*1 void, entry may is not second-degree felony applied pro to the instant nunc tunc attacked.”). contrast, Here, In on appeal, appellant offense. it is collaterally not be judgment attacks the 1999 as void. now of con- undisputed judgment that the 1999 reformed on direct viction could have been broadly appel- Even we construe his registration to reflect the correct appeal arguments appellant late and assume has Thus, extent requirements. to the instant preserved his assertion that registration requirement part not was judgment conviction must be reversed agreement, the reformable plea the 1999 ground judgment on the that the 1999 cannot nature of the defect render void, such conviction is we conclude that Rhodes, 240 prior judgment void. See argument Appellant’s is merit. without challenge appeal at 889. constitutes a collateral S.W.3d judgment attack on the 1999 of conviction. appellant’s sole issue. We overrule State, 37, See Adams v. 56-57 2005, d); (Tex.App.-Austin pet. ref see also Conclusion State, Rhodes v. judgment affirm the of the trial We
(Tex.Crim.App.2007). court. appel The record reflects that
lant’s 1999 conviction was the result of a bargain agreement.
plea The Court Appeals
Criminal Rhodes held
defendant, plea agree who enters into a
ment that illegal includes terms which
ly lenient, estopped from later collateral
ly attacking judgment ground on the
that it illegally lenient. 240 GREEN, Christopher Appellant, Here, the record not does reveal registration requirement whether re judgment ALFORD, Individually
cited in the 1999 part and as Dwainia plea agreement. Alford, To the extent that it was Aaron Next Friend of part of agreement, Alford, Appellees. conclude that we Ronald appellant collaterally from at estopped No. 14-05-00407-CV. tacking the judgment ground on the that it contained an incorrect registration Texas, Appeals Court requirement. See id. (14th Dist.). Houston “illegal” cases in term which 15, 2008. July part at issue the plea agree Rehearing Nov. Overruled ment, the Rhodes court employed a differ analysis. ent Id. at 887-89. The court
recognized that judgment when a defect is appeal,
reformable on direct as in this
case, may is not void 888; collaterally
be attacked. See id. at State,
see also Barker v. 169 Tex.Crim. (1960) (“A judg irregulari
ment or sentence containing an
ty may appeal be reformed on *4 evi- legally factually insufficient recklessly that his
dence he acted performed faith. actions were not alternative, he raises a matter of In the damages impression, arguing first $100,000 he statutorily limited to because policy purchased by is insured Pasadena, the fact that despite $100,000 coverage subject to a self-in- Helfand, Jewell, S. Kevin D. William (a) conclude that sured retention. We Townsend, Giles, Roger Ray D. Norman acting Green failed to establish Houston, appellant. for (b) accident, good faith the time of the Sorrels, Suazo, Raul Randall Herman legally factually sufficient evidence Perdue, Ramage, Clyde Nicole Bruce E. supports finding the trial court’s III, Cain, James Jackson Graham Kevin (c) recklessly, damage Green acted (Intervenor), Houston, Dale Jefferson cap set forth in section 108.002of the Civil *5 appellees. ap- Practice and Remedies Code does not ply to these facts. We therefore affirm En Banc Court consists Chief Justice judgment. the trial court’s HEDGES, YATES, ANDERSON, Justices FOWLER, FROST, SEYMORE Background I. Factual and Procedural GUZMAN, BOYCE, BROWN and and A. Uncontested Facts Senior Justice HUDSON.* approximately p.m. August
At 5:15 on MAJORITY OPINION ON EN 30, 2002, Green, Christopher a volunteer
BANC REHEARING firefighter for the Pasadena Volunteer notice an Department, Fire received GUZMAN, M. Justice. EVA automatic fire alarm had been activated. grant Ronald and Alford’s We Dwainia in He at the fire station fewer than arrived banc, motions for rehearing en withdraw for additional fire- minutes and waited five opinion judgment our and of March fighters responding before to the arrive following majority and issue the firefighters and other alarm. Green opinion on en rehearing banc and accom- eight- departed Engine then panying judgment place. in its truck, which, including fire the fire- person 39,500 fighters, weighed pounds. This case arises from a traffic accident In the fire which a truck collided another intersection of Jana Lane and westbound vehicle, causing Parkway, Ronald Alford to sustain a Fairmont the fire truck collided causing broken neck and neu- truck three permanent pickup occupied awith son, rological damage family. The nine-year-old to his members of the Alford colli- propelled pickup diagonally Aaron. trial court found that Christo- sion truck Green, pher firefighter driving across the intersection it crashed where truck, recklessly utility pole supporting acted not enti- into the the traffic was immunity lights. compara- tled to official or limitation of Alford suffered Dwainia liability. tively injuries, Green asks us to minor but Ronald sustained reverse him, Nine-year- there judgment arguing that broken cervical vertebrae. * sitting by assignment. Harvey Senior Justice J. Hudson vision, severely injured; pickup left of the obscured her but
old Aaron was the most days he remained in a coma twelve or horn before the she never heard siren neurological suffered trauma from severe impact. injuries.
his head Appellant Christopher Alford, 18, 2002, On October Dwainia Lawhorn, Truck Richard Fire acting capacity in her and as individual the fire Green testified that he activated friend, Aaron’s next sued Green for dam- lights before emergency truck’s and siren stemming from the accident. Ronald ages station, he left the fire and as he turned Following nonjury Alford intervened. Jana, began periodically north on he trial, the trial court entered firefighter sound his horn. Volunteer for an amount in against Green excess Lawhorn, in the riding Richard who was specific million. The trial court made $1.5 Green, seat beside similar- passenger front findings of fact and conclusions of law ly lights testified that the fire truck’s holding engaged that Green reckless that he drove siren were on. stated conduct and was not entitled to official hour,1 and as at no more than 80 miles immunity acting because he he neared the intersection west- accident. The good faith at the time of the Parkway, lanes of Fairmont bound ruling court’s based on the con- light facing traffic him was red. Green tested evidence summarized below. and looked to his testified that slowed lanes right, that traffic the first two saw B. Fact Witnesses in the stationary, and saw no traffic Appellees Ronald and Dwainia Al- he, lane. testified third Lawhorn ford, Pickup Truck *6 Lawhorn, the third lane of could not see immediately Ronald Alford testified that traffic, heavy to the Fairmont due accident, driving before the he was to the next intersec- up nearly backed was northernmost lane of Fairmont westbound put to on tion. leaned forward Lawhorn son. He stated Parkway with his wife and entered the inter- jacket2 his while Green off, the traffic that his radio was and speed section at a that Lawhorn estimated red, him at Jana but it turned facing per 25 miles to be no more than 20 to the inter- green approach as he slowed to Green, “After I According hour. to saw Alford, he to According to looked section. stopped, there lanes of traffic that was two left, right his and saw that cross-traffic proceed and started to didn’t see third and the intersection stopping, entered those three lanes through that —that lane hour. He approximately per at 30 miles further stat- and had the accident.” Green “just caught that he flash of [the stated than 10 speed his no more ed that ... corner of [his] fee out of truck] per miles hour. his eye” before the fire truck struck vehi- that he drove Although Green testified of the side.' cle in the middle driver’s any hitting slowly enough stop to before testified that traffic to the Dwainia Alford really I don’t know. speed A: I believe so. 1. The limit on Jana Lane was 30 miles Q: Now, putting per jacket, he was hour. that on, your vision to the that didn't block Regarding putting on Lawhorn’s actions east, did it? jacket, Green testified as follows: window, guess I up If he A: Q: putting it true that he was And isn’t he was or maybe I don’t know how so. very when the jacket at the moment his doing he was it. how occurring? collision was per entering vehicle the intersec- tion at to 30 hour. Glenn he observed miles tion, Daley he also stated that did not know he did not also testified that see braking to calculate and lights how distances fire truck or its slow down see brake to expert, would defer the Alfords’ Richard activate, he estimated the fire truck’s Schlueter, on that subject.3 Green further Douglas speed per at miles hour. agreed truthfully other 'drivers testi- speed Lowther the fire estimated truck’s enough fied that he could not react quickly hour, per at 25 to 30 miles and James at the speed avoid the accident he was Vaught at no than placed speed its more and the traveling, speed fire truck’s made per According 30 miles hour. to Victor “impossible it to stop.” Lucero, through” truck right “zoomed hour. intersection 40 to miles pickup did see Alfords’ fire Jamie Faulkner did not estimate the impact. before the He did not recall if truck’s speed, ap- there trucks in the but testified that it were first lanes two “very did or impaired proached could have his fast” and not slow view stop far lane but testified that he not rule entering could before the intersection. out that He possibility. also did not know Expert C. Witnesses putting Lawhorn blocked his view while jacket. however, Bayshore on a agreed, Mayo, Eye 1. Dr. Mark As- if a firefighter “could not see the third lane sociates traffic,” approach the correct be Mayo Dr. Since Mark has treated “to stop proceeding through before keratoconus, progressive eye Green for Lawhorn, According
