CITY OF AMARILLO, Pеtitioner, v. Erica Shae MARTIN, Respondent.
No. 96-0123.
Supreme Court of Texas.
Decided June 5, 1998.
Argued Oct. 9, 1997.
Glynn C. Turquand, Brian Douglas Walters, San Antonio, for Respondent.
ENOCH, Justice, delivered the opinion of the Court, in which GONZALEZ, HECHT, OWEN, BAKER, ABBOTT, and HANKINSON, Justices, join.
Firefighter Brent Clark collided with two vehicles while driving a City of Amarillo fire truck on an emergency call. We must decide whether the City, Clark‘s employer, may be liable to Erica Martin, the driver of one of the other vehicles, for Clark‘s simple negligence. The trial court said yes. So did the
I. Facts
Clark was driving the fire truck with warning lights and sirens operating when he approached an intersection. He reduced speed, but drove through the intersection against a red light. He then collided with two vehicles crossing the intersection, one of them Martin‘s. Martin sued the City for property damage, alleging that Clark negligently failed to maintain a proper lookout, to maintain a safe stopping distance, and to yield the right of way.
Following a bench trial, the trial court rendered judgment for Martin based on a conclusion of law that Clark had operated the fire truck negligently. The City appealed, arguing that emergency personnel are liable only for reckless conduct, and therefore, the City was entitled to immunity because the trial court found that Clаrk “was not acting in reckless disregard for the safety of others.” The court of appeals affirmed, holding on rehearing that emergency personnel are liable for acts of mere negligence, and, therefore, that the trial court did not err. 912 S.W.2d at 353.
II. Texas Tort Claims Act
Under the common-law doctrine of sovereign immunity, a municipality is immune from tort liability for its own acts or the acts of its agents unless the Texas Tort Claims Act waives immunity. See City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994). The Tort Claims Act waives sovereign immunity 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....
This chapter does not apply to a claim arising:
...
(2) 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 actiоn, or in the absence of such a law or ordinance, if the action is [not] taken with conscious indifference or reckless disregard for the safety of others.1
At the outset, we note that the substantive law in effect at the time of the accident controls. See, e.g., Sadler v. Sadler, 769 S.W.2d 886, 886-87 (Tex. 1989) (per curiam). Under emergency conditions, an emergency vehicle operator is entitled to various privileges. See
Because article 6701d controls Clark‘s action as an emergency vehicle operator in an emergency situation, we look to see if Clark complied with that article. Specifically, we review section 24(e) of article 6701d.
III. Interpretation of Article 6701d, Section 24(e)
The court of appeals is not alone in struggling to understand section 24(e). The Legislature adopted section 24(e) from the Uniform Vehicle Code. Many other states have drafted statutes from the same model, and their courts have also struggled to understand what it means to say that an emergency vehicle driver should exercise due regard for others while responding to an emergency, but must face the consequences of reckless disregard for others.
Several courts have agreed with the court of appeals thаt provisions such as section 24(e) impose liability for mere negligence. See Doran v. City of Madison, 519 So. 2d 1308, 1312-13 (Ala. 1988); Estate of Aten v. City of Tucson, 169 Ariz. 147, 817 P.2d 951, 955 (1991); City of Little Rock v. Weber, 298 Ark. 382, 767 S.W.2d 529, 533 (1989); Barnes v. Toppin, 482 A.2d 749, 755 (Del. 1984); City of Baltimore v. Fire Ins. Salvage Corps, 219 Md. 75, 148 A.2d 444, 447 (1959); City of Kalamazoo v. Priest, 331 Mich. 43, 49 N.W.2d 52, 54 (1951); Cairl v. City of St. Paul, 268 N.W.2d 908, 912 (Minn. 1978); Wright v. City of Knoxville, 898 S.W.2d 177, 179-80 (Tenn. 1995); Estate of Cavanaugh v. Andrade, 202 Wis. 2d 290, 550 N.W.2d 103, 114-15 (1996).
