*2
fоr:
governmental
unit is hable
a
REYNOLDS, C.J., and
Before
DODSON
(1)
damage, personal injury ...
property
QUINN,
JJ.
wrongful
proximately
caused
act or
DODSON, Justice.
employee
of an
negligence
or the
omission
employment if:
acting
scope
within
(thе City),
appeals
Amarillo
(A)
inju-
property damage, personal
judgment
in favor
Erica
from a
rendered
operation or use
ry
trial.
trial
... arises from the
Martin after a bench
Shae
or motor-driv-
motor-driven vehicle
damages
found the
liable for
sus-
of a
court
equipment;
by Martin as the result
a collision
en
tained
(B)
findings
would be
When
of fact are filed and
according
liable to the claimant
unchallenged, they
Texas
are
are entitled the same
law....
verdict,
weight
jury
binding
as a
and are
on
appellate
contrary
court unless the
However,
upon by
relied
*3
law,
established as a matter of
or there is no
appellant,
excludes from the
in
support
finding.
evidence to
the
McGalliard
for,
governmental
effect
reinstates
Kuhlmann,
(Tex.1986).
In the pled Martin lia the bility сollision involved the motor upon of the based vehicles of the TTCA. The trial court City’s agent City, found that the Martin and the agent was that the was acting not disregard reckless acting for the safe scope employment, within the of his оthers, ty of ultimately City’s based the and that agent the defendant’s did not look liability 6701d, on Article which to the left as he entered the intersection. requires drivers of authorized vehicles to ex Because, undisputed it parties that both ercise safety per the of all vehicles, using were motor and that sons. Tex.Rev.Civ.Stat.Ann. art. City’s agent acting in performance was of his 75(b) (Vernon 1977). § responding duties in emergency, we only will review the record to determine When the trial court found the was any whether evidence to acting support exists 101.021, requirement others while third responding emergency, to an under section that 101.055(2) it agent rendered section inapplicable, personally would be liable to the placed Martin’s claim within section claimant. general liability provision of the In considering only evidence favorable to TTCA. Black v. County Nueces Rural Fire judgment, we note that at least twice in Prevention Dist. No. 695 S.W.2d record, City’s agent testified that he (Tex.1985). Consequently, liability had to did not look in the direction from which 1) predicated have been upon use of a motor traveling Martin was before he entered the 2) vehicle, driven during the course and say intersection. As we cannot that the rec- 3) scope employment, under circum- evidence, ord is supporting devoid of we con- agent stances where the would be undisputed clude the findings support per- § liable to the clаimant. 101.021. It is with liability negligence. sonal Consequently, mind, this standard in that we shift our focus appellant’s points we overrule of error that to the trial findings court’s of fact and conclu- there is no to evidence Conclusions sions of law. of Law four and five. addressing City’s points of er Accordingly, judgment ror, is affirmed. we are mindful that conclusions of law fact, findings are drawn from Mercer v.
Bludworth, (Tex.App.— ON MOTION FOR REHEARING n.r.e.), Houston [1st Dist.] writ ref'd contends, and thus we will its motion for re- findings review those of fact upоn challenged hearing, by applying that this court conclusions law erred are based. wrong emergency exception in section proper provides the actions
101.055(2)1 Act Section Texas Tort Claims non-emergency vеhi- by drivers of City’s actions be taken (TTCA), by reviewing the approached vehicles are cles when those emergency vehicle operation of an in the vehicle, and states an authorized ordinary negligence stan- inсorrect under an part: in relevant convinced we remain of care. Because dard correct, both original disposition is our (b) operate shall not to relieve This section as well as previous points error under the emergency ve- of an authorized the driver ones, we will address the new duty re- to drive with due hicle from motion. and overrule the contentions using persons gard for highway. error, City con- By point of its first exception appliсable *4 ignored the tends we exercising regard that due City asserts The immunity found in section of the waiver ordinary negligence, avoiding does not mean 101.055(2) erroneously ap- and acting in reckless actually not means but pertinent exсeption. The plied wrong erroneously therefore disregard, and that we 101.055, at the as it existed portion of section ordinary negligence standard of an applied time, states: relevant review. This arising: [*] chapter does [*] # [*] apply [*] to a claim [*] article exerсisable In 6701d, privileges of this section position, the of a driver of 24, which provides the City cites emer- states, vehicle, gency and also (2) while of an from the action emergency call or react- responding to an reliеve provisions shall not foregoing if the action emergency situation ing to an emergency ve- authorized driver of an and ordi- compliance with the laws is in duty to drive with due re- hicle from action, emergency or appliсable to nances safety persons, nor shall gard for the ordinance, a law or in the absence of such from the provision protect the driver such indif- is taken with conscious disregard if the action consequences of his reckless disregard or reckless ference others. of others; ... regard due urges because both It that analyzed have we should 24, asserts in section disregard are used reckless por- upon the decision based the trial court’s thing. It also asserts they the same mean employee’s addressing an the statute tion of been defined regard has not due because compliance with