intersection.” disease that weakens cornea Green should have known there was “a irregular it develop causes curvatures. certainty” substantial that if a smaller ve- blurring Such curvatures can cause hicle Engine collided with there was “a per- decreased and affect a distance vision high degree injury.” risk of serious ability son’s When Green first drive. Bystanders patient, became a his be- keratoconus was tween moderate severity, mild and bystanders Nine other drivers testi- “to glasses vision was correctable with *7 fied at trial. Most of these fact witnesses 1997, however, fairly high a level.” In emergency testified that fire truck’s Green that had vision reported he failed a on, lights and were none testified that the license, necessary for test a driver’s and lights emergency were off. witness One was prescription changed. Green’s lens siren, could if not recall she heard a the remaining eight evenly were divided as nine November months before to whether siren Four was activated. accident, Mayo complained to that witnesses also testified Green sounded decreased distance Tests vision. showed horn, his but hearing several others denied worsened, that vision Green’s had repairs a horn. Invoices to fire that medical records indicate Green “did air truck indicate that its horns re- were job not want contact lenses because of his placed after accident. firefighter.” According “any as a to Mayo, activity looking was into [Green] Several these also estimat- witnesses speed just ed before the distance affected cor- Green’s the accident. would be without acuity Josef Although Wells stated that he did not see the rection.” Green’s visual fire progressively worse, Mayo truck brake as it entered the intersee- becoming was 3. testimony Schlueter’s is summarized at 12-13. infra stated, guess “I accident, essary. As Gardner that at the time of
stated your with foot on brake would acuity glasses creeping Green’s “visual to enough stop.” be slow to an automobile.” Within sufficient drive accident, however, four months of the Although of the fire Gardner is chief poor he had difficul- so Green’s vision was volunteered, department where ty watching television. had Gardner did know that Green any did not recol- keratoconus and “have Gardner, Jerry Chief glasses.” wearing lection [Green] Department Fire Pasadena Moreover, agreed Gardner rea- “[n]o firefighters Chief Gardner testified fire believe operator sonable could [sic] comply with state law and local ordi- must driving responding a fire to a truck nances, he not authorize a viola- and would glasses call his or corrective lenses without agreed that tion of state Gardner it law. his would required by as driver’s license law, city be a violation of state would be reasonable other drivers [are] ordinance, department policy to drive to available drive.” a though a fire truck red without Schlueter, P.E., Accident Richard Moreover, Gardner sirens activated. Expert Reconstruction doing so be reckless. agreed that Richard expert Accident reconstruction recordings of radio Although there driving that Green Schlueter testified 81, Gardner Engine transmissions from per 23 miles hour at the approximately at be that no siren can heard testified impact, time and the Alfords trav- were recordings. these approximately per 25-30 miles eling understanding it Gardner stated was He that Green hour.4 further testified stop come a complete that Green did not per 10 miles hour could not slowed to have entering the intersection Jana before approached Fairmont westbound Parkway. Lane westbound Fairmont Parkway, because the fire truck could that, according to agreed He further per to miles have accelerated from 10 scene, at the “[Green] Green’s statement hour in the short distance between Fairmont. had down for westbound slowed the loca- beginning of the intersection and of the three lanes appeared It two Schluet- According tion of the impact. So, going yielding. [Green] were er, fire detected hazard truck driver and continue northbound on forward move hour, the fire driving per at 10 miles while Gardner, According to onto Jana....” it feet before truck would travel 20 one lane should firefighter who cannot see stop; be to a at 25 miles brought could into the intersec- stop proceeding before hour, increased to 75 braking distance *8 tion; however, also testified that Gardner At intersection where the acci- feet. the lane, one firefighter if a cannot see occurred, of the three lanes is dent each regard[,]” wide, due the inter- “[p]roceed with feet and the total of should width also only section is 33 feet.5 Schlueter stop if nec- slowly enough means Schlueter, sis, analysis, a simulation of the According his a momentum the calculations 4. collision, police trip analysis, pole on taken at a interac- were based measurements roll a truck, scene, photographs calculation, of the Alfords’ the comparison the and visual of tion and the accident inspection of the fire truck damaged vehicles. scene, pickup data from a similar to crash test truck, parties’ stipulation and the the Alfords’ agreed if the fire truck was 5. Gardner firefighters had a com- fire truck and that the hour, traveling it could at 23 miles then 39,500 pounds. weight His calcula- bined stop within feet. trajectory analy- post-impact tions a included life-threaten- responding to a regarding firefighter lines of a performed calculations if Green had all lanes sight and concluded to secure ing situation stopped anywhere within the area that traffic had traffic and make sure Jana, he could inside turn lanes on two right way proceeding before yielded the the third lane of have seen westbound Balancing posed by the risks into a lane. Fairmont. procedure versus failing to follow firefighter rapidly, the respond need to Stage, Neal Director Robert Division, lanes, Training, because failure EMS Acad- must secure the National emy Drivers team’s of Professional firefighting in the do so can result all. emergency at the failure to arrive that, Stage opin- testified in his Robert addition, firefighters public and the ion, Green caused the accident because he Stage, the According to injured.8 could be of traffic failed to secure the third lane been most defi- risk of harm “should have the fire into that lane. driving before truck and his actions nitely clear to [Green]” According Stage, Green should have reckless, regardless of whether were posed high degree that his actions known injury.6 Stage of risk of serious further sirens were activated.
explained high degree that the “extreme injury during risk” serious is increased Rulings D. Trial Court driving against rush hour and traffic trial, parties filed Shortly before signals. weight of the fire truck also summary judgment on risk, cross-motions for increases and obscured views immunity and the “dramatically high degree application of official increase[] injury.” damages risk of The trial court statutory cap. summary judgment in the Alfords’ granted Stage also testified that automatic fire issues, respond- and Green favor those convey alarms do not nature of by filing ed a motion for reconsideration on emergency, they rarely signal but a life- began. par- All day nonjury Here, threatening situation.7 Green was on these issues. presented ties evidence responding to an automatic alarm less than evidence, At the close of Green moved station; half a mile from fire he had to a matter of on the basis judgment as law pass through lights traffic two to reach immunity. The trial court de- official destination, and it taken would have but stated that it nied the motion “[pjrobably no more than 15 seconds” to Green’s on the issue of proceed due consider regard public “with [to] safety[.]” Stage immunity.9 further testified that official even Training leading materials in the Fire De- constitute the second cause of death Pasadena among firefighters. partment’s library stopping addressed actual example, and reaction For distance time. judgment and its find- 9.The trial court's final training videotape library from that cautions ings conclusions of law indicate of fact and firefighters warning all devices and "[u]se that, although separate order rescinds complete stop come to at blind intersections granting partial summary interlocutory order apparatus where has a or intersections rulings judgment, were based on the the final *9 sign stop light.” or Similarly, presented in the at trial. post-judgment portions their motions that of agreed 7. Chief Gardner that Green would immunity, Green’s defense of official address have known that most automatic alarms are presented at trial. parties discuss evidence false alarms. parties follow the lead of the We therefore Stage, According while court and treat Green’s defense 8. traffic accidents and the trial immunity responding returning emergency decided based from an of official as matter
14 fact, immunity court re- Official under common
As the trier of
the trial
conflicting
necessity
public
of the acci-
on the
for
solved
accounts
law based
evidence,
public
act in the
interest with
weighing
After
all the
servants “to
dent.
(1)
alia,
found,
confidence and without the hesitation
trial court
inter
having
judgment
could arise from
their
as re-
wearing
was not
corrective lenses
(2)
continually questioned by
litiga
extended
accident;
at
time of
quired
Builders,
Champion
v.
Ballantyne
tion.”
the traffic
against
entered the intersection
(Tex.2004).
Inc.,
417, 424
It
(3)
144
S.W.3d
light;
due to traffic in the southern-
barring
an affirmative defense
state law
most and middle lanes of westbound Fair-
employee’s
governmental
claims
mont
of the north-
Parkway, Green’s view
(1)
(2)
duties,
(4)
performance
discretionary
of
impaired;
at the
ernmost lane was
time
authori
scope
employee’s
of the
within
impact,
traveling
the fire truck
at
(3)
in
(5)
employee
acts
hour;
ty,
provided that
23
the fire truck en-
miles
422;
at
Houston
good faith.
Id.
Univ.
speed too fast to
tered the intersection at a
Clark,
(Tex.2000);
578,
v.
38
stop
might
for
traffic that
be
westbound
Chambers,
(6)
City Lancaster v.
intersection;
entering the
at the time
(Tex.1994).
650,
653
The doctrine rests
collision,
using the
of the
Green was not
liability
threat of
theory
that the
will
warning
or other
fire truck’s siren
audible
carry
(7)
public
unduly
make
officials
timid
faith,
Green did not act in
signal;
duties,
(8)
ing out their official
and effective
conduct
reckless.
and Green’s
promoted
be
officials
government will
to the
damages
The trial court awarded
freed of the costs of vexatious
exceeding
mil-
Alfords
an amount
$1.5
Er
v.
litigation.
often frivolous
Westfall
timely
lion. This
ensued.
appeal
win,
292, 295,
580, 583,
108
484 U.S.
S.Ct.