Many other courts also have imposed liability for mere negligence, but placed great emphasis on the circumstances of emergency action. See Rutherford v. Alaska, 605 P.2d 16, 18-19 & n. 5 (Alaska 1979); Torres v. City of Los Angeles, 58 Cal. 2d 35, 22 Cal. Rptr. 866, 372 P.2d 906, 916 (1962); Bouhl v. Smith, 130 Ill. App. 3d 1067, 86 Ill. Dec. 247, 475 N.E.2d 244, 246-47 (1985); Belding v. Town of New Whiteland, 622 N.E.2d 1291, 1293 (Ind. 1993); Thornton v. Shore, 233 Kan. 737, 666 P.2d 655, 661 (1983); Stenberg v. Neel, 188 Mont. 333, 613 P.2d 1007, 1010 (1980); Lee v. City of Omaha, 209 Neb. 345, 307 N.W.2d 800, 803 (1981); Fielder v. Jenkins, 274 N.J. Super. 485, 644 A.2d 666, 668 (Ct. App. Div. 1994); Siburg v. Johnson, 249 Or. 556, 439 P.2d 865, 870 (1968); Brown v. Spokane County Fire Protection Dist. No. 1, 100 Wash. 2d 188, 668 P.2d 571, 574-76 (1983). Of course, a negligence inquiry always considers what a reasonably prudent person would do under the same or similar circumstances. See, e.g., St. John v. Pope, 901 S.W.2d 420, 423 (Tex. 1995). Therefore, the emphasis these cases place on the emergency circumstances seems to indicate an intent to creаte a modified, heightened negligence threshold.
But, courts in Iowa, Louisiana, New York, Rhode Island, and Vermont have held that provisions such as section 24(e) only waive immunity for recklessness. See Schatz v. Cutler, 395 F. Supp. 271, 274 (D. Vt. 1975) (interpreting the Vermont statute as imposing a recklessness, or “aggravated negligence,” standard); Morris v. Leaf, 534 N.W.2d 388, 390 (Iowa 1995) (equating “due regard” with negligence generally, but concluding that it means recklessness in this context); Smith v. Commercial Union Ins. Co., 609 So. 2d 1024, 1027 (La. Ct. App. 1992) (“The driver of an emergency vehicle can only be held liable for negligence to the degree that it constitutes reckless disregard for the safety of others.“); Saarinen v. Kerr, 84 N.Y.2d 494, 620 N.Y.S.2d 297, 644 N.E.2d 988, 989 (1994); Roberts v. Kettelle, 116 R.I. 283, 356 A.2d 207, 213-14 (1976).
From our inquiry, it is evident that most courts have interpreted provisions such as section 24(e) to impose liability for negligence. However, as noted above, many of the courts simultaneously established a negligence standard, but went to great lengths to explain that negligence for emergency vehicle operators is not at all comparable to negligence for civilian drivers. See, e.g., Thornton, 666 P.2d at 661 (noting that one of the circumstances to be considered in the negligence inquiry is the emergency vehicle operator‘s right to assume that other drivers will yield). Ultimately, we fail to see how this modified-negligence inquiry is meaningfully different from thе recklessness standard that we adopt today. More particularly, we believe that a recklessness standard provides a better-defined standard than “heightened negligence.”
