ferguson had his foot covering the brake as he entered the intersection, and he was

traveling “at or just under the speed limit” of thirty-five miles per hour. As the engine crossed

the middle of the intersection, it collided with a car driven by Brian Loncar. The Texas Peace

Officer’s Crash Report filed following the accident indicated that Loncar “entered the

intersection with a yellow light into the path of” Ferguson’s engine. A witness stopped at the

intersection indicated Loncar “was accelerating into the intersection” and, in the witness’s

opinion, Loncar was trying to “beat” the yellow light. Another witness stated Loncar “did not

yield” to Ferguson’s engine. Loncar subsequently sued the City, asserting negligence claims.

The City filed a plea to the jurisdiction arguing it retained immunity from suit for Loncar’s

claims. The trial court granted in part and denied in part the City’s plea to the jurisdiction, and

this appeal followed.

       In its first issue, the City argues the trial court erred in denying its plea to the jurisdiction.

Specifically, the City argues it is immune from suit as a result of Ferguson’s official immunity.

       Immunity from suit defeats a trial court’s subject matter jurisdiction and thus is properly

asserted in a plea to the jurisdiction. Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d

217, 225-26 (Tex. 2004). Whether a court has subject matter jurisdiction and whether a pleader

has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction are




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questions of law.     Id. at 226.    Therefore, we review de novo a trial court’s ruling on a

jurisdictional plea. Id.

       When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has

alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Id. We

construe the pleadings liberally in favor of the plaintiffs and look to the pleaders’ intent. Id. If

the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s

jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one

of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. at

226-27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the

jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. at 227.

       However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we

consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional

issues raised, as the trial court is required to do. Id. When the consideration of a trial court’s

subject matter jurisdiction requires the examination of evidence, the trial court exercises its

discretion in deciding whether the jurisdictional determination should be made at a preliminary

hearing or await a fuller development of the case, mindful that this determination must be made

as soon as practicable. Id. Then, in a case in which the jurisdictional challenge implicates the

merits of the plaintiffs’ cause of action and the plea to the jurisdiction includes evidence, the trial

court reviews the relevant evidence to determine if a fact issue exists. Id. If the evidence creates

a fact issue 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 227-28. However, if the

relevant evidence is undisputed or fails to raise a fact issue on the jurisdictional issue, the trial

court rules on the plea to the jurisdiction as a matter of law. Id. at 228.




                                                 –4–
       This standard generally mirrors that of a summary judgment under Texas Rule of Civil

Procedure 166a(c). Id. The standard allows the state in a timely manner to extricate itself from

litigation if it is truly immune. Id. After the state asserts and supports with evidence that the

trial court lacks subject matter jurisdiction, the plaintiffs are required, when the facts underlying

the merits and subject matter jurisdiction are intertwined, to show that there is a disputed

material fact regarding the jurisdictional issue. Id. A summary judgment may be based on

uncontroverted testimonial evidence of an interested witness if the evidence is clear, positive and

direct, otherwise credible and free from contradiction, and could have been readily controverted.

TEX. R. CIV. P. 166a(c); City of San Angelo Fire Dep’t v. Hudson, 179 S.W.3d 695, 698 (Tex.

App.—Austin 2005, no pet.).

       When reviewing a plea to the jurisdiction in which the pleading requirement has been met

and evidence has been submitted to support the plea that implicates the merits of the case, we

take as true all evidence favorable to the nonmovant. Miranda, 133 S.W.3d at 228. We indulge

every reasonable inference and resolve any doubts in the nonmovant’s favor. Id.

       Official immunity is an affirmative defense. Wadewitz v. Montgomery, 951 S.W.2d 464,

465 (Tex. 1997). A governmental employee has official immunity for the performance of

discretionary duties within the scope of the employee’s authority, provided the employee acts in

good faith. Id. at 466. Loncar does not dispute that Ferguson was performing a discretionary

duty and acting within the scope of his employment. Thus, as Loncar concedes in his brief, the

only question in this appeal is “whether the City conclusively established that Ferguson acted in

good faith.”

       A court must measure good faith in official immunity cases against a standard of

objective legal reasonableness, without regard to the employee’s subjective state of mind. Id.

Good faith depends on how a reasonably prudent officer could have assessed the need to which

                                                –5–
an officer responds and the risks of the officer’s course of action, based on the officer’s

perception of the facts at the time of the event. Id. at 467 (applying City of Lancaster v.

Chambers, 883 S.W.2d 650, 656 (Tex. 1994), good faith balancing test in context of emergency

response case). The “need” aspect of the test refers to the urgency of the circumstances requiring

official intervention. Id. In the context of an emergency response, need is determined by factors

such as the seriousness of the crime or accident to which the officer responds, whether the

officer’s immediate presence is necessary to prevent injury or loss of life or to apprehend a

suspect, and what alternative courses of action, if any, are available to achieve a comparable

result. Id. The “risk” aspect of good faith, on the other hand, refers to the countervailing public

safety concerns: the nature and severity of harm that the officer’s actions could cause (including

injuries to bystanders as well as the possibility that an accident could prevent the officer from

reaching the scene of the emergency), the likelihood that any harm would occur, and whether

any risk of harm would be clear to a reasonably prudent officer. Id.

