DISSENTING OPINION
Affirmed and Majority and Dissenting Opinions filed August 29, 2023.
The majority errs in affirming the trial courts denial of the Citys amended plea to the jurisdiction for two reasons. First, the majority erroneously concludes the City failed to conclusively prove that Officer Simmons was performing his duties in good faith because the city Officer Jefferson did not assess properly the needs/risk analysis in his affidavit. Second, the majority erroneously concludes that the emergency exception to the waiver of immunity in the Texas Tort Claims Act does not apply because an earlier en banc opinion found a fact issue as to whether Simmons acted with reckless disregard for the safety of others. The majority is wrong on both counts.
The evidence conclusively establishes that Officer Simmons acted in good faith.
The majority opinion correctly states the law on what the City must show to be immune from suit and liability. The problem lies with the majoritys application of the law. The City contends the evidence conclusively establishes that Officer Simmons responded to the robbery call in good faith and is protected from liability to Gomez by official immunity. If so, Simmons would not be personally liable to Gomez, and the City would retain its governmental immunity. See City of San Antonio v. Riojas, 640 S.W.3d 534, 537 (Tex. 2022); DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995). Under the official-immunity defense, a government employee may be immune from a lawsuit that arises from the performance of the employees discretionary duties in good faith, provided the employee was acting within the scope of the employees authority. City of Pasadena v. Belle, 297 S.W.3d 525, 530 (Tex. App.—Houston [14th Dist.] 2009, no pet.). It is undisputed that the lawsuit arises from Simmonss performance of his discretionary duties while acting in the scope of his authority. The only element in dispute is whether Simmons acted in good faith.
Good faith depends on how a reasonably prudent officer could have assessed both the need to which the officer was responding and the risks of the officers course of action, based on the officers perception of the facts at the time of the event. Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997). The “need” aspect of the balancing test refers to the urgency of the circumstances requiring police intervention. Id. In the context of an emergency response, need is determined by factors such as: (1) the seriousness of the crime or accident to which the officer is responding; (2) whether the officers immediate presence is necessary to prevent injury or loss of life or to apprehend a suspect; and (3) what alternative courses of action, if any, are available to achieve a comparable result. Id. The “risk” aspect refers to the countervailing public-safety concerns: (1) the nature and severity of the harm the officers actions could cause (including injuries to bystanders as well as the possibility that an accident would prevent the officer from reaching the scene of the original emergency); (2) the likelihood that any harm would occur; and (3) whether any risk of harm would be clear to a reasonably prudent officer. Id.
To prevail, a governmental defendants proof must sufficiently address these need/risk factors. Telthorster v. Tennell, 92 S.W.3d 457, 467 (Tex. 2002). An expert giving testimony regarding good faith must discuss what a reasonable officer could have believed based on the officers perception of the facts at the time of the event, and this discussion must be substantiated with reference to both the need and risk aspects of the balancing test. See Wadewitz, 951 S.W.2d at 466–67.
Boiled to its essence, the majoritys analysis consists of a single paragraph where the majority quotes one sentence of Jeffersons affidavit and determines that Jeffersons opinion is conclusory. This superficial conclusion does not withstand scrutiny. The City submitted the affidavit of Officer Isaac Jefferson who is certified and licensed as a Peace Officer through the Texas Commission on Law Enforcement Officer Standards and Education. Jefferson has been employed as an HPD police officer for 11 years; he was promoted to Sergeant in 2015. Jefferson was assigned to the HPD Vehicular Crimes Unit for approximately 6.5 years. Jeffersons duties while assigned to the Vehicular Crimes Unit included responding to regular calls for major and minor auto accidents, and fatalities.
Jefferson states that after the collision between Simmonss patrol vehicle and Gomezs vehicle, Jefferson arrived on the scene to investigate. As a part of his investigation, Jefferson spoke to both Gomez and to Simmons regarding the facts and circumstances of the collision. According to Jefferson, he did not cite Simmons for violation of any traffic laws as a result of the collision. After the collision, Jefferson completed a Texas Peace Officers Crash Report, which according to Jefferson is standard protocol. In that report, Officer Simmons indicated that he was responding to the Priority Two call of a robbery in progress, but that he had turned his emergency lights on in the course of doing so. Jefferson contends in his affidavit that the standard response to Priority Two calls is to run silent without emergency lights and siren.