(1988), superseded by stat
This test is intended compet- to balance (a) as nature harm severity and of ing hand, On concerns. one court “the cause, including official’s actions could in rights bystanders must consider the of juries bystanders possibility and the public other innocent parties [a official] prevent an accident official would gross disregard public safety.” acts reaching from emergency; scene Chambers, 883 S.W.2d 656. at On the (b) the any likelihood that harm would hand, designed other test reduce (c) occur; any whether risk of harm the deterrent effect that of lia- the threat reasonably prudent be clear to bility may pose public to a willing- official’s official. Id. Because the information act ness to “with decisiveness and the change may rapidly, known to the official public good[,]” deliberation, leaving little time high- for as the injustice imposing person- well responses speed emergency “require liability al on a public official whose duties continuing assessment of need risk.” him require to exercise Id. discretion. Clark, 582-83; 38 S.W.3d at see also Wa dewitz, Chambers, 467; 951 S.W.2d at The tension these con between If the public S.W.2d at 656-57. official especially clear in cerns instances multiple action considers courses of “emergency driving. rapid response” that a selects one reasonable official could response required per of law enforcement justified by believe to be the information sonnel, paramedics, firefighters is es time, duty possessed at performance sential effective faith is matter satisfied as a of law. See duties, their can but same actions also Ballantyne, 144 motorists, pose bystanders, serious risks to Sufficiency responding and the officials themselves. the Evidence Consequently, arising claims from offi- GoodFaith *11 authority imply he us such of his contention that is that would allow to support good finding.11 faith as a a finding to a
entitled law, argues first that matter of Further, argument is con repeatedly “[m]aintain[ed] courts have precedent. refuting to If evidence trary immunity” to defeat high required burden per good pertains faith to official’s a matter held officials immune as and have discretionary duty within formance a cases this. He then of law in similar to scope authority, of his neither conclusively he established his asserts that required reviewing court nor the court is Finally, argues he that good faith. to because disregard simply that evidence genuine raise a and mate- Alfords failed to actually the official’s additional misconduct concerning good faith. rial fact issue Chambers, alleged. caused harm See arguments persua- these We do find (stating govern 655-56 that S.W.2d at below, argu- As discussed Green’s sive. to ment officials are entitled official immu evidence, ignore ments unfavorable and nity arising perform from suit from the readily he are on relies the cases which discretionary good their ance of duties argu- Green’s distinguishable. Finally, long they acting faith as within conceptions ments are based on erroneous Instead, scope authority). courts of their considered and the of the evidence to be good faith a stan simply measure it is standard reviewed. objective legal Id. dard of reasonableness. seeking An a at 656. officer to overturn a. to be Evidence Considered finding he to trial court’s that failed act arguments begin Green’s good address all in the faith must evidence faulty assumption analyzing good to the faith determi record material faith, consider good we should evidence Wilson, 168 See Keller v. nation. only conduct has been found to cause (Tex.2005); Harris he example, the accident. For contends v. County Smyly, 130 S.W.3d ex disregard Gardner’s adverse we should 2004, no (Tex.App.-Houston [14th Dist.] testimony firefighter no could pert pet.).12 it to the fire believe was reasonable drive b. Standard Review corrective lenses if required truck without brief, initially In his recites firefighters to other were available drive correctly, argu- but “purported failure to wear standard review because rely of other application in the ments played part no accident.” glasses example, For to the facts. finding no of fact standards Green cites states, support this and identifies no assertion go further argument ignores requirement that the factfinder still also the fact that 11. Green's defense; immunity contrary an affirmative a affirma- official and state reasons such thus, Here, prove at trial to Green bore the burden finding. the trial court neither tive Ballantyne, 144 all its elements. required point requested out reasons nor 8-9; 424; Kassen, 887 S.W.2d S.W.3d at faith, negated finding of and did Chambers, a defen- at 653. And if not do so. fails relying on affirmative defense dant trial, carry the factfinder his burden at then Perry, 41 F.3d 12. See also Rowland v. requested only make the find- need refuse to (4th Cir.1994) (“Artificial divisions the se- Co., ing. Oil See Sterner Marathon quence do not aid court's evalua- events (Tex.1989). Because the reasonableness.”), objective cited with tion of contrary make factfinder Telthorster, at 463. approval in for a finding, there is basis affirmative
17 good faith as a mat- 825-26. To establish genuine To create a issue of material has faith, ... ter of after the factfinder resolved good fact on the non-movant law of the claim- conflicting more than that a reason- evidence favor must do show the denial of ants, appealing an official ably prudent officer could have decided that, based immunity prove must taking question. the action official reasonable “no reason- on the The non-movant must show inferences fa- facts claimants, a officer person position voring in the officer’s could the reasonable able using thought justified the a assessment performing have that the facts need/risk the could have believed officer’s acts.” that information Smy- justified. to be See official’sconduct Harris, 334; at Scott v. ly, 130 S.W.3d cf. sum, authority In and in of Texas 372, 1769, 1774-75, 550 127 S.Ct. 167 U.S. above, discussed the Alfords’ evidence (2007) that, re- (stating L.Ed.2d 686 falls short of that to raise well for sum- viewing ruling on official’smotion question good on a fact faith. mary judgment claiming qualified immuni- Although incorporate these statements re- ty, usually adopts plaintiffs the court summary-judg- quirements applicable facts). version respondent, they apply only ment if the summary-judgment pro- has first movant addition, appellant challeng an If establishing good duced evidence faith. ing sufficiency of the evidence offered so, has failed to movant do burden challenge specific nonjury in a trial must produce controverting to raise evidence Zagorski, 116 findings Zagorski of fact. v. genuine issue of material fact does 309, (Tex.App.-Houston [14th S.W.3d 319 respondent.13 shift to the denied). 2003, pet. defer to a We Dist.] Here, begin findings they if the Alfords do not trial court’s factual by Perry the burden to Homes disprove supported faith. evidence. (Tex.2008). Cull, noted, previously immunity As official is v. 258 598 S.W.3d defense; thus, court, reviewing an Green bore And as a we are bound affirmative of fact unless prove any unchallenged findings the burden at all of its Ballantyne, contrary elements. See 144 at is established as a matter of 424; Kassen, 8-9; finding supported by any is not 887 S.W.2d at Cham law or the Kuhlmann, bers, v. S.W.2d at We review evidence. McGalliard (Tex.1986). Thus, trial court’s motion for we will denial Green’s judgment as a matter of based on the the trial court’s denial Green’s law reverse evidence, conclusively if the legal sufficiency crediting only of the motion evidence establishing his entitlement to favoring proves evidence the verdict a reason facts could, immunity as matter of disregarding able factfinder official law. Francis, contrary unless a fact- Dow Co. v. 46 S.W.3d reasonable Chem. (a (Tex.2001) party attacking legal not. Ready finder could Cent. Mix Con Islas, finding an on an sufficiency crete adverse Co. Keller, (Tex.2007); proof at he bore the burden of issue which summary judgment clarify procedural posture ing based on assertion of 13. To case, appeal we political note that Green did not immunity by employee of the state or summary-judgment rul- state). Instead, trial court's adverse ap- subdivision of the ing. peals the trial court's denial of his motion Ann. Tex. Civ. Prac. & Rem.Code Cf. (Vernon 51.014(a)(5) Supp.2007) (permit- § judgment as a matter of law. deny- ting appeal interlocutory order from Here, following the trial court must demonstrate that the evidence estab- made lishes, law, in findings as a matter of all vital facts of fact relevant to Green’s infor- issue). If support concerning portion sufficient evi- mation the “need” presented including trial such that the seri- analysis, dence was the need/risk *13 regarding “reasonable minds could differ” for his emergency, ousness of the the need immunity the facts on the claim of injury or presence prevent immediate to based, then the trial court did not err life, loss of and the alternative courses a denying judgment a motion for as matter comparable action to achieve a available Kassen, at 9. of law. See result: (cid:127) responding to an automatic Green was
(i) No Proof of Good Faith Conclusive alarm, overwhelming ma- fire and the Green, some of the According of automatic fire alarms are jority findings supported trial court’s factual are require false alarms or do not by legally factually and insufficient evi presence firefighter;14 of a immediate dence, thus, support finding and do not a (cid:127) Slowing stopping at the intersec- chal particular, of recklessness. In he response reduced his tion would have lenges findings that he failed to wear seconds;15 by time and siren, glasses, and “as activate slow (cid:127) firefighters available to Other were necessary operation” for safe before enter drive. He also contests the ing intersection. unchallenged findings supported These are finding that he had actual awareness by the record. of risk of posed high degree his conduct a following trial court also made the contend, injury. serious He does not how to a reasonable findings of fact relevant ever, disregarding findings, these assessment of risk firefighter’s they unsup are to do we at the the information available to Green ported, finding undermines the trial court’s collision: time of the good that Green failed to act in faith. And (cid:127) keratoconus, Green has suffered from the chal completely disregard if we even disease, progressive eye a since lenged findings, the trial court’s 1995; least concerning lack of faith is Green’s (cid:127) to his reported Green supported by unchallenged findings about a eye specialist that he failed vision evidence. presented, life-threatening. we particular undisputed, and On the facts 14. These facts are conflicting testimony regardless the trial court heard of whether reach the same result concerning weight a fire reasonable alarm probable false the alarm is treated as fighter assign perform to these facts life-threatening emergency. signal or the of a analysis. ing Chief Gardner testi a need/risk by facts found Our recitation of the expects know that the fied that he Green to any spe suggest is not intended to court majority alarms are false great of automatic court’s finding was to the trial cific essential alarms, expert opinion, this knowl his suggest that first- judgment, and we do not edge be a factor in a driver's decision should not treat an au responders should or should concerning stop whether when the driver’s emergen life-threatening tomatic alarm as a On the other view of cross-traffic is blocked. cy- hand, he Gardner also testified that treats life-threatening emergency, every alarm as undisputed that the intersections It is Stage procedure that the same testified only traffic Jana contained the Fairmont and regard securing applies a lane of traffic lights and the site between the fire station responding firefighter is less of whether the the alarm. known to be automatic alarm or an event Department Parkway test conducted impaired Green’s view of the Safety; traffic; Public lane of northernmost (cid:127) Approximately ten months before the (cid:127) collision, Prior Green did collision, eye reported to his lane of see northernmost west- specialist experienced that he de- Parkway; Fairmont bound creased blurring, distance vision and (cid:127) Driving into lane without deter- special refused a contact lens mining in that whether vehicles job prescription due to as a fire- yielded lane had to the fire truck fighter; degree posed high of risk serious (cid:127) 9, 2002, On December reported injury; *14 eye specialist to his there were (cid:127) traveling stop Green fast to too changes acuity; in his visual he had any in for traffic the northernmost vision, blurring difficulty of his Parkway; lane westbound Fairmont television; watching (cid:127) He drove the fire truck into the north- (cid:127) reported any problems Green never ernmost lane westbound Fairmont his to vision the Pasadena Volun- hour; Parkway per at 23 miles Department; teer Fire (cid:127) (cid:127) delayed by Green would have been A restriction on li- Green’s driver’s by stopping slowing 15-30 seconds requires cense him to wear corrective necessary that all lenses; ascertain traf- yielded; had fic (cid:127) accident, At the time of the Green was not wearing (cid:127) corrective lenses when high degree Green was aware of the driving truck;17 the fire posed by of risk of serious injury en- (cid:127) tering the intersection fighters Other fire a red were available to truck; light ascertaining first
drive the without that all yielded lanes of cross-traffic had (cid:127) When Green entered the intersection presence truck; the fire Jana, of Fairmont and evening it was Friday rush hour on the beginning (cid:127) He did not assess and reassess the Day weekend; Labor posed by risk his and the conduct (cid:127) knowledge Green had actual need for presence that traf- at scene heavy intersection; alarm;
fic would be at this (cid:127) speed The limit on Parkway Fairmont (cid:127) approached Green When intersec- hour; was 45 miles tion of Lane Jana and westbound (cid:127) intersection, When Green entered the Parkway, identify Fairmont did red;
the traffic light facing him was viability consider alterna- courses (cid:127) action tive to achieve The traffic facing westbound comparable result. green; Fairmont was (cid:127) 39,500 weighed fire truck pounds; findings supported by These the testi- (cid:127) Trucks the southernmost mid- mony I of opin- summarized Section this
dle lanes of westbound Fairmont ion. given 16. Green a prescription therefore was restriction is a criminal misdemeanor offense. glasses. 521.221(c) (Ver- § See Tex. Transp. Code Ann. Supp.2007). non Operating a motor vehicle without correc- tive lenses in violation of a driver's license in good that he did not act expert finding evi- The trial court also heard faith, to three analogizes of reason- case objective of the standard dence below, however, Jerry facts. As applicable to these other cases. discussed ableness Gardner, distinguish- City readily of Pasadena these authorities are Chief Department, categorically agreed that Fire able. available, no reason- if other drivers were Angelo Department San Fire it fire could operator truck believe able Hudson, of Appeals the Third Court to an respond be reasonable judgment recogniz rendered reversed and by driving a fire truck without wear- alarm immuni ing firefighter’s claim official by a required lenses restric- ing corrective (Tex.App. ty. driver’s license. firefighter’s tion 2005, Unlike the case pet.). -Austin And testimony was uncontroverted. This us, Hudson of firefighter before ultimately opined that although Gardner summary-judgment fered uncontroverted faith, he admitted acted firefighter reasonable by assuming he reached that conclusion the conduct issue could have believed disputed including the truth of facts— Id. justified under the circumstances. so, that, do assumption *15 however, Here, the “con at 704-06. even lenses at the wearing Green was corrective dispute. is a See duct at issue” matter by failing to of the accident—and time Chambers, (ques at 656-57 S.W.2d facts, such other uncontroverted consider good faith concerning fact tions material speed Fairmont higher limit on summary Green con preclude judgment). Keller,
relative to Jana. Cf.
