                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00012-CV

CAROLYN NORTHCUTT, AS PERSONAL
REPRESENTATIVE OF THE ESTATE
OF JAMES H. BELL,
                                                        Appellants
v.

CITY OF HEARNE,
                                                        Appellee



                           From the 82nd District Court
                             Robertson County, Texas
                          Trial Court No. 12-03-19048-CV


                             DISSENTING OPINION


       I believe that the evidence creates a fact question on the nexus or causal

relationship between Officer Sullivan’s patrol car movements and Bell’s accident and

death. Therefore, I respectfully dissent.

       The Texas Supreme Court just decided a similar case that sets out most of the

applicable law:
              “A unit of state government is immune from suit and liability unless
       the state consents.” Dall. Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542
       (Tex. 2003) (citing Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)).
       Governmental immunity defeats a court’s jurisdiction. Id.                Where a
       government entity challenges jurisdiction on the basis of immunity, “the
       plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a
       valid waiver of immunity.” Id. (citing Tex. Dep’t of Criminal Justice v. Miller,
       51 S.W.3d 583, 587 (Tex. 2001)) (other citations omitted).

              “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.”      Tex. Dep’t of Parks & Wildlife v.
       Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (citing Tex. Ass’n of Bus. v. Tex. Air
       Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). In doing so, “[w]e construe
       the pleadings liberally in favor of the plaintiff[] and look to the pleader[’s]
       intent.” Id. (citing Tex. Air Control Bd., 852 S.W.2d at 446). Where the
       pleadings generate a “fact question regarding the jurisdictional issue,” a
       court cannot sustain the plea to the jurisdiction. Id. at 228.

             The asserted source of waiver is the Texas Tort Claims Act (“TTCA”).
       “The TTCA provides a limited waiver of governmental immunity.”
       Alexander v. Walker, 435 S.W.3d 789, 790 (Tex. 2014) (citing TEX. CIV. PRAC.
       & REM. CODE § 101.023). In relevant part, the statute indicates:

               A governmental unit in the state is liable for:

               (1) 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; and

               (2) personal injury and death so caused by a condition or use of
               tangible personal or real property if the governmental unit would,
               were it a private person, be liable to the claimant according to Texas
               law.

       TEX. CIV. PRAC. & REM. CODE § 101.021. … We review jurisdiction and
       pleading sufficiency de novo. Miranda, 133 S.W.3d at 226.


Northcutt v. City of Hearne                                                                  Page 2
Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 926-27 (Tex. 2015).

       “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,” even where
       those facts may implicate the merits of the cause of action. [Miranda, 133
       S.W.3d] at 227. If that evidence creates a fact issue as to the jurisdictional
       issue, then it is for the fact-finder to decide. Id. at 227-28. “However, if the
       relevant evidence is undisputed or 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 228. In considering this evidence, we “take as true all
       evidence favorable to the nonmovant” and “indulge every reasonable
       inference and resolve any doubts in the nonmovant’s favor. Id.

City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009).

       In her petition, Appellant Carolyn Northcutt asserts waiver under section

101.021(2) and makes the following factual allegations:

              On April 10, 2010, James H. Bell (“Bell”) was driving his motorcycle
       northbound on Hwy 79 within the city limits of Hearne, Robertson County,
       Texas at approximately 9:49 p.m. Officer Christopher Sullivan (“Sullivan”),
       who was acting in the course and scope of his employment with the Hearne
       Police Department, had hidden his patrol car in a private driveway (with
       the patrol car lights off), setting up a speed trap. As Mr. Bell approached
       the speed trap on his motorcycle, Sullivan pulled the patrol vehicle out of
       the private driveway to pursue a northbound vehicle (traveling ahead of
       Mr. Bell’s motorcycle northbound on Hwy 79) for a traffic violation.
       Sullivan flipped on his lights and pulled the patrol vehicle out of the private
       driveway onto the shoulder in such a way to cause Bell to swerve to avoid
       contact. As a result of such evasive action, Bell lost control of his motorcycle
       and it flipped onto its side, throwing Bell onto the highway. Defendant
       Ewing, traveling northbound on Hwy 79, failed to take evasive action and
       struck Bell. Bell died as a result of the accident.