Jefferson states that he has reviewed the decisions and actions of Simmons while driving in response to the Priority Two dispatch report of an armed robbery in progress and concluded that they were both justified and reasonable under the conditions and circumstances. According to Jefferson, Simmons quickly and properly considered both the need to quickly reach the incident scene and the risk of harm to other drivers and pedestrians from his driving, and Simmons decided that any risk of harm to other drivers and pedestrians from his driving was minimal. In his first affidavit, Jefferson stated that Simmons activated his patrol vehicles emergency overhead lights while responding. Jefferson concluded that Simmons properly and reasonably decided that the need to quickly reach the scene of the robbery and then to assist in the pursuit of the suspect outweighed any minimal risk of harm to others from his driving and from proceeding through the intersection.
In Jeffersons opinion, another reasonably prudent law enforcement officer, including Jefferson, under the same or similar circumstances could have believed that the need to quickly reach the incident scene outweighed any minimal risk of harm to others and that all Simmonss decisions and actions before the accident were justified and reasonable based on his perception of the facts at the time. In addition, Jefferson said that Simmons did not know or believe that his driving to reach the scene posed a high degree of risk of serious injury to others. Furthermore, according to Jefferson, Simmons has indicated that there is no way he did not care about the result of any risk of injury to others, and Simmons believed that any risk of injury to others was minimal. Jefferson said that Simmons took precautions to avoid any such risk by continuing to watch for other drivers and pedestrians while en route to the scene and activating his vehicles emergency overhead lights.
On remand, Jefferson filed a supplemental affidavit that incorporated by reference the statements in his first affidavit with the exception of his statements as to his current position and experience, which have changed since the date of the first affidavit. In 2018, Jefferson became a Master Peace Officer, and at the time of his supplemental affidavit, Jefferson had been employed as an HPD police officer for more than 14 years. Jefferson was promoted to Lieutenant in November of 2020 and was then re-assigned to the Northeast Division.
In addition to the opinions stated in his first affidavit, it is Jeffersons opinion that even if Simmons had not activated his emergency overhead lights as he approached the intersection of Lockwood and Crosstimbers, a reasonably prudent police officer, under the same or similar circumstances, could have believed Simmonss actions were justified based on the information that Officer Simmons possessed at the time. Jefferson says he has reached this conclusion based upon his training, education and experience as a Texas Peace Officer, a Sergeant with HPD, and his 6.5 years of experience with the HPD Vehicular Crimes unit, during which he investigated hundreds of motor vehicle collisions involving police department vehicles, including dozens of collisions that resulted from an officer who was responding to a Priority Two call for service. Additionally, to the extent Officer Simmons decided not to activate his overhead emergency lights, Jefferson opines that another reasonably prudent officer could have believed this decision to be justified because the moderate traffic minimized the need to alert other motorists of his presence, and because alerting the suspect of his presence would cause the suspect to evade apprehension. Moreover, Jefferson states that Simmons was already moderating the speed of his response and staying within the posted speed limit, thus reducing the need for him to activate any emergency equipment. Jefferson says that another reasonably prudent officer could have believed that the weather conditions made traveling with lights and sirens unnecessary because Simmons was already engaging in a slower and more careful response. Jefferson contends that even absent emergency overhead lights, Simmonss training and experience as a police officer would allow him to drive to the scene as quickly, safely, and responsibly as possible under the conditions and circumstances.
Far from being conclusory, Jeffersons supplemental affidavit did precisely what the law requires—it balanced the needs and risks of Officer Simmons entering the intersection without his emergency lights activated. The majority justifies its cursory analysis by citing City of Houston v. Collins, 515 S.W.3d 467, 478 (Tex. App.—Houston [14th Dist.] 2017, no pet.) and stating that it detailed “evidence of needs/risks assessment, including supplemental affidavits from responding officers.” Officer Jefferson supplemental affidavit does precisely what was done in the Collins case.