glasses,
he wore his
used
tends that
(reviewing court “cannot
at 813
siren,
all
horn and
checked
fire truck’s
opinion,
bare
but
only
expert’s
consider
Fairmont, and
three lanes on westbound
evidence”).
contrary
must also consider
per
at no more than 10 miles
proceeded
appropriate
Considering, under
conflicting
there
evidence
hour. But
is
of Green’s
review, the evidence
standard
glasses,
his
did
that Green did not wear
concerning
the circumstances
conduct and
siren,
did
use the fire truck’s horn
as the evidence indicates
and need
risk
the northernmost
lane
west
not see
them,
objective
applying the
and
perceived
Fairmont,
that
lane
and entered
bound
reasonableness,
conclude
we
standard of
blindly traveling
23 miles
hour.
at
conclusively establish
faded to
that Green
trial court found the latter evidence
The
Telthorster, 92
good
his
faith.
credible,
Cf.
presented
and Green
more
(“[Ojfficial immunity
designed to
is
at
firefighter
a reasonable
evidence
being
to
from
forced
public officials
protect
justi
believed such conduct was
could have
reason-
their decisions that were
defend
fied.
made,
hindsight
upon
but
able
this evi-
To
the need to address
avoid
add-
negative light.” (emphasis
cast a
has
that, be-
dence,
appears
suggest
to
ed)).
is
contrary,
the evidence
To
the offi-
considers
cause the factfinder
that no
conclusion
support
to
sufficient
circumstances when
perception of
cial’s
could have
operator
fire truck
reasonable
faith, the official’s testimo-
analyzing good
the risks
justified
the need
believed
must be
perceptions
ny regarding those
to
chose
take.
true,
contrary evidence
accepted as
Legal Authorities
c. Green’s
only
suggestion is not
disregarded. This
ap-
on
contrary
standard
review
argument
of his
support
In
factfinder’s
disregards
but
it
support
peal,
legally insufficient
evidence
(Tex.App.-Hous-
reh’g);
in
in the
resolving
role
conflicts
evidence
denied)
credibility
on the
pet.
(supp.
based
witnesses.
ton [14th Dist.]
McGalliard,
required corrective lenses other added). Because the (emphasis Id. at 27 fighters were available.18 object to this appellant in Rivas did not faith,” legal “good definition of suffi- Green also relies on Rivas v. ciency of the evidence was measured Houston, in which we affirmed the trial jury in the against the standard recited judgment court’s rendition of notwith- Peca, Osterberg charge. standing the verdict. 17 S.W.3d 2000) (Tex.2000) (“[I]t is the court’s (Tex.App.-Houston (op. [14th Dist.] expert testimony re- supported by ex- of whether 18. Because the discussion pert testimony, quired. we do not reach the dissent’s law, ler, charge, Consequently, Ri not some other unidentified guide not our of this case. sufficiency that measures the of the evi- vas does review opposing fails to party dence when legally Because the evidence is sufficient object charge.”). to the operating to establish that Green was not By instructing jury only to consider fire faith at the time of good truck faith, determining good certain matters in accident, conclude the trial court we the fac- the trial court Rivas restricted denying not err in Green’s motion for did tors to be balanced assess- there- judgment as a matter law. We need/risk Significantly, jury ment.19 fore Green’s first issue. overrule required to consider the driver’s aware- B. Recklessness posed by
ness of the risks failure to use emergency lights. Consequently, siren or issue, Green con his second jury guided consider- away from factually legally tends the evidence is comprising all the “the ation of factors four factual support specific insufficient to or similar circumstances.” same trial court’s findings in connection with the reckless. conclusion that his conduct was Here, however, presented we are not alternative, argues In the he that the find rele jury charge that omits factors the conclusion that he ings support do to the This analysis. vant need/risk finding The trial court’s was reckless. trial, could nonjury and the trial court significant recklessness is because under deciding all facts in consider relevant Transportation section 546.005 of official, reasonably prudent un “whether a Code, emergency of an vehicle driver circumstances, der the same or similar duty operate is not from “the relieved could that his conduct was have believed regard for the appropriate the vehicle with pos justified based the information consequences “the safety persons” of all sessed the conduct occurred.” Bal safety of oth disregard of reckless for the (emphasis add lantyne, S.W.3d at 426 TRAnsp. § 546.005 ers.” Tex. Code Ann. Clark, ed); (holding at 579 cf (Vernon 1999). “imposes a provision This apply factors Wadewitz regard for others duty to drive with due police pursuit faith determination's *17 behavior, only but it by avoiding negligent cases). reviewing And in the trial court’s reckless conduct.” imposes liability for consider all of the judgment, we likewise Martin, Amarillo v. 971 S.W.2d City of evidence, indulge every reasonable infer (Tex.1998) 426, predeces (interpreting 431 verdict, support the and ence would provision).20 sor a rea disregard contrary evidence unless 1. Standard of Review City Kel sonable fact-finder could not. of patient para charge given, posed the or other the “need” was his actions to 19. Under as medics. id. by patient measured the need to take the to Cf. require hospital immediately and did not the Although that Chief the dissent states jury consider the driver’s awareness of the to proceeded testimony that Gardner’s of action. Wadew- other available courses Cf. creating regard "comes to a with due close itz, Similarly, at 467. "risk” con issue,” regard part the fact due forms no of possible the were restricted to siderations immunity liability. due for Proof of test (the category people public) one of harm to faith, regard not establish and does by two the posed the combination of acts reck- proof of its absence does not establish (failure slow stop driver to and failure to Thus, testimony concerning re- due lessness. sufficiently). jury not gard a fact on either does not create issue of the risks consider the driver’s awareness issue.
23 trial, nonjury findings incurring liability In a possibility the civil fact a dignity have the same force and as a mere failure of what amounts jury’s per- County judgment emergency verdict. Dallas Constable could deter Boxing taking Precinct 5 v. acting decisively No. Garden sonnel from and Club, Inc., (Tex. 613, 219 in order to life or 615-16 calculated risks save 2007, App.-Dallas apprehend no pet.). property When a com or to miscreants. filed, plete reporter’s disregard” test, re- record is we The “reckless which review the findings legal trial court’s fact for a more than momen- quires showing of and sufficiency factual under is suited to tary judgment lapse, same better apply jury legislative goal standards we verdicts. See emer- encouraging Jones, (Tex. 770, personnel Ortiz v. act gency swiftly and reso- 1996) curiam). so, (per doing In not we do while at same time lutely protecting substitute for that public’s safety practica- our to the extent factfinder, if we have even reached ble. different conclusion reviewing Kerr, (quoting Id. 84 N.Y.2d Saarinen evidence. Equip. Leasing, FDIC v.F&A 620 N.Y.S.2d N.E.2d (Tex.App.-Dallas (1994)). writ). 1993,no In his challenge connection with to the We for legal review evidence suffi- finding, disputes recklessness ciency the previously-described under following findings adverse of the trial standard forth in City set Keller. court: addition, a party challenging the factual Christopher 22. Defendant Green was sufficiency a finding on which that party wearing corrective lenses when
bore the burden of proof at trial must driving the fire truck at the time of demonstrate is finding adverse the collision. against the great weight preponder- and Christopher 26. Defendant Green did ance Chem., of the evidence. Dow speed fire truck slow S.W.3d at 242. In reviewing a factual necessary operation for safe be- sufficiency challenge, consider we fore he entered the intersection weigh all the evidence in neutral the collision occurred. may aside finding only set if the evidence weak finding is so or the so 39,- Driving weighing a fire truck against the great weight preponder- pounds into an intersection ance of it clearly traffic, heavy cross as the such wrong unjust. Id. traffic on Fairmont westbound *18 during hour, Parkway evening rush Sufficiency Sup- of the Evidence to against light governing a red the poH Findings Factual travel, fire truck’s of at a direction prevail To of against the speed driver of approximately 23 miles vehicle, hour, an emergency a claimant must to being without able first show that the or driver committed acts that all the of see of lanes cross omissions that the or yielded driver knew should traffic had to the fire truck have posed high degree degree of of poses high known risk of risk seri- Martin, collision, injury. injury; serious S.W.2d at 430. to prior 971 ous designed This test is to address concerns Christopher defendant Green had that actual that such action awareness
24 high degree glasses of risk of seri- he at time of the
posed
wearing
was
injury.
accident,
by
testimony
ous
this
was refuted
Lawhorn,
other
who
seated
evidence.
was
op-
52. At the time
the collision the
accident,
beside Green at the time of the
erator of the fire truck was not
testified that he has known
since
Green
fire
or
using the
truck’s siren
other
1998 or 1999
has never seen him
and
wear
warning signal.
audible
(other
safety glasses).
than
Ac-
glasses
addition,
argues
that
trial
Lawhorn,
not
cording to
Green was
wear-
expressly
challenged
court did not
tie the
glasses on
of-
ing
this occasion. Gardner
findings to
issue
or
of recklessness
similar testimony.
fered
Green identified
supported
specify
findings
factual
scene,
photographs
himself in
taken at the
But,
the conclusion that he
reckless.
was
wearing glasses
and he
not
in the
authority
proposi
cites no
for the
Despite
testimony
photographs.