       Here, Ferguson’s affidavit stated he understood that, in making discretionary decisions

during emergency response calls, he must weigh the need to urgently respond to a potentially life

threatening fire against the risk involved to the general public when responding to the

emergency.    Based on his thirty years as a driver engineer for the Dallas Fire-Rescue

Department, Ferguson understood that the activation of an automatic fire alarm is indicative of

the presence of a fire. Although automatic fire alarms can frequently turn out to be false alarms,

emergency responders who are enroute to an emergency call have no way of knowing when an

alarm will be false. Therefore, as an emergency responder, Ferguson has a duty to treat each

emergency call with urgency. Ferguson considered the fact that Lowe’s Home Improvement is a

large commercial structure, it could be a highly flammable structure with a high number of

potential victims, and the call needed to be responded to immediately because persons and

                                               –6–
property could be in imminent danger and the immediate presence of Ferguson’s fire equipment

and fire personnel was necessary to prevent serious injury to potential victims.

       Ferguson’s affidavit stated that, when he increased his speed over the limit on Lemmon,

he believed in good faith that the need to get to the potential fire outweighed the perceived

minimal risk of an accident. Ferguson recognized there was some risk when a driver of a fire

engine makes a decision to increase his speed while responding to a Code 3 call. However,

given that Lemmon is a relatively straight road, the dry condition of the road at the time, and the

vehicles Ferguson saw that were traveling on the roadway but had stopped to yield the right-of-

way to Ferguson’s emergency vehicle, Ferguson did not perceive that increasing his speed on

Lemmon or traveling through the intersection of Lomo Alto and Lemmon at or just under the

speed limit would cause any danger to any other driver close to his location. Ferguson assessed

the need to get to the potential fire quickly against the risk of accident by entering the

intersection and in good faith determined that his emergency lights were clearly visible, his siren

was clearly audible, and the vehicles in the intersection were properly yielding the right-of-way

to his emergency vehicle.

       Ferguson’s affidavit stated that, taking into account all of the above factors, the potential

danger posed by increasing his speed above the 35-mile-per-hour speed limit or traveling

through the intersection of Lomo Alto and Lemmon at or just under the speed limit, was far less

than the danger posed by the potential fire and potential loss of life. Given that Ferguson’s

engine was the closest available firefighting equipment to Lowe’s at that time, he had been

dispatched through the 911 system, and he was expected to respond urgently to provide

firefighting services, Ferguson stated he had no other reasonable alternative but to proceed to the

location in the manner in which he proceeded.




                                                –7–
       In his brief, Loncar argues Ferguson’s testimony is “riddled with inconsistencies.”

Specifically, Loncar cites Ferguson’s testimony that he was slowing the engine as he entered the

intersection and that his foot was on the brake as he entered the intersection. Loncar then cites

arguably contradictory evidence from the “black box” in Ferguson’s engine that Ferguson

“accelerated from the middle of the left turn lane as he entered the intersection . . . the brake was

never engaged” and “the throttle was at 100%.” Loncar argues these inconsistencies alone are

enough for a fact finder to question the veracity of Ferguson’s testimony. In addition, Loncar

cites Ferguson’s affidavit for the proposition that “Ferguson testified that he saw Loncar

approaching the intersection and knew that Loncar had a clear lane of travel and an unobstructed

line of sight.”   Loncar argues Ferguson’s act in proceeding through the intersection was

particularly dangerous given that “Ferguson admits he saw Loncar approaching the intersection

in the center lane of Lomo Alto and knew that the center lane was open for travel into the

intersection.”

       On the contrary, Ferguson’s affidavit indicates he slowed down as he approached the

intersection. Then, after assessing the need to get to the fire quickly against the risk of accident,

he concluded that the danger posed by increasing his speed above the thirty-five mile per hour

speed limit or traveling through the intersection of Loma Alto and Lemmon at or just under the

speed limit was far less than the danger posed by the potential fire and potential loss of life.

Further, Ferguson’s affidavit states he had his “foot covering the brake” as he entered the

intersection, presumably so that he could press the brake pedal more quickly if he needed to.

Ferguson does not state he was pressing the brake with his foot, only that his foot was covering

the brake. Thus, the statements in Ferguson’s affidavit are not inconsistent with evidence from

the “black box” that Ferguson accelerated into the intersection and did not apply his brakes.

Finally, Ferguson states in his affidavit that he saw Loncar’s vehicle approaching the intersection

                                                –8–
but believed Loncar would hear the emergency siren and horn and see the emergency lights and

would stop and yield the right-of-way to Ferguson’s engine as the other two vehicles traveling

south on Lomo Alto had done.