The City conclusively established Simmonss good faith. Because the City met its burden, then to have raised a fact issue, Gomez must have done more than show that a reasonably prudent officer could have reached a different decision. See Texas Dept. of Public Safety v. Bonilla, 481 S.W.3d 640, 643 (Tex. 2015) (per curiam). Instead, Gomez must have offered evidence that no reasonable officer in Simmonss position could have believed that the facts were such that they justified Simmonss conduct. See id. In response to the Citys amended plea to the jurisdiction following remand, Gomez incorporated by reference the evidence that she had submitted in response to the Citys prior plea to the jurisdiction, which consisted of (1) Gomezs Second Request for Production of Documents and Tangible Things, (2) a copy of the Texas Peace Officers Crash Report for the accident in question, (3) an affidavit of Gomez, (4) excerpts from the transcript of Simmonss deposition, (5) excerpts from the transcript of the deposition of Sergeant Connie Park, and (6) excerpts from the transcript of Jeffersons deposition. In response to the amended plea to the jurisdiction, Gomez did not offer evidence that no reasonable officer in Simmonss position could have believed that the facts were such that they justified Simmonss conduct. See Collins, 515 S.W.3d at 473–80; William Marsh Rice Univ. v. Refaey, 495 S.W.3d 531, 538–39 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). Therefore, the trial court erred in denying the amended plea to the jurisdiction. See Collins, 515 S.W.3d at 473–80.
Gomez argues that Jeffersons affidavit contains a conflict and raises a fact issue because part of the affidavit is based on the premise that Simmons activated the overhead emergency lights on his vehicle and part of the affidavit is based on the premise that Simmons did not do so. Gomez asserts that because Jefferson relies on the disputed fact as to whether Simmons activated the emergency lights on his vehicle, Jeffersons affidavit cannot support a conclusive showing of good faith. As the en banc court stated in the first appeal in this case, an opinion that a police officer acted in good faith does not conclusively establish good faith when the opinion is reached “by assuming the truth of disputed facts,” but an opinion that a police officer acted in good faith may conclusively establish good faith if the person offering the opinion concludes that the police officer acted in good faith whether or not the disputed fact is true. See Gomez v. City of Houston, 587 S.W.3d 891, 898–01 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (en banc) (“Gomez I”). Jefferson opined that Simmons acted in good faith if he activated the overhead emergency lights on his vehicle and also if he did not do so. Addressing two alternate fact patterns does not raise a genuine fact issue that prevents the City from conclusively proving good faith. See id. Gomez asserts that Jeffersons affidavit lacks credibility because Jefferson stated in his report on the accident that Simmons did not activate the overhead emergency lights. But making a statement as a fact witness that Simmons did not activate the overhead emergency lights on his vehicle does not prevent Jefferson from giving an expert opinion addressing Simmonss good faith if he activated the overhead emergency lights and if he did not. See id. The trial court erred in denying the amended plea to the jurisdiction.
Under recent Supreme Court precedent, the emergency exception applies.
The emergency exception to section 101.021s waiver of the Citys governmental immunity applies unless the evidence raises a fact issue as to whether Officer Simmons acted “with conscious indifference or reckless disregard for the safety of others.” Tex. Civ. Prac. & Rem. Code § 101.055(2) (West, Westlaw through 2023 R.S.); City of San Antonio v. Maspero, 640 S.W.3d 523, 529–31 (Tex. 2022). The City argues that the en banc opinion in Gomez I, in which this court found a fact issue as to reckless disregard has been superseded by recent precedent from the Supreme Court of Texas. Therefore, the City asserts that the law-of-the-case doctrine does not apply and that because Gomez failed to submit evidence raising a fact issue as to the applicability of the emergency exception, the trial court erred in denying the Citys amended plea to the jurisdiction.