       Northcutt’s negligence cause of action against Hearne states:

              Defendant City of Hearne is a governmental unit that employed
       Christopher Sullivan as a peace officer. At the time of plaintiff’s injury,
       Sullivan was on duty and in a City of Hearne police motor vehicle and
       acting within the course and scope of employment for Defendant City of
       Hearne. Sullivan acted negligently in numerous respects. Sullivan would

Northcutt v. City of Hearne                                                               Page 3
          be personally liable to Plaintiff under Texas law. Sullivan’s negligence
          proximately caused Bell’s injuries and death.1

          Sullivan’s affidavit states in relevant part:

                 On the evening of April 10, 2010, at approximately 9:50 p.m., I was
          on duty as a patrol officer with the City of Hearne Police Department and
          was monitoring traffic on the south side of the City of Hearne along
          Highway 79. To place myself in a position where I could observe traffic
          coming into the City, I backed my patrol car into a short gravel driveway
          that led from Highway 79 into the GATX rail yard. From this position, I
          could see, to my left, in a southerly direction down Highway 79. From that
          location, I could see motor vehicle traffic as it entered the City of Hearne. I
          sat with my window down.

                 At approximately 9:50 p.m. on April 10, 2010, I observed a motor
          vehicle with only one functioning headlight approaching from the south.
          Behind that motor vehicle, I could see another motor vehicle coming and a
          motorcycle behind the second motor vehicle. As the motor vehicle with the
          non-functioning headlight approached, I put my car into drive with my
          headlights and taillights on. As that motor vehicle passed me, I started
          moving slowly forward and turned right very slowly (going north) onto the
          shoulder of Highway 79. The second motor vehicle that I observed behind
          the motor vehicle with the defective headlight passed safely. As I had seen
          the motorcycle behind the second motor vehicle, I stayed on the shoulder
          of Highway 79 moving very slowly with my headlights and taillights
          operating waiting for the motorcycle to pass. My window was rolled down.
          I heard the sound of metal and plastic colliding with the ground. I looked
          in my rearview mirror to see that the motorcycle had fallen to the pavement
          approximately 100 feet behind my vehicle. When I heard the sound of the
          motorcycle crash on the road, I was still sitting on the shoulder of Highway
          79 with my headlights and taillights on. I did not pull onto Highway 79
          until after I heard the sound of the motorcycle accident and saw the
          motorcycle rider on the ground. At that time, I pulled onto the highway,
          turned on my overhead emergency lights and made a U-turn to render aid
          to the driver of the motorcycle.

                  As I was aware of the two motor vehicles and the motorcycle
          following, I took care to keep my vehicle well on the shoulder and off of the
          traffic lane of Highway 79 until after the motorcycle passed. Neither the
          first motor vehicle (with the non-functioning headlight) nor the second

1
    Hearne apparently did not specially except to Northcutt’s negligence allegations.

Northcutt v. City of Hearne                                                                 Page 4
       motor vehicle had to take any evasive action to avoid my car as they passed
       me on Highway 79. My car was on the shoulder as the motorcycle
       approached my position. At no time between the time that I first observed
       the motor vehicle with the non-functioning headlight until after the
       motorcycle accident did I pull into the traffic lane of Highway 79. The
       motorcycle did not contact or collide with my vehicle.

       In Ryder, which was a jurisdictional challenge to the plaintiff’s pleadings, the

supreme court addressed a somewhat similar factual situation and whether the injury

arose from the allegedly negligent use of a deputy sheriff’s cruiser. As in this case, there

was no genuine dispute that the officer was operating his vehicle. See Ryder, 453 S.W.3d

at 928. Sullivan admits in his affidavit that he put his car in drive, and with his headlights

and taillights on, he “started moving slowly forward and turned right very slowly (going

north) onto the shoulder of Highway 79.” And as in Ryder, the issue is whether Bell’s

accident and death arose from Sullivan’s allegedly negligent use of his patrol car:

              The question, then, is whether the alleged harm arose from Deputy
       Thumann’s arguably negligent use of the cruiser. The statute itself does not
       define “arises from.” We have defined this standard as a “nexus between
       the operation or use of the motor-driven vehicle or equipment and a
       plaintiff’s injuries.” Whitley, 104 S.W.3d at 543 (citations omitted). We have
       also described the threshold as something more than actual cause but less
       than proximate cause. See Utica Nat’l Ins. Co. of Tex. v. Am. Indem. Co., 141
       S.W.3d 198, 203 (Tex. 2004) (“‘[A]rise out of’ means . . . there is but[-]for
       causation, though not necessarily direct or proximate causation.”).
       Accordingly, a plaintiff can satisfy the “arising from” standard by
       demonstrating proximate cause. This is particularly appropriate in the
       context of the TTCA, which only reaches injuries “proximately caused by the
       wrongful act or omission or the negligence of an employee.” TEX . CIV . PRAC.
       & REM . CODE § 101.021(1).