Furthermore, emergency vehicle operators and their governmental employers, in most states, are immune from suits based on negligence because the employees’ official immunity is waived only for more culpable conduct, such as gross negligence, bad faith, or willful or wanton conduct. See, e.g., Logue v. Wright, 260 Ga. 206, 392 S.E.2d 235, 237 (1990); Cooper v. Wade, 218 Mich. App. 649, 554 N.W.2d 919, 923 (1996); Creighton v. Conway, 937 S.W.2d 247, 250-51 (Mo. Ct. App. 1996); Canico v. Hurtado, 144 N.J. 361, 676 A.2d 1083, 1085 (1996); Fahnbulleh v. Strahan, 73 Ohio St. 3d 666, 653 N.E.2d 1186, 1188 (1995). Therefore, a substantial majority of states provide some form of immunity barring suit against governmentаl employers or employees based on negligent operation of emergency vehicles. Whatever form such immunity takes, the underlying policy is the same: to balance the safety of the public with the need for prompt responses to police, fire, and medical emergencies. In light of that need, and the privileges granted to
Basic principles of statutory construction disfavor the court of appeals’ holding that the duty of “due regard” imposes liability for mere negligence. First, the court of appeals erred in focusing on the “due regard” phrase to the almost total exclusion of the “reckless disregard” phrase in the same sentence. Seсtion 24(e) of article 6701d states that the privileges granted in that section do not relieve an emergency vehicle operator of “the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.”
Second, the Legislature specifically excluded operation of emergency vehicles in emergency situations from the general waiver of immunity for negligent operation of governmental vehicles. Sеe
Third, having liability predicated on reckless conduct better serves the public‘s interest in minimizing emergency response delays. We agree with the concerns expressed by the New York Court of Appeals in declining to interpret a provision similar to section 24(e) to impose liability for mere negligence:
As a practical matter, use of the undemanding ordinary negligence test—or even the more “flexible” common-law negligence test that is applied in emergency situations—would lead to judicial “second-guessing” of the many split-second decisions that are made in the field under highly pressured conditions. Further, 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.
Saarinen, 644 N.E.2d at 992 (citations omitted). Using recklessness as the threshold for imposing liability is like-
“(1) the injustice ... of subjecting to liability [an emergency vehicle operator] who is required, by the legal obligations of his position, to exercise discretion; [and] (2) the danger that the threat of such liability would deter his willingness to execute his offiсe with the decisiveness and the judgment required by the public good” [with] the rights of bystanders or other innocent parties if [the emergency vehicle operator] acts in gross disregard of public safety.
Chambers, 883 S.W.2d at 656 (quoting Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)) (emphasis added).
We note that this Court has twice cited section 24(e) and discussed only its “due regard” prong, equating it with a negligence standard. See Chambers, 883 S.W.2d at 653; Travis v. City of Mesquite, 830 S.W.2d 94, 98-99 (Tex. 1992). Our opinion today is consistent with both Chambers and Travis. We agree that section 24(e) imposes a duty to drive with due regard for others by avoiding negligent behavior, but it only imposes liability for reckless conduct.3
The dissent does not disagree with our conclusion that article 6701d, section 24(e) imposes liability only for reckless conduсt. At 432. However, the dissent insists that recklessness is not a requisite for liability unless the conduct is specifically enumerated as a privilege in section 24. At 433. For all other conduct, the dissent would impose liability for mere negligence. The facts of this case show why the dissent‘s position is flawed. Clark, in fact, was proceeding through a red light when the accident occurred. Proceeding through a red light is a specifically enumerated privilege of emergency vehicles in emergency situations. See
Furthermore, we think that our reading of section 24 better comports with the Legislature‘s understanding of the emergency vehicle statute. Courts in other states have looked at the “due regard” clause that was taken from the same model act as section 24 and perfunctorily equated it with negligence. See, e.g., Wright, 898 S.W.2d at 180. In 1995, when the Legislature codified section 24 as section 546.005 of the new Transportation Code, it replaced the phrase “due regard“:
This chapter does not relieve the operator of an authorized emergency vehicle from:
(1) the duty to operate the vehicle with appropriate regard for the safety of all persons; or
(2) the consequences of reckless disregard for the safety of others.
By imposing a double standard for liability, one for emergency vehicle operators in emergency situations and one for civilian drivers, the Legislature has placed a heavier burden on the civilian drivers. Several policy considerations support this heavier burden. First, emergency vehicle operators typically face more exigent circumstances than do civilian drivers. Emergency vehicle operators are charged with protecting the public‘s health, safety, and property, and a few minutes or even seconds can make the difference between life and death.