Green’s
required
that
the trial court
to
tion
contrary,
to the
conclude the evidence
we
findings
include
such statements
its
factually
and
legally
support
sufficient to
fact
conclusions of law. See Tex.R.
that
not
finding
the trial court’s
Green was
298,
additional,
(addressing
299
Civ. P.
wearing corrective lenses
the time
amended,
findings).
and omitted
The trial
the accident.
to
find
required
court is
make additional
Green next
that this factual find-
argues
if
ings
only
of fact or conclusions of law
ing
not
the trial court’s con-
support
does
if
requested,
only
requested
mate
that
reckless.
In support
clusion
he was
controlling
rial relates to an ultimate or
argument,
he relies on
v.
Roister
evidentiary
issue rather
than an
matter.
City
proposition
El
for the
Finstad,
Paso21
Rafferty
See
v.
emergency-vehicle
the failure of an
driver
(Tex.App.-Houston [1st Dist.]
denied).
corrective lenses shows
wear
(cid:127)writ
Green does
contend
Roister, the
only negligence.
jury
But in
Thus,
are
here.
these conditions
satisfied
only
asked
ambulance driver’s
omitted, was
presume
we
court found
negligent;22
glasses
failure to wear
unrequested findings consistent with its
thus,
negligence
only
standard
if other
of the same
elements
applied.
Osterberg,
S.W.3d at
recovery
are included
ground of defense
objection
is no
(holding
there
findings
pre
trial court’s
charge,
sufficiency
jury
a defective
findings
supported by
the evi
sumed
must be
299;
measured
Black Dallas
dence.
P.
TexR.
Civ.
El
Unit,
charge).
Paso
Because
County
Child
Welfare
preserve
regarding
failed to
error
the sub-
K.R.P.,
(Tex.1992); In
630 n. 10
re
simple negligence
mission of a
standard
(Tex.App.-Houston [1st
standard, the
denied).
rather than the recklessness
2002, pet.
Dist.]
issue of recklessness was not addressed.
a. Failure
Corrective
Wear
Roister, 972
at 59.
Lenses
Finding
points
is not
Green also
his doctor’s
Green asserts
No.
factually
testimony that keratoconus did
con
supported
legally suffi-
*19
evidence,
argument cannot
tribute to his failure to see the Alfords’
cient
but this
statement,
making
Although Green testified that
vehicle. But
be sustained.
(Tex.1998).
22.
Id. at 59.
21.
Although driving through a fire truck argues Finding intersection a red in rush No. 26 is holiday requires contradictory testimony hour traffic on a to his and to weekend accurate, rapid, testimony firefighter assess- and continual Lawhorn Vaught, ment reassessment of each of the relative lo- southbound driver whom entering cations of the other on both testified that Green slowed before vehicles streets, argues only Green not undertook this ex- the intersection. Green further three other testi- slowing necessary ercise without that because witnesses only they but chose not to fied did not see the fire operation, safe wear lights, testimony their is not lenses to correct his blurred truck’s brake wrote, Finding impaired Green's view of that lane was due No. the trial court collision, traffic, Christopher specify "Prior to the defendant court did not the rea- did not see the northernmost lane of finding separate and son for the additional Parkway.” Although westbound Fairmont "did not see" the lane. that Green Finding 15 that the trial court wrote in No. *20 great actually finding not he is not contradicted probative of whether or weight preponderance evidence. disagree. the fire truck. slowed We therefore conclude that evidence We “probative” logi is it Evidence finding factually suffi supporting the is cally particular proposi to make a tends that Green’s cient. We further determine consequence of to an issue at trial tion operation for safe of failure to slow to likely. more or Boswell v. Bra either less supporting factor fire truck is another Inc., 910 Co-op., zos Elec. Power reckless. conclusion that his conduct was 1995, 593, (Tex.App.-Fort 601 n. 3 Worth Pruett, v. 44 S.W.3d Amartillo denied). exceptions certain And with writ de (Tex.App.-Amarillo pet. here, inapplicable operated vehicles nied) (factfinder could consider officer’s equipped at Texas roads must be determining traffic conditions in speed and light on the rear least one brake mounted recklessness). a red or amber of the vehicle that emits High De- c. Actual Awareness for at light sunlight visible in normal least Injury gree of Risk of Serious are 300 feet brakes vehicle’s Transp. § 547.323 applied. Tex. Code Ann. court found Finding In No. the trial (Vernon 1999). Testimony that a witness that driv- that Green had actual awareness lights on a did not see illuminated brake hour into ing the fire truck at miles moving is some indication that vehicle heavy cross-traffic an intersection with at that the brakes applying driver was able to against being a red without time. traffic had that all of the lanes of first see high degree of risk yielded posed hand, the other uncontroverted
On even Although contends injury. Green serious fire applied that evidence Green finding is supporting this evidence not conclusive truck’s brakes is evidence insufficient, he does legally factually necessary oper- he “as for safe slowed the facts specifically challenge any 546.001(2)(authorizing § id. ation.” Cf. Instead, con- finding. he recited this proceed emergency operator vehicle north- his failure to secure the tends that “after signal stop sign a red traffic or past Fairmont was ernmost lane of westbound operation”). slowing necessary for safe not reckless. could found that court have entering the brakes before applied argument, this support In traveling but at such the intersection operators “emergency vehicle states speed rate of that he could not slow high lights red proceed entitled to necessary operation.” for safe This “as Here, exists.” though risk even some testimony supported by inference however, con- are not concerned with we Stage, among others. Schlueter and risk,” con- but with posed duct that “some have Green knew should than a scintilla of duct Because there is more degree of risk “high posed “as nec known that Green failed slow evidence applicable test intersection, injury.” That is serious essary” entering before Mar- under Texas law. support for recklessness legally sufficient tin, 430-31.24 addition, at finding. In the trial court’s York, City New addressing cir- first cites Badalamenti that courts 24. Green asserts 12648/01, *2 2005 WL presented here No. to those cumstances similar 24, 2005). According to (N.Y.Sup. Jan. driver's conduct was not have concluded the Green, contention, illuminating because the case is support of this reckless. *21 heading, gree Under the same of argues injury posed by risk of serious that, in reviewing of the evidence reckless- crossing intersection ness, are considering we barred from during holiday rush a hour of weekend testimony Stage. of Robert According to of securing without a lane traffic that Green, Stage’s is of no testimony probative crossed the at 45 intersection miles force because holds Green Stage to an hour. legal
improper standard that he testified a d. Failure to Siren Use firefighter a is to secure all Again, lanes of cross-traffic. disagree. we In arguing that evidence is insuffi- Stage testified that Green should have finding to support cient that he failed known that failure to secure all lanes of siren, points to use a out that fire- posed degree cross-traffic high a of risk of fighter bystand- Lawhorn and four other injury. serious This uncontroverted testi- agree testimony ers with his own mony addresses legal the correct standard fire truck’s siren activated. was- Neverthe- for recklessness under Texas law.25 less, the Alfords four other and witnesses
Thus, siren, did not hear a and legally although evidence is a factual- wit- ly sufficient to ness a support might the conclusion that fail to hear siren for a variety Green should of high reasons, have known de- of such failure nevertheless is Korba, court police part determined that a officer’s “fail- lies in on v. 296 A.D.2d Salzano prior 393, 56, stop entering (2002). ure come to a full 745 N.Y.S.2d But the partially intersection that, with his vision obscured explained court under New York Salzano law, not, [sic], standing along does render his con- liability performance for an officer’s of a reckless, lights duct even if ... his turret discretionary duty imposed only for were siren not in use.” disregard" safety "reckless for the of oth- ers, which is defined as the conscious or Badalamenti, however, has been reversed: "doing intentional act of an of unreason- Here, parties’ evidentiary submissions disregard able a character in of known or police indicate that the defendant officer great highly obvious risk so as to make it stop sign did stop at the which con- probable that harm would follow" and done trolled the where the intersection accident with conscious indifference to the outcome. occurred, that of the his view intersection (citations omitted). Id. This is not the stan- truck, partially parked obstructed similarly dard in Texas. Green relies on a speed and that he upon accelerated his en- which, case, Mississippi like the New York addition, tering the intersection. there cites, imposes liability only cases he for a disputed as to issues of fact whether the disregard” different measure "reckless police defendant officer activated the turret public safety. Kelley County, Grenada lights and pro- siren on vehicle before ("Our (Miss.App.2003) 859 So.2d ceeding into the Under intersection. these disregard' case law indicates ‘reckless em- circumstances, are not enti- defendants braces willful or wanton conduct which re- tled to as a matter law on the quires knowingly intentionally doing police issue whether the defendant officer thing wrongful (quoting act." Turner v. operating his vehicle in reckless disre- Ruleville, (Miss. gard 735 So.2d others at the time the accident. 1999))). Further, (2006) A.D.3d none cases on which 817 N.Y.S.2d added). (emphasis present Green relies the combination of facts here, presented including Green further contends that "New York’s Green’s failure to application particu- required by the recklessness test is wear corrective lenses he was larly compelling, expressly any as Martin relied operating law to do when motor vehicle. authority establishing New York Moreover, court could have con- argument unpersua- Texas standard." This driving Although speed cluded that at a sive. New Green was York Texas courts terms, posed high degree injury