              The components of proximate cause are cause in fact and
       foreseeability. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005).
       Because proximate cause is ultimately a question for a fact-finder, we need
       only determine whether the petition “creates a fact question” regarding the
       causal relationship between Thumann’s conduct and the alleged injuries.

Northcutt v. City of Hearne                                                             Page 5
        Miranda, 133 S.W.3d at 228; see also Ark. Fuel Oil Co. v. State, 280 S.W.2d 723,
        729 (Tex. 1955) (“Question[s] of causation such as proximate cause are
        normally treated as questions of fact unless reasonable minds cannot
        differ.”).

Ryder, 453 S.W.3d at 928-29.

        Similarly,2 our task is to determine whether the evidence creates a fact question on

the nexus or causal relationship between Sullivan’s conduct and Bell’s accident and

death. Northcutt directs us to the investigating DPS trooper’s accident report (“Texas

Peace Officer’s Crash Report”) in asserting that there is a fact question. The report, which

was admitted into evidence at the plea hearing, contains the following “investigator’s

narrative opinion of what happened”:

        #1 [Bell’s motorcycle] on US 79, entering the Hearne city limits. There was
        a Hearne Police Department patrol unit parked in a private drive on the NB
        side of the roadway, observing vehicular traffic. There was also a truck in
        front of #1 that was displaying a defective head lamp. The Hearne patrol
        unit turned out of the private drive and onto the NB improved shoulder, in
        preparation to allow #1 to pass his location, so he could conduct a legal and
        valid stop on the truck. Thinking that the patrol unit was going to pull out
        in front of him, the driver of #1 applied its brakes and in doing so lost
        control, causing #1 to fall onto it’s [sic] right side. The driver of #1 was
        ejected and came to rest in the NB lane of traffic, facing S. An autopsy and
        toxicology was conducted on the driver of #1. This revealed no alcohol
        and/or narcotics in the driver of #1’s system at the time of the crash.

But as the majority correctly notes, Hearne objected to the admission of the report on

hearsay grounds. The trial court sustained the objection, admitted the report except as to

any hearsay, and stated that it would “look more at the time, date, and things of that

nature.” Accordingly, I agree with the majority that the investigating trooper’s narrative



2
 The only difference is that Ryder was decided on the pleadings. While we must look at the evidence, the
nexus and causation law in Ryder still applies.

Northcutt v. City of Hearne                                                                      Page 6
opinion in the report on how the crash occurred is not before us. I disagree, however,

with the majority that the only evidence before us is Sullivan’s affidavit because the

“time, date, and things of that nature” in the DPS trooper’s accident report are before us,

just as was considered by the trial court.

        Turning to Sullivan’s affidavit and to the “time, date, and things of that nature” in

the report, the evidence—both the direct and circumstantial evidence,3 and its reasonable

inferences—creates a fact question on the nexus or causal relationship between Sullivan’s

patrol car movements and Bell’s accident and death.                       As noted above, the factual

allegation in Northcutt’s petition is that Bell took evasive action in response to Sullivan’s

pulling his patrol car onto the shoulder as Bell was approaching. Our review of the

evidence is de novo, and we “take as true all evidence favorable to the nonmovant

[Northcutt]” and “indulge every reasonable inference and resolve any doubts in the

nonmovant’s [Northcutt’s] favor.” Kirwan, 298 S.W.3d at 622 (quoting Miranda, 133

S.W.3d at 228).