Third, emergency vehiсle operators must routinely make risky judgment calls in emergency situations. It is unfortunate that some civilian drivers are less than vigilant in abiding by their duties to keep a lookout for and to yield to emergency vehicles, but emergency vehicle operators are entitled to presume that other drivers will respect emergency priorities.
IV. Application and Conclusion
For Martin to prevail, she must assert and establish that she proved that Clark was reckless as a matter of law. Martin has done neither. In light of the trial court‘s unchallenged conclusion that Clark was not reckless, we reverse the court of appeаls’ judgment and render judgment for the City.
SPECTOR, J., filed a dissenting opinion, in which PHILLIPS, C.J., joined.
SPECTOR, Justice, joined by PHILLIPS, Chief Justice, dissenting.
Under what circumstances does the driver of an emergency vehicle have a duty to drive with due regard for the safety of others as required by article 6701d, section 24(e) of the Revised Civil Statutes? The majority today answers never. I dissent.
Although canons of statutory construction require us to give effect to all the words of the statute if possible, see
It is possible to give effect to both clauses of section 24(e) while still protecting emergency drivers’ ability to perform their duties. I would hold that the reckless disregard standard applies to the specific activities that emergency vehicle drivers are privileged to perform under section 24(c) and the due regаrd standard applies to all other conduct.
The relevant subsections of section 24 in force at the time of the accident stated in full:
(b) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.
(c) The driver of an authorized emergency vehicle may:
1. Park or stand, irrespective of the provisions of this chapter;
2. Proceed past a red or stop signal or stop sign, but only аfter slowing down as may be necessary for safe operation;
3. Exceed the maximum speed limits so long as he does not endanger life or property;
4. Disregard regulations governing direction of movement or turning in specified directions.
(d) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible and visual signals meeting the requirements of Section 124 of this Act, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a red light visiblе from in front of the vehicle.
(e) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.
Act of April 19, 1971, 62nd Leg., R.S., ch. 83, § 11, 1971 Tex. Gen. Laws 722, 727-28 (formerly codified at
This chapter does not relieve the operator of an authorized emergency vehicle from:
(1) the duty to operate the vehicle with appropriate regard for the safety of all persons; or
(2) the consequences of reckless disregard for the safety of others.
The quoted provisions of section 24 as a whole suggest a way to give effect to both the due regard and reckless disregard clauses of section 24(e). Subsection (b) grants emergency operators “the privileges set forth in this section,” which are “subject to the conditions herein stated.” Subsection (c) defines the acts of emergency drivers which are privileged and, by implication, which ones are not. Subsection (d) limits the privilege to drivers who use the required warning lights and sirens, but leaves unresolved the obvious issue of whether the privilege is absolute or limited by some requirement of care. Subsection (e) provides the answer to that question. It announces two standards of liability that correspond to the two categoriеs of conduct—privileged and non-privileged—established by subsection (c). Privileged acts are protected from liability, but not if they are done recklessly; all other acts of emergency drivers are held only to a due regard or negligence standard.
This construction furthers the Legislature‘s decision to extend special protection to the conduct specified in section 24(c), and that conduct only. Each of the activities privileged by subsection (c), although potentially dangerous, deserves protection because it directly enhances the driver‘s ability to respond to the emergency call. The majority is correct that protecting those activities “serves the public‘s interest in minimizing emergency response delays.” At 430.
The majority fails to recognize, however, that many other risky activities in which an emergency driver might engage do not serve this public interest and therefore should not be exempt from ordinary rules of liability. On the contrary, the public interest in prompt and effective emergency response makes it all the more important that emergency vehicle operators not be careless in these other aspects of thеir driving. As one of our sister courts has observed:
The object of a fire truck‘s journey is not merely to make a show of rushing to a fire, but actually to get there. If the driver is to ignore all elements of safety driving at breakneck speed through obviously imperilling hazards, he may not only kill others en route, but he may frustrate the whole
object of the mission and not get there at all!