       Citing City of Dallas v. Brooks, 349 S.W.3d 219, 228 (Tex. App.—Dallas 2011, no

pet.), Loncar argues “any reasonably prudent fire fighter would have recognized the risk of harm

created by this conduct.” However, Loncar’s argument imprecisely frames the issue. Brooks

holds that a plaintiff must do more than show that a reasonably prudent officer could have

stopped the pursuit; the plaintiff must show that “no reasonable person in the defendant’s

position could have thought the facts were such that they justified defendant’s acts.” Id. (quoting

Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993)). Additionally, as noted in

Brooks, the supreme court’s opinion in Chambers, which involved a high-speed police pursuit,

described the good faith test as setting “an elevated standard of proof for the nonmovant seeking

to defeat a claim of official immunity in response to a motion for summary judgment, while

reasonably accommodating the competing interests involved.” Id. (quoting Chambers, 883

S.W.2d at 656).

       The legislature has placed a higher burden upon civilian drivers than upon emergency-

vehicle drivers; this burden is justified because emergency vehicle operators face more exigent

circumstances than civilian drivers and because civilian drivers have the advantage of being able

to prevent collisions with emergency vehicles due to the emergency vehicles’ use of sirens and

lights and due to the conspicuous coloring of emergency vehicles. Hudson, 179 S.W.3d at 699-

700. Emergency responders are entitled to presume other drivers will respect emergency

priorities. Id.

       Loncar argues the affidavits of Ferguson and Walters, standing alone, “cannot

conclusively establish what a reasonably prudent officer might believe.” On the contrary, the

                                               –9–
court in Wadewitz noted that Wadewitz relied chiefly on his own affidavit and the affidavit of an

expert witness to establish good faith. See Wadewitz, 951 S.W.2d at 466. The court emphasized

that an expert’s testimony will support summary judgment only if it is “clear, positive and direct,

otherwise credible and free from contradictions and inconsistencies, and could have been readily

controverted.” Id. (quoting TEX. R. CIV. P. 166a(c)). The court determined the evidence did not

conclusively establish Wadewitz acted in good faith because the evidence did not take into

account both sides of the Chambers balancing test and did not, therefore, establish that either

Wadewitz or his expert “had a suitable basis for concluding that a reasonable officer in

Wadewitz’s position could or could not have believed that Wadewitz’s actions were justified.”

Id. at 467.

          The record shows the need to which Ferguson was responding was a potentially life

threatening fire at Lowe’s Home Improvement. Ferguson’s engine was the closest available

firefighting equipment to Lowe’s, and its immediate presence was necessary to prevent injury or

loss of life in the fire. Ferguson drove in the left-turn-only lane because it was the only option

available allowing him to continue westbound on Lemmon in response to the emergency call.

On the other hand, the risks involved were that Ferguson’s engine would collide with another

vehicle or vehicles, resulting in serious injuries or death. However, the road was dry, rush hour

had ended, and Ferguson was operating his emergency siren, horn, and lights.               Although

Ferguson saw Loncar traveling on Lomo Alto, the other cars on Lomo Alto had stopped and

yielded the right-of-way to Ferguson.      We conclude this evidence conclusively established

Ferguson acted in good faith. See Wadewitz, 951 S.W.2d at 465-67. Accordingly, the trial court

erred to the extent it denied the City’s plea to the jurisdiction. We sustain the City’s first issue.

Because of our disposition of the City’s first issue, we need not address the City’s remaining

issues.

                                               –10–
       We reverse the trial court’s judgment to the extent it denied the City’s plea to the

jurisdiction and dismiss those claims for want of jurisdiction. In all other respects, the trial

court’s judgment is affirmed.




                                                  /David L. Bridges/
120705F.P05                                       DAVID L. BRIDGES
                                                  JUSTICE




                                             –11–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

CITY OF DALLAS, Appellant                           On Appeal from the County Court at Law
                                                    No. 3, Dallas County, Texas
No. 05-12-00705-CV         V.                       Trial Court Cause No. CC-09-06753-C.
                                                    Opinion delivered by Justice Bridges.
BRIAN LONCAR AND SUE LONCAR, ET                     Justices Moseley and Lang-Miers
AL., Appellees                                      participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that:
       appellees Brian Loncar, Sue Loncar, individually and as next friends of Hailey
       Loncar, Abby Loncar, and Grace Loncar and Intervenors Raquel Luna,
       individually and as next friend of Victor Luna, Erika Luna, and Miguel Luna take
       nothing on their claims..
       It is ORDERED that appellant CITY OF DALLAS recover its costs of this appeal from
appellees BRIAN LONCAR, SUE LONCAR, INDIVIDUALLY AND AS NEXT FRIENDS OF
HAILEY LONCAR, ABBY LONCAR, AND GRACE LONCAR AND INTERVENOR
RAQUEL LUNA, INDIVIDUALLY AND AS NEXT FRIEND OF VICTOR LUNA, ERIKA
LUNA, AND MIGUEL LUNA.


Judgment entered January 16, 2014




                                                 /David L. Bridges/
                                                 DAVID L. BRIDGES
                                                 JUSTICE




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