3
 The majority asserts that there is no evidence of Bell’s “thoughts” before he lost control of his motorcycle.
But a person’s “state of mind can—indeed, must usually—be proved by circumstantial evidence.” Bentley
v. Bunton, 94 S.W.3d 561, 596 (Tex. 2002); see Richardson v. Crawford, No. 10-11-00089-CV, 2011 WL 4837849,
at *8 (Tex. App.—Waco Oct. 12, 2011, pet. denied) (in negligence case, holding that investigating police
officer could testify about person’s intent to steal) (citing and quoting Lee v. State, 29 S.W.3d 570, 577 (Tex.
App.—Dallas 2000, no pet.) (“Police officers may testify to explain how the investigation began and how
the defendant became a suspect.”); Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (stating that
intent may “be inferred from circumstantial evidence[,] such as acts, words, and the conduct of the
appellant”); Osbourn v. State, 92 S.W.3d 531, 536-37 (Tex. Crim. App. 2002) (noting that although police
officers typically testify as qualified experts under Texas Rule of Evidence 702, an officer may also be
considered a lay witness under Texas Rule of Evidence 701); Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim.
App. 1977) (holding that police officers may generally offer lay-opinion testimony concerning matters
about which they have personal knowledge and experience in their employment as a law enforcement
officer and specifically concerning the meaning of certain behavior of criminal suspects they encounter);
Ledesma v. State, 677 S.W.2d 529, 531 (Tex. Crim. App. 1984) (noting that the requisite culpable mental state
may be inferred from the surrounding circumstances)). Plainly, the facts and reasonable inferences detailed
below are not speculative but are grounded in the record’s direct and circumstantial evidence.

Northcutt v. City of Hearne                                                                             Page 7
        Sullivan’s affidavit states that Bell’s accident occurred at approximately 9:50 p.m.

on April 10.        The report confirms that time and date.                    The report’s section for

“Environmental and Roadway Conditions” identifies the light condition as dark and not

lighted and the weather condition as being cloudy.4 The report identifies the roadway

type as two-way and not divided, the roadway alignment as straight and level, and the

roadway’s surface as dry. The report notes that the highway’s speed limit was 60 mph.

The investigating officer factually asserts that Bell’s autopsy and toxicology revealed no

alcohol or narcotics in his system at the time of the crash.

        Sullivan’s affidavit sets forth the following facts that, combined with the

investigative report’s facts, are relevant to Northcutt’s theory that Bell took evasive action

in response to Sullivan’s patrol car movements:

       Sullivan had backed his patrol car into a short gravel driveway, and to his left (to
        the south) he could see highway traffic as it was entering Hearne. Sullivan’s patrol
        car was thus perpendicular to the highway.

       Before Sullivan pulled out of the driveway and onto the shoulder, he could see, in
        addition to the vehicle with a nonfunctioning headlight, another motor vehicle and
        Bell’s motorcycle coming toward him.

       As the vehicle with a nonfunctioning headlight approached him, Sullivan put his
        patrol car in drive, and his headlights and taillights were on. It was dark.


4
  The report’s section for “Environmental and Roadway Conditions” sets out the codes for each category
in that section, but the copy of the report that was admitted and is in the record omits the “Texas Peace
Officer’s Crash Report – Code Sheet” that identifies the codes that are used in the report. The Texas
Department of Transportation develops and promulgates the Texas Peace Officer’s Crash Report form. See
Tex. Dep’t of Transp. v. Tex. Weekly Advocate, No. 03-09-00159-CV, 2010 WL 323075, at *1 (Tex. App.—Austin
Jan. 29, 2010, no pet. (mem. op.) (citing TEX. TRANSP. CODE ANN. §§ 550.0601, 550.064). To ascertain the
codes used in the report, I would take judicial notice of the “Texas Peace Officer’s Crash Report – Code
Sheet”       form        (Form       CR-3CS,        available       at      ftp://ftp.dot.state.tx.us/pub/txdot-
info/trf/crash_notifications/cr3_code_sheet.pdf). TEX. R. EVID. 201(b, c); see also MCI Sales & Serv., Inc. v.
Hinton, 272 S.W.3d 17, 26 n.5 (Tex. App.—Waco 2008) (judicial notice may be taken for the first time on
appeal), aff’d, 329 S.W.3d 475 (Tex. 2010), cert. denied, 131 S.Ct. 2903 (2011).

Northcutt v. City of Hearne                                                                             Page 8
       Because Sullivan’s headlights and taillights were on and he could see the two
        vehicles and Bell’s motorcycle, it is a reasonable inference that Bell could see
        Sullivan’s patrol car and the movements that it was making.