Horsham Fire Co. No. 1 v. Fort Wash. Fire Co. No. 1, 383 Pa. 404, 119 A.2d 71, 75 (1956).
For example, the Legislature surely did not intend section 24 to relieve emergency vehicle operators of liability for negligence if they drive after having a few beers or while taking medication that slows their reaction time, or as happened in another case wе decide today, if they fail to wear required corrective lenses. See Kolster v. City of El Paso, 972 S.W.2d 58 (Tex. 1998). Unlike speeding and running red lights, this type of careless behavior does not contribute in any way to the driver‘s ability to reach the emergency scene quickly. Yet under the majority‘s holding, an injured bystander cannot recover from an emergency vehicle operator who causes an accident by engaging in such behavior unless the emergency driver was reckless. This expansion of section 24‘s narrowly drawn privilege is unwarranted both as a matter of statutory interpretation and as a matter of public pоlicy.
The majority argues that a negligence standard is overly demanding given the exigent circumstances that emergency vehicle drivers face. But as courts in other states with similar statutes have long recognized, negligence is a relative concept. A proper negligence inquiry does not “measure [the conduct of emergency vehicle drivers] by exactly the same yardstick as the actions of the operators of conventional vehicles.” City of Baltimore v. Fire Ins. Salvage Corps, 219 Md. 75, 148 A.2d 444, 448 (1959). Rather, the factfinder must determine whether the defendant‘s non-privileged conduct met the standard of a reasonable emergency vehicle driver in light of all the circumstances.2
Among the relevant circumstances are the legal privileges of emergency drivers and the corresponding duties imposed on the drivers around them. For example, because article 6701d, section 75(a) requires other drivers to pull over and yield when an emergency vehicle approaches, it is reasonable for an emergency driver to act on the assumption that other drivers will comply with the law and yield the right of way unless it becomes apparent that they will not or cannot do so. See Brown v. Spokane County Fire Protection Dist. No. 1, 100 Wash. 2d 188, 668 P.2d 571, 575 (1983); Shawnee Township Fire Dist. No. 1 v. Morgan, 221 Kan. 271, 559 P.2d 1141, 1147 (1977). Similarly, although an emergency driver‘s failure to maintain a proper lookout is not privileged and therefore would be subject to a negligence standard, the relevant circumstances would include the fact that emergency drivers are privileged to travel at high speeds which reduces the time reasonably available for lookout. This negligence test respects emergency drivers’ need to take risks and make split-second decisions without insulating them from responsibility when they fail to exercise “the degree of care and vigilance which circumstances reasonably impose.” City of Baltimore, 148 A.2d at 448.
Thе Court‘s decision today frustrates the Legislature‘s intent to require due and appropriate care by emergency vehicle drivers. Serious accidents involving emergency vehicles continue to be a significant public safety problem in our state. For example, Texas ranks second nationwide in the number of persons killed in police chases, with 459 deaths since 1980. See Deadly Pursuits, PORTLAND OREGONIAN, Jan. 22, 1998, at D1 (citing statistics compiled by National Highway Transportation Safety Administration). This shocking figure does not include people killed by fire engines, ambulances, or police cars involved in emergenciеs other than the pursuit of suspects, nor does it include the much higher number of nonfatal injuries in collisions involving emergency vehicles. Contrary to the majority‘s suggestion, it is entirely appropriate for us to consider these facts. The Code Construction Act authorizes courts to take account of, among other things, the object sought to be attained by the statute, the circumstances under which it was enacted, and the consequences of a particular construction.
Because this dissenting opinion articulates a new legal standard by which to judge the liability of emergency vehicle drivers, I would reverse and remand for a new trial in the interest of justice. See City of Lancaster v. Chambers, 883 S.W.2d 650, 657 (Tex. 1994).