is in “... if the action law, action and because reck- or case either statute applicable and ordinances defined, the laws reckless dis- disregard has been less action_” unequivo- It asserts controls over specific term which regard is a 24, 33, 6701d, Therefore, sections cally that аrticle term, regard. general due our 75,2 which control applicable laws are the stan- defines reckless because therefore, part of second analysis, 24, also be the it should in section dard statute, a law “... in the absence of such in regard measure due by which we standard ordinance, ... is taken with if the action or Consequently, the submits section apply. disregard ...” does not reckless finding of no reckless should decide we driver part disregard on liаbility the trial court based Because part any liability on precluded 75(b) of article upon section to the due reference City, further without it, will review upon we City also relies disagree. regard language. We requirements of section judgment under the of construc general rules action Under determine whether in order to ordinary tion, use the required to we are law. with that compliance in taken was 101.021, 33 or to sections herein 2. All references to sections references herein 1. All Id, §§ 101.055, provisions art. 670 are to those to Tex.Rev.Civ.Stat.Ann. are 33, 101.021, 1977). (Vernon §§ & Ann. Rem.Code of Tex.Civ.Prac. and 75 (Vernon 101.055(2) Supp. &1986 1987), Claims Act. Texas Tort known as the meaning Antonio, of a term when that term is unde San 766 S.W.2d fined, Monsаnto Co. v. 1989, writ). Cornerstones Mun. Antonio no — San Dist., (Tex.1993), Util. 865 S.W.2d agreement City, with the we see no say ordinarily, and we cannot that due re distinguish reason to the members of the gard disregard. means reckless Further class of vehicle drivers and hold more, just every as word a statute must be differing them to depend- standards of care presumed to have purpose, been used for a ing upon they officers, police whether are every word presumed excluded must also be drivers, ambulance fighters. or fire Howev- purpose. have been excluded for a Laid er, justification we also can find no ignor- (Dallas), Systems law Waste Inc. v. ing law, import existing case which Wilmer, (Tex.1995). regard addresses negligence. due terms regard, we note that unlike section 24 conclude, Consequently, we must as used above, 75(b), discussed upon 75(b), equate does not the trial judgment, court based its does not disregard. reckless contain the term disregard. We supply therefore will not a statute with an City lastly attempts
additional give term order to to shield meaning it a *5 it would ordinarily liability by itself from pointing have. out the driv ability er’s prove qualified to assert and im We also remain convinced that the munity. Supreme Court has a held that proposed statutory suр construction is not “violation of art. 6701d preclude does not ported by existing analy case law. A careful application of immunity the official doctrine sis of recent implicitly cases examines due negligent to оperators,” vehicle regard ordinary under an negligence stan City Chambers, Lancaster v. 883 S.W.2d dard of care. In City Lancaster v. Cham at City 661 n. is correct in its bers, (Tex.1993), 883 S.W.2d 653 statement that it could also prove assert and Supreme Court duty stated the to drive with employee’s immunity its as a defense lia regard encompassed due the officer involved bility. Ochoa, County Harris v. 881 S.W.2d high speed chase, in a proxi and discussed a [1st Dist.] writ — Houston analysis mate cause respect with рo denied). liability. tential for his agreed The Court with the Appeals Dallas Court of that: However, City did not establish motorcycle’s [T]he may wreck have been the affirmative immunity, defense of official in part by policeman’s cаused failure to Chambers, see Lancaster v. regard drive with due for Chambers’ safe- S.W.2d at protection and without the ty.... Here, the summary [defendants’] immunity, official the driver could be held judgment proof conclusively prove does not nеgligence liable for under section illegal that the conduct which caused the 75(b)’s regard standard. We note the accident —was unforeseeable result of plead governmental immunity, did but i.e., negligence, their their to drive failure aware, as municipal is well its immu regard with due per- of all nity separate is and distinct from the official added). using sons (Emphasis the road. employees. available to its Court, Supreme Travis v. Concluding the applica- driver violated the Mesquite, (Tex.1992), also ble law as addressed in section respect stated police, with as drivers of failing regard to exercise due required as vehicles, deciding to initiate 75(b), again the claim would fall or pursuit may negligent, continue be and a squarely within the framework duty driver is not relieved of “the to drive general provision of the TTCA with due per- provides requirements ...” agreed sons. It for a waiver with the lower court policy immunity, analysis that the proceed statute does not shield and our would liability. officers from See also Guzman v. original opinion. accordance with our rehearing Accordingly, the motion for
overruled. Kingsley Agbor
Comfort AGBOR
Individually as Friend Next of Agbor, Appellants,
of Dikeh Eze
ST. LUKE’S EPISCOPAL
HOSPITAL, Appellee.
No. 14-94-00410-CV. Texas, Appeals
Court of (14th Dist.).
Houston
Nov. 1995.
Rehearing Overruled Jan. *6 Pfeifer, Houston,
Phillip appellant. A. Kirkland, McClure, Jeffrey B. Solace H. Houston, Connelly, appellee. Michael O. EDELMAN, LEE, Before AMIDEI and JJ.
OPINION LEE, Justice. individually Kingsley Agbor,
Comfort and son, their Dikeh and as next friend of minor