       The speed limit was 60 miles per hour (88 feet per second), and it is a reasonable
        inference that the two vehicles and Bell were traveling at or near the speed limit.

       As the vehicle with a nonfunctioning headlight passed him, Sullivan started
        moving forward slowly. Because Sullivan’s patrol car had been parked
        perpendicular to the highway, that forward movement would have been
        westward and perpendicular to the north-south highway.

       Sullivan turned right (north) very slowly onto the highway shoulder, and the
        second vehicle passed him.

       Sullivan continued moving very slowly on the shoulder with his headlights and
        taillights on and was waiting for the motorcycle to pass him. Because Sullivan’s
        patrol car was moving, it is a reasonable inference that he was not braking and that
        his brake lights were not on.

       Bell’s motorcycle crashed approximately 100 feet behind Sullivan’s patrol car. At
        60 miles per hour, Bell’s motorcycle crashed approximately 1.1 seconds from
        Sullivan’s patrol car.

       In his affidavit, Sullivan does not expressly state that Bell took evasive action to
        avoid Sullivan’s patrol car, but his affidavit does state: “Neither the first motor
        vehicle (with the non-functioning headlight) nor the second motor vehicle had to
        take any evasive action to avoid my car as they passed me on Highway 79.” It is
        a reasonable inference that the reason for Sullivan’s statement that the two vehicles
        did not have to take evasive action is Sullivan’s unstated view that Bell did take
        evasive action to avoid Sullivan’s patrol car.5 In other words, Sullivan’s view is
        that Bell took evasive action to avoid Sullivan’s patrol car but he did not need to
        have done so because the two vehicles did not have to take evasive action to avoid
        his patrol car.

       The highway surface was dry, and the highway was straight and level; it was not
        wet or slick, and Bell was not navigating a curve. Bell was not under the influence
        of alcohol or narcotics.
5
 Furthermore, it is irrelevant that the first vehicle (with the non-functioning headlight) did not have to take
evasive action because Sullivan plainly states that he did not start moving and pull his patrol car onto the
shoulder until that first car was passing him. Also, it is obvious that a motorcyclist has a much different
and more serious concern than a motor vehicle driver when the motorcyclist observes that another vehicle
might be pulling out in front of him.

Northcutt v. City of Hearne                                                                             Page 9
        In conclusion, after carefully conducting a de novo review of the evidence, and

after indulging every reasonable inference and resolving any doubts in Northcutt’s favor,

I conclude that the evidence creates a fact question on the nexus or causal relationship

between Sullivan’s patrol car movements6 and Bell’s accident and death.7 Accordingly, I

would reverse the trial court’s order granting the City of Hearne’s plea to the jurisdiction

and would remand the case to the trial court for further proceedings.




                                                           REX D. DAVIS
                                                           Justice

Delivered and filed July 30, 2015




6
 This conclusion is not an expression that Sullivan was negligent, but only that a fact question exists on the
nexus or causal relationship between Sullivan’s patrol car movements and Bell’s accident and death for
purposes of waiver of governmental immunity under the TTCA. See Ryder, 453 S.W.3d at 928 (“We express
no opinion as to Thumann’s actual culpability”).

7
 Based on the evidence that I have detailed and its patently reasonable inferences, I disagree that it is “pure
speculation” that Bell took evasive action in response to Sullivan’s patrol car movements. Also, if the
evidence permits two inferences, equally consistent with two facts, neither fact may be inferred. City of
Keller v. Wilson, 168 S.W.3d 802, 813-14 (Tex. 2005); see also Muela v. Gomez, 343 S.W.3d 491, 496 (Tex. App.—
El Paso 2011, no pet.) (“When circumstantial evidence is so slight that the choice between opposing
plausible inferences amounts to nothing more than speculation, it is legally no evidence at all.”) (citing
Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001)). The equal-inference rule is not applicable here because
the evidence, including the road conditions and Bell’s lack of impairment, does not support a reasonable
inference that some other reason (other than Bell’s taking evasive action to avoid Sullivan’s patrol car)
caused Bell to lose control of his motorcycle and to wreck.

Northcutt v. City of Hearne                                                                           Page 10