both use similar Texas risk of measures reck- serious differently. example, considering Stage’s testimony. lessness Green re- even For without *22 2003, (Tex.App.-San that there no siren to some evidence was Antonio Smith, pet.). no In the Fourth Court City be El Paso v. heard. Appeals a an held as matter law that 819, Higginbotham, 993 S.W.2d 825-26 in- approached ambulance who an driver 1999, (holding (Tex.App.-El pet.) Paso no lights tersection the vehicle’s and si- with they testimony that that heard witnesses’ rens activated and before the inter- slowed no re- summary siren defeats Id. at section not reckless. 546. garding ambulance driver’s faith be- “ emergency court reasoned that ‘an vehi- that cause there was no evidence the driv- to an operator responding emergency cle running er a red could have believed that proceed against is to a red call allowed light justified). the using siren was without light slowing opera- traffic for safe after addition, In Chief that Gardner testified ” added) (emphasis (quoting tion.’ Id. recording there is a of the radio transmis- Antonio, Flores v. San No. 04-99- truck, sions from the fire and that a (Tex. 00555-CV, at *4 WL is firefighter transmitting the siren while 14, 2000, App.-San pet. Antonio June de- on, is the siren can be heard the radio nied) (not designated publication)); for see transmission; however, no he admits that Flores, *4 also at WL siren can be heard on the radio transmis- insu- (“[Ejmergency operators vehicle Engine Although made from 81. sions Chapter lated under 546 from conduct Green the failure of contends that some recklessness, proceeding for short probative to the siren is not witnesses hear through light slowing a red after for safe activated, this of whether the siren was operation signals audible or visual argument explain why does not the sound added) (emphasis (citing Hale activated.” register of a to on a recorded siren failed Pena, (Tex.App.- transmission. pet.))). Here, Fort howev- Worth that, light We conclude the viewed er, did the factfinder concluded Green finding, court’s most favorable to trial safe necessary operation not slow as is sufficient to allow reason- evidence Thus, the intersection. entering before to use disagree able about Green’s people Smith is inapposite. siren; thus, or non-use argues that he enti- Green further finding. is to legally support sufficient presume to that other vehicles tled Moreover, light, in a viewed neutral yield support to the fire truck. In of this weight not finding against great is lan- argument, following he relies on the there- preponderance of evidence. We Supreme from guage the Texas Court’s fore the evidence also is conclude decision Martin: “It unfortunate factually support sufficient vigilant less some civilian drivers are than finding. court’s abiding by keep their duties to a lookout next the failure to vehicles, contends that yield but emergency for and to entering an intersection operators use a siren when emergency are entitled vehicle support finding respect does that other drivers will presume Martin, support argu- of this emergency priorities.”26 of recklessness. Janda, rea- But the court further ment, he on Smith v. relies however, Here, ordinary prudence person did find the trial court reasonable vigilant” than or that Ronald Alford “less cir- would have under the same similar keep To con- proper cumstances," lookout. challenge failed and Green does not trary, Al- the trial court found that "Ronald finding. manner operated his vehicle in a ford $100,000” if the in excess of amount not generally drivers have soned that “civilian $100,000 to a anticipating subject it comes to advantage policy an insurance most Specifically, a collision. Under preventing retention? self-insured circumstances, sirens, dis- lights, apply refusal to challenges the trial court’s coloring emergency tinctive vehicle forth in section damages cap set ” it out from the others.... make stand 108.002(a)(2)(C) Practice of the Texas Civil *23 Id. Code, provides: Remedies which and the circumstances described Unlike personally lia- is public servant [A] blocked, Martin, Alford’s view was $100,000 damages in excess ble for court, by the trial under the facts as found ... injury arising personal from not to use a siren. Conse- Green chose act or the result of an damages are rather than Alford quently, it Green in the public servant by omission advantage anticipating “an had who servant’s scope public course and a the facts as preventing collision.” Under ... local on behalf of a ... service court, a the trial by found knew the amount not government; and for cross-traffic; light heavy green faced $100,000, is public servant excess of path could cross his at 45 miles that traffic or errors and omis- by liability covered hour; and that his was blurred vision sions insurance.... He and his distance vision was decreased. Ann. Peac. & Rem.Code Tex. Civ. option glasses, his allow had wear (Vernon 2005) 108.002(a)(2)(C) (empha- § drive, siren, else to or someone use added). that because sis Green contends stop entering or before slow down liability a he is an assured under hand, Alfords, on had lane. The the other is- policy insurance errors and omission expect no reason to that Green about Pasadena, section City sued to the against into lane to drive their matter of liability as a caps 108.002 stop him speed a not allow law. colliding anything else in the before with intersection. We therefore conclude that of a statute is a The construction find- supported under the record and the law, de question of we review novo. fact, ings of Green’s failure to use a siren Partners, L.P. v. Due- Operating F.F.P. a factor the conclusion that supporting is (Tex.2007). nez, If an Green’s behavior was reckless. provision only has one policy insurance unambigu it is interpretation, reasonable sum, legally conclude and factual- we matter of ous, must construe it as a and we ly sufficient the chal- supports Lloyds, State Farm law. Fiess v. Further, findings these lenged findings. (Tex.2006). As used support the trial court’s conclusion that 108.002, includes “public a servant” According- section Green’s conduct was reckless. There government.27 a of a local ly, Green’s second issue. volunteer we overrule as a dispute that Green’s work volun is no Liability C. Limitation of of Pasadena is firefighter teer definition. The encompassed issue, an within In his final Green raises City of Pasa agree that the parties also public first is a serv impression: issue of liability on a is the named insured by insurance “for dena [an] ant “covered” Code), 102.001(1) (defining 108.001(1)(B) "employee” to in- (defining "public §§ 27. See id. person government). covered section servant" as of a local clude a volunteer of the Civil Practice and Remedies 102.001 108.002(a)(2)(B) policy, § and errors and Prac- omissions of the Texas Civil policy in- Code, defines the term “assured” to and Remedies defen- tice[ ] because City’s acting clude the volunteers while Christopher dant Green’s conduct consti- scope within the of their duties. In addi- gross negligence.” tuted Section tion, parties in- agree City’s that the 102.002(c)(2) of the Civil Practice and policy unambiguous surance and can be that, provides Remedies certain Code They construed as a matter of law. also here, exceptions inapplicable gov- “a local not dispute do that the accident occurred may pay damages ernment awarded acting scope while within the employee an from a arise Finally, undisputed his duties.28 it is involving wrong- cause of action wilful City’s policy subject insurance act or ful omission or act or omission (“SIR”). $100,000 self-insured retention constituting gross negligence.” Id. *24 however, parties disagree, The on how sec- 102.002(c)(2). § applies tion 108.002 to these facts. challenge Green does not the trial Interpretations Presented that, statute, City court’s conclusion the that, regardless The Alfords of argue indemnify is not authorized to him. Nev- coverage potentially whether was available ertheless, he contends that because he is $100,000, for amounts excess of Green an an “oc- “assured” and the accident was not “covered” “for the amount not in act,” “wrongful coverage currence” or for $100,000” excess of coverage because is him triggered policy. under the He (a) $100,000 SIR, subject to a “self- right asserts that he “has a contractual of (b) insurance”; insurance is not as an as- indemnity policy under the such that the sured, responsible paying Green is for the $100,000 City provide must the first of $100,000 SIR, and he therefore no derives indemnity company the before insurance (c) requirement; from benefit the SIR the provide up poli- must the to the remainder policy imposes City on the obligation Thus, cy limit.” us to con- urges (d) behalf; the the pay SIR on Green’s policy both the the de strue statutes and AJfords’ automobile agreed insurer novo, the affords him policy conclude that the gap coverage.” SIR is an “uninsured $100,000 coverage, judgment of and render The trial court concluded that section statutory that he is entitled to limitation of not apply 108.002 did to Green for two liability a matter of law. Fust, reasons. the time of the colli- “[a]t Comparison of Section sion, for the amount not excess of 108.002(a)(2)(C) Policy and the $100,000.00, Christopher defendant terms section Under by liability or covered errors and 108.002(a)(2)(C), liability public of a insurance; only omissions he was covered injury damages is lim- personal servant for City policy under the of Pasadena for the $100,000 ited to if “for the amount not $100,000.00 amount above $100,000, is $1,000,000.00.” Second, public excess of servant “under 102.002(c)(2) by liability § covered or errors and omis- of the Texas Prac- Civil ” does Code, inquiry sions insurance.... Our and Remedies tice[] “may not focus on some accidents indemnify Pasadena is not authorized to whether Green, in- pursuant to or the actor is Christopher defendant be” covered whether carrier, however, party part 28. The is not a to this of the record. suit, position regarding coverage and its is not $100,000. $100,000,” exceeding policy for amounts not shift sured cess does Ass’n, costs, ex- investigative the risk defense Northglen See Brooks v. 141 S.W.3d penses, or from Green (Tex.2004) (“When adverse construing City. to the carrier or even to the statute, presume the Court must that ev- Cf Cheatham, Stewart Title v. Guar. Co. ery legislation meaning.”). word has (Tex.App.-Texarkana Rather, statute, satisfy terms of denied) an (explaining that in- writ $100,000 personal injury the first dam- particular surer “assumes risks” ages i.e., the amount “not in excess” — insured).31 contrary, require- To the $100,000 be under lia- “covered” —must ment SIR pay ap- “assured” bility policy. errors and omissions City. plies equally to both Green and the however, policy’s terms, The describe its Windt, See Allan D. & Ins. Claims Dis- coverage as “excess” insurance above a putes (3d 1995) 11.31, § at 348-50 ed. $100,000 self-insured retention. SIR viewed, a (“[Pjroperly self-insured reten- is “that specified defined as dollar amount tion does not constitute insurance .... in the Schedule of Reten- Self[-]Insured represents the amount [but instead] obligated pay tions which the Assured responsible loss that the insured is because of loss or damage covered under coverage before triggered.”); see any poli- Section of this policy, before Robineau, Corp. also Hertz *25 cy the Assured for the same indemnifies 332, 1999, (TexApp.-Austin pet.) 335 added).29 (emphasis loss.” The “is carrier (Under law, Texas “self-insurance is not only liable for the Ultimate Net Loss in ”). ‘other insurance.’ applicable excess of the Re- Self[-]Insured sum, contends, In City Green “If the tention, not and more than the Excess $100,000, pays the first Green is covered.” Limit of Insurance.”30 The carrier has no But only section 108.002 is concerned with duty to defend. $100,000.” that “first See Tex. Phac. & Civ. policy requires the pay “assured” to 108.002(a)(2)(C) § (liability Rem.Code Ann. $100,000 SIR, volunteer, the and as a is limited the public servant is covered is Green included in the definition of “as- by liability insurance “for the amount not Thus, added)). sured.” “for $100,000” the amount not in ex- of (emphasis in excess readability, For capitalization 29. full has been It is axiomatic that self-insurance is not changed capitalization. to initial "allegation insurance. An of self-insur- ance, insurance, equivalent which is to no net "Ultimate loss” is defined to include: concept repugnant is the to of insurance hospital, charges medical and funeral and fundamentally shifting involves the salaries; paid wages; compen- all sums as contract, by party, to a third for a consider- fees; sation; doctors, nurses, expenses for ation, the of risk loss as result of an attachment, legal; premium appeal and on incident event.” or (but any or similar bonds without obli- Servs., Inc., (quoting v. Richardson GABBus. gation part apply of to [insurer] 519, 523, 519, Cal.App.3d Cal.Rptr. 161 207 bonds); expenses for or furnish such of (1984)); Physicans Co. Ins. Ctr., Ohio v. of lawyers investigators persons and and other Hosp. App.3d & Grandview Med. Ohio settlement, litigation, adjustment and for (1988) ("[Sjelf- 542 N.E.2d investigation of claims and suits which insurance; insurance is not it is the antithesis paid consequence any as or loss of insurance. Insurance shifts the of loss risk damage covered hereunder. from an an insured to insurer. Self-insurance Cal., Regents by ‘is the retention of the risk of loss the one also Chambi XJniv. 822, 826, upon imposed by Cal.App.4th Cal.Rptr.2d directly whom it law or (2002): ”). contract.’ that, $100,000 by Thus, is not court’s uncontested conclusion coverage excess of statute, to in- City issue. is not authorized sum, policy does demnify Green. problem Green’s ar- An additional require indemnify not the insurer to in his use gument is manifested Green, section 102.002 does not au- uncertain “if.” This word denotes an word toCity indemnify thorize the him. possibility, obligation, not an and Green anyone failed to establish that has obli- record, On this we conclude Green failed $100,000 first gation pay to him by liability he “is covered” to establish that him a as result damages assessed insurance “for the or errors and omissions uncertainty magni- claim.32 This $100,000” not those amount in excess of finding fied the trial court’s terms are used section 108.002. We City of Pas- grossly negligent and issue, therefore overrule Green’s third pay adena therefore is authorized question do not the broader we reach id. against him. See damages awarded retention consti- whether self-insured 102.002(c)(2) gov- § that a local (providing general tutes “insurance” in a more sense. arising may pay damages ernment from or omission that constitutes an act IV. Conclusion not contest gross Green does negligence). hold that failed to conclusive- We finding grossly negligent that he was acting ly establish that he was regarding court’s conclusion the trial faith at the time of accident. We 102.002. He application of section is le- further determine that the evidence authority support cites no evidence or factually support gally and sufficient the contention that the nevertheless findings judgment. Fi- challenged obligation “provide has an first nally, that Green failed to we conclude *26 $100,000 indemnity” alleges. of as Green law, he establish, as of is a matter He no that he contract- produced evidence by for an liability insurance covered City satisfy the SIR obli- ed to $100,000 exceeding amount necessary the carrier’s gation trigger to Practice and by section 108.002of Civil duty policy itself indemnify, to Having each of Remedies Code. overruled obligations does not define the between presented appeal, on the three issues we Payne Helmerich & Int’l assureds. See judgment. the trial court’s affirm Co., 180 Drilling Energy Co. v. Swift (Tex.App.-Houston 641-42 FROST, J., concurring. (holding that the pet.) no [14th Dist.] general a liabil- language comprehensive of J., HUDSON, dissenting. obli- ity policy imposed contractual Justice, FROST, KEM THOMPSON to reimburse gation on the named assured rehearing. concurring on en banc
additional assured claims within amount). join judgment, I in the en court’s Moreover, argu- this banc deductible disagree I with both the respectfully the trial be reconciled with but ment cannot behalf, out, agreed pay to on his pointed the SIR previously we have As thus, facts; satisfied a an insured has we issue whether record does not establish these presents question of retention a self-insured question with the are not confronted Co., Am. Corp. v. Great Ins. fact. Lennar be “covered whether Green would considered (Tex.App.-Houston [14th liability by such circum- insurance” under denied). cites no evi- pet. Dist.] stances. voluntarily paid has dence that action, perception on the official’s legal standard based majority’s description immunity analysis to the official applicable the time of the event.4 the facts at majority’s and the decision address to the of the test refers aspect “need” the record contains sufficient evi- whether requiring of the circumstances urgency that no in Green’s person dence reasonable is deter- emergency response, and need position could that the facts have believed by factors such as the seriousness mined justified his conduct. the official is re- to which incident immediate sponding, the official’s whether Legal Applicable Official Standard prevent injury or necessary presence Immunity Analysis life, courses of loss of and what alternative issue, that the argues In his first action, to achieve any, available by denying court erred his motion for aspect result.5 The “risk” comparable judgment as a matter of In that law. faith, hand, to the good on the other refers motion, that the Green asserted evidence safety concerns: the countervailing public conclusively proved at trial his defense harm that the offi- severity nature and issue, immunity. official To sustain this (including inju- cial’s actions could cause this court have to conclude that the would possibility as the bystanders ries to as well conclusively proved at trial evidence prevent the official that an accident would To good Green acted faith.1 determine reaching emergen- from the scene of the faith, this good whether Green acted cy), any harm likelihood would objective court must use the standard occur, of harm any risk whether adopted City Lancaster v. Chambers2 official.6 reasonably prudent be clear to a reasonably prudent and ask whether offi- conflicting If contains evidence the record cial, under the same or similar circum- stances, regarding upon the circumstances which could have that his con- believed justified good duct based on the information determination of faith objective possessed engaged he in the con- based, then, good for the record show duct.3 faith, proves it contain must legal faith under the above standard reasonably faith depends
Good
how
circumstances7 and the offi-
based on the
prudent official could have assessed both
legally
suffi-
cial’s conduct shown
respond-
the need to
the official
*27
to the claimant.8
ing and the risks of the official’s course of
cient evidence favorable
Builders, Inc.,
p.
Ballantyne
Champion
perceived them.”
See ante at
1. See
v.
cial]
417,
(Tex.2004).
that evidence is rele-
144
This statement
indicates
subjec-
only
what the
vant
if it shows
official
650,
(Tex.1994).
2. 883 S.W.2d
law,
However,
tively perceived.
under Texas
objective
pre-
apply an
standard
courts
Ballantyne, 144
at 426.
3. See
surrounding
perceived the
that Green
sume
by the trier of fact
circumstances
found
Montgomery,
4. See
v.
951 S.W.2d
Wadewitz
Smyly,
County v.
exist.
See Harris
464,
(Tex.1997); Chambers,
883 S.W.2d
(Tex.App.-Houston [14th
at 656.
Davis,
pet.); City
no
Houston
Dist.]
(Tex.App.-Houston [14th Dist.]
57 S.W.3d
Wadewitz,
The Official hour; per was 45 miles presented The evidence at trial would (cid:127) intersection, people When Green entered the enable reasonable and fair-minded red; him light facing the traffic was following to find that circumstances existed Green entered the intersec- when (cid:127) facing The traffic westbound tion: Parkway green; Fairmont (cid:127) responding Green was to an automatic (cid:127) 39,500 weighed truck pounds; The fire building approximately fire alarm at a (cid:127) in the southernmost and mid- Trucks station, one-half mile from the fire dle lanes of westbound Fairmont majority au- overwhelming and the Parkway impaired Green’s view tomatic fire alarms are false alarms or traffic; lane of northernmost require pres- do not the immediate (cid:127) Green did not see the northernmost firefighter; ence of a Parkway; Fairmont lane of westbound
(cid:127) keratoconus, Green has suffered from (cid:127) delayed by Green been would have disease, progressive eye since at slowing by stopping 15-30 seconds 1995; least necessary to that all traf- ascertain (cid:127) Approximately ten months before the yielded. fic had collision, to his doctor reported Green conduct, fair- As to Green’s reasonable and experienced
that he decreased dis- find, on the blurring, people tance and he re- minded could based vision and that, evidence, wearing cor- special prescrip- fused a contact lens while li- required by lenses his driver’s job firefighter; tion due to his as a rective cense, (cid:127) the fire truck into the Green drove 9, 2002, reported On December lane of Fairmont northernmost westbound eye specialist changes to his Parkway at 23 miles hour and did acuity; blurring of his visual had use the fire truck’s horn or siren. difficulty experienced vision and television; watching Green did not introduce evidence (cid:127) accident, At the time of the Green was faith to applied legal standard driving the fire truck in of a violation the above the above circumstances and restriction on his driver’s license applicable legal stan- conduct. Under him to wear corrective lenses dard, the record contains no trial evidence driving; while official, under reasonably prudent that a (cid:127) firefighters Other available to were the same as circumstances similar to or truck;
drive the fire above, could have believed those stated (cid:127) Green entered the intersection When con- engaging in the above-described Jana, it Parkway
of Fairmont the information justified duct based on evening Friday hour on the be- rush the in- he entered possessed *28 weekend; ginning Day Labor Therefore, never tersection. the burden (cid:127) present to the Alfords to evidence knowledge Green had actual that traf- shifted intersection; posi- in Green’s person that no reasonable heavy
fic
be
at this
would
Therefore,
accurate
favoring
duct.
it would be more
inferences
the claim-
reasonable
However,
evidence that
p.
there
to state that
there must be
ants."
ante at
See
legal stan-
proves good faith under the above
may be
reasonable inferences
some facts and
offi-
and the
favoring
pertain to
dard based on the circumstances
the claimants that do not
legally
by
conduct shown
the
sufficient
conduct and the circumstances
cial's
the official's
engaged
the claimant.
in that con-
evidence favorable to
under which the official
tion could have
ing colleague’s
believed that
the facts
expert
conclusion that
tes-
(hereinafter
justified
timony
his conduct
be
for
Al-
necessary
“Claim-
would
the
Burden”).9
satisfy
Burden,
fords to
the
ant’s
Claimant’s
Accordingly, this court
dictum,
an
majority
obiter
neverthe-
need
address our dissenting col-
less
testimony
concludes that
league’s
expert
contention that
testimony
expert,
Gardner,
Green’s
Chief
satisfies
be necessary
for the Alfords to sat-
Burden.13
Claimant’s
As our dissent-
isfy this burden.
applicable
Under the
ing colleague points out, Chief Gardner
review,
standard of
presented
evidence
testify
did not
person
that no reasonable
at trial would enable reasonable and fair-
position
Green’s
could have believed
people
minded
to find that Green did not
justified
that
the facts
his conduct.14
prove that he
good
acted in
faith.10
This court
need
address
ex-
whether
upon
cases
which Green relies are
pert
testimony
necessary
would be
point.11
not on
argument
Green’s
that this
satisfy
Alfords to
this burden for an-
court should disregard circumstances or
other
applicable
reason. Under the
legal
conduct that otherwise would be relevant
standard, the record contains no trial evi-
good
faith inquiry
they proxi-
unless
dence that a reasonably prudent official,
mately caused the collision contradicts au-
under circumstances
similar to or the
thority
Supreme
from the
Court of Texas
above,
same as those stated
could have
and from
reason,
this court.12 For this
engaging
believed that
in the above-de-
trial court did not err in denying Green’s
justified
scribed conduct was
based on
motion for
law,
as a matter of
the information
possessed
when he
and Green’s first issue is properly over-
Therefore,
entered the intersection.15
ruled.
Alfords were not required
satisfy
Though
majority
acknowledges that
court,
Claimant’s Burden in the trial
this court need not address our dissent-
any failure to
grounds
do so is not
for re-
Clark,
University
9. See
Houston v.
high
stances and which reflected a
risk from a
578,
(Tex.2000).
S.W.3d
burning building in which there were adults
children);
Campbell,
Johnson
592,
Clark,
(conclud-
(Tex.App.-Texarkana
10. See
594-96
Conclusion to exercise their duties without officials banc to proper It is for the en court damage fear suits consume of that would rehearing, motion for grant the Alfords’ their the threat of energy time and and panel the and affirm the opinion, vacate the might appreciably inhibit fear- which judgment.16 trial court’s less, vigorous, and administration effective policies government. Borrego City HUDSON, Justice, Senior J. HARVEY Paso, (Tex.App.- El dissenting rehearing. on en banc denied). Thus, pet. E1 Paso evidence (1) majority concludes that opinion establish a lack negligent acts does not establishing had the burden of his Green good “If a government employee faith.1 (2) immunity, defense of official affirmative scope employment acts the of his in within im- necessary to establish official the facts discretionary duty the performance (8) and the trier of munity disputed, were faith, good and he is entitled to acts disputes factual in fa- fact resolved those his acts immunity though official even Thus, the Green failed to Alfords. vor illegal.” or Johnson v. negligent, even immunity, official establish his defense of (Tex.App.- Campbell, affirmed. The resolu- and denied).2 2004, pet. Texarkana but it effec- simple compelling, tion is and defense of official im- tively abolishes the faith, his Green testi- To establish munity. respond weighed fied need to that he the risk of quickly against to the alarm question is no the Alfords submit-
There
entering
injury from
the intersection on a
found,
ted,
court
sufficient
trial
risk,
red
To minimize the
light.
negli-
facts to establish that
acted
(1)
emergency lights
said
he
activated
proceeding through
the intersec-
gently
station; (2)
However,
he
purpose
leaving
he
siren before
tion as
did.
opinion,
shielding government
majority
officials
harass-
As noted
16.
factually
legally
sufficient
ment and inevitable hazards of vindictive or
findings regarding
challenged
support
damage
response
filed in
ill-founded
suits
addition, Green failed to es-
recklessness.
fulfilling
take
their offi-
actions officials
while
law,
tablish,
is covered
as matter of
privilege protects the
responsibilities,
cial
ex-
liability
for an amount not
insurance
though
public
This
even
interest.
is true
$100,000
required by
ceeding
section
privilege may
citizens suf-
result in individual
108.002(a)(2)(C)
Texas Civil Practice
of the
fering
pecuniary loss due to
mali-
some
Therefore, the second
and Remedies Code.
government officials. Cloud v.
cious acts of
merit.
third issues also lack
(Tex.App.-Austin
McKinney,
Further, Stage opinion regard- his based corrective lenses Green’s failure to wear recklessness on the fact that ing Green’s accident, cause of the contributing awas words, Stage an accident. In other he had regard in this testimony Gardner’s a testified because Green collided with been to rebut Green’s de- have sufficient vehicle, conduct, a ipso facto, his involved thereby creating immunity fense of official testified, Stage risk. “If high degree of However, the trier of fact. fact issue for thought it clear looked and was [Green] to see Green failed court found there, there then he vehicle vehicle, because he failed the Alfords’ clear- didn’t take the time to look and see lenses, in- but because to wear corrective However, ly.” agree Stage’s I do not with blocking his view of tervening traffic was per- assumption that Green’s inaccurate Thus, failure to right the far lane. Green’s it ception necessarily rendered unreason- lenses is immaterial be- wear corrective able for him to have believed all traf- cause of the contributing cause it not a knowledge stopped upon fic based accident. so, any time. “If this admis- at the were times that a risk existed would defeat several wheth- sion Gardner was asked faith, any collision any firefighter element of er reasonable would have at 23 miles adequate that a reason- entered the intersection would be the third lane hour when he could not see employee able would have assessed repeated- response, Gardner differently, thereby vitiating the doc- of traffic. risk made, upon which hind- but purpose official immu- reasonable 5. The of common-law being nity protect public negative light. officials from at 463. sight is to Id. has cast were defend their decisions that forced to ly testified believed such a sce- driver of fire truck never truck, firefighter proceed okay? nario the should sees Alford *32 regard.” “due Gardner was then asked: Yes, A. sir.
Q. Okay. But talking I’m about all traveling at Q. The fire truck is he assumptions. these If was going speed stop it cannot before it miles-per-hour, he see last couldn’t enters the northern most or third lane of time; traffic, if stop lane of he couldn’t Parkway? westbound Fairmont regard, that wouldn’t be due it? would Yes, A. sir. Oh, no,
A. sir. Now, Q. Okay. knowing these all of Thereafter Gardner was asked: assumptions taking all these as- would have sumptions, Mr. Green
Q. right. All talking We were about acting regard; been due isn’t that regard. due I wanted come back to right? your this. This was testimony, right,
that a reasonable operator you. fire truck A. I disagree with regard, must right? use due Well, Q. Okay. which one these mean, A. assumptions Uh-huh. you you do —I —are disagreeing the assumptions? Q. truck, While a fire operating right? “yes”? Is that A. How truck fast Alford mean, traveling? I there is a lot No. 1? things you putting that are not in here. Yes, A. sir. operator truck his re- fire fulfilled Q. your Is this testimony that a rea- quirement visually by checking the lane sonable fire truck operator must use due and he was operating of traffic regard? apparatus regard in due it because was Yes, A. sir. assumption he acquired had Now, Q. I you want to consider right-of-way to that intersection when assumptions: these proceeded it. through 2: Number A truck fire has a red added). (Emphasis Jana, light on okay? testimony Gardner’s While comes close A. Uh-huh. issue, creating a fact the test is not Q. okay? Is that firefighter whether “reasonable” yes, A. I said sir. per hour, stopped, to 2 have slowed miles stepped physi- even out of the truck to Q. Parkway Westbound Fairmont cally inspect all lanes traffic on foot. lane, has lanes at three 11 feet wide words, In other the “test of faith good okay? inquire does not into ‘what a reasonable Yes, A. sir. done,’ person would have but “what a into Q. Westbound Fairmont Parkway ” [person] reasonable could have believed.’ intersection, a busy okay? Ballantyne, (quoting Yes, A. sir. Telthorster, 92 at 465 quoting Wa- Q. The time of the collision dur- Montgomery, dewitz ing hour, okay? Friday rush (Tex.1997)). Here, 467 n. 1 Gardner did Okay. A. testify firefighter that no reasonable Q. by The vision of the northern most could have believed risk taken lane of Fairmont is westbound obscured Green when he entered the intersection train- justified firefighters usually under the have 12 weeks of light a red firefighters.
circumstances.
ing
all are certified
Some
driving
training
relates to
portion of
contend Green is bound
The Alfords
witness, for ex-
emergency vehicles. One
findings
of fact and that
court’s
ample,
for driver certi-
described
course
regard-
findings
such
created a fact issue
requires
a minimum of
fication
Stage’s
Green’s
faith.
ing
as,
instruction,
testing
hours
as well
testify
that no
and Gardner’s failure
exercises.
qualification
driver
firefighter
entered
reasonable
would have
*33
did
the
intersection as Green
under
the
certainly
sphere
in the
driving
While
circumstances,
ques-
the
same or similar
average laymen,
for the
few
experience
plaintiff
can rebut a
tion is whether
experience driving emergency
any
have
as
prima
showing
good
facie
faith so
to
Moreover, to
a defendant’s
vehicles.
rebut
a fact issue without
benefit of
create
good
so
to create a fact
showing of
faith
testimony.
expert
issue,
“no
plaintiff must first show that
“scientific,
It is well established
person
posi-
in the
reasonable
defendant’s
technical,
knowledge
specialized
or other
thought
the facts
tion could have
were
of fact to understand
will assist the trier
they
acts.”
justified
such that
defendant’s
fact in
or to determine a
the evidence
Chambers,
(emphasis
Alfords did of offi- prima
rebut Green’s facie defense (2) immunity and no fact exists
cial issue
on this issue for the trier of fact to resolve.
Accordingly, respectfully I dissent. LAKE
CLEAR CITY WATER
AUTHORITY, Appellant, DEVELOPMENT, LTD.,
KIRBY LAKE Development L.L.C., Company,
Miter Lake, Taylor Ltd., Appellees.
No. 14-08-00013-CV. Texas, Appeals
Court of (14th Dist.).
Houston
Aug.
Rehearing Oct. Overruled