The majority incorrectly concludes that this court is bound by or may decline to reconsider the Gomez I courts holding that the evidence raised a fact issue as to whether Officer Simmons acted with reckless disregard for the safety of others. See Gomez, 587 S.W.3d at 902–03. Because this part of Gomez I conflicts with and has been superseded by the Supreme Court of Texas opinion in City of Houston v. Green, the law-of-the-case doctrine does not apply, and vertical stare decisis requires this court to conclude that the evidence does not raise a fact issue on this point and that the emergency exception applies. See Winfrey v. Rogers, 901 F.3d 483, 491 (5th Cir 2018) (stating that “the law-of-the-case doctrine does not apply when ․ controlling authority has since made a contrary decision of the law applicable to such cases”); City of Houston v. Green, No. 22-0295, —S.W.3d—,—, 2023 WL 4278246, at *1–3 (Tex. June 30, 2023) (holding that the evidence did not raise a fact issue as to whether a police officer acted with reckless disregard for the safety of others in a case with facts substantially similar to the facts in todays case); Mitschke v. Borromeo, 645 S.W.3d 251, 256 (Tex. 2022) (concluding that under the doctrine of horizontal stare decisis a court of appeals must follow a materially indistinguishable prior decision of the court of appeals unless a higher authority, such as a decision of the Supreme Court of Texas, has superseded the prior court of appeals decision); Wichman v. Kelsey-Seybold Medical Group, PLLC, No. 14-18-00641-CV, 2020 WL 4359734, at *4 (Tex. App.—Houston [14th Dist.] Jul. 30, 2020, no pet.) (stating that “in deciding [a civil appeal] we must follow the precedent of the Supreme Court of Texas”) (mem. op.); City of Dallas v. Jones, 331 S.W.3d 781, 785 (Tex. App.—Dallas 2010, pet. dismd) (concluding that a court of appeals is not bound by its prior opinion in the same case if there has been “a change in the controlling law” between the time of the first and second opinions).
When this court decided Gomez I no Supreme Court of Texas case had addressed this reckless disregard issue in a case involving facts similar to those in todays case, and thus this court did not rely on any such case. See Gomez, 587 S.W.3d at 902–03. In Gomez I, the Supreme Court of Texas denied the City of Houstons petition for review, but that action does not give any indication as to whether the high court thought that the evidence raised a fact issue as to whether Officer Simmons acted with conscious indifference or reckless disregard for the safety of others. See Loram Maintenance of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006) (stating that the denial of petition for review by the Supreme Court of Texas does not give any indication as to the high courts view regarding the merits of the issues decided by the courts of appeals).
More than three years after this court decided Gomez I, the Supreme Court of Texas held that the evidence did not raise a fact issue as to whether a police officer acted with reckless disregard for the safety of others in a case with facts strikingly similar to todays case. See Green, 2023 WL 4278246, at *1–3. There, Samuel Omesa, a City of Houston police officer, received a “priority two” service call regarding a suspect armed with a handgun. See id. at *1. Officer Omesa claimed that he activated his overhead lights and “intermittently” activated his siren while traveling northbound on Hillcroft Avenue at an average speed of 35 to 40 miles per hour. See id. Omesa testified that as he approached the intersection of Richmond and Hillcroft, he came to a complete stop before proceeding through a red light traveling 10 to 20 miles per hour. See id.
Omesa collided with a vehicle driven by Crystal Green. See id. Omesa stated that even though he forcefully applied his brakes, he was unable to avoid the collision. See id. Although Omesa was unable to remember if his siren was activated as he went through the intersection, he said he was certain that the emergency lights on his vehicle were activated. See id. Green testified that Omesa was “traveling at a high rate of speed” and that Omesas siren was not on. See id.
Green sued the City of Houston. See id. The trial court denied the Citys summary-judgment motion seeking dismissal based on the Citys governmental immunity and arguing that the emergency exception applies. See id. On appeal in this court Green argued that the Gomez I opinion was on point, and the City of Houston argued that Gomez I was distinguishable. See City of Houston v. Green, No. 14-20-00190-CV, 2022 WL 97334, at *9 (Tex. App.—Houston [14th Dist.] Jan. 11, 2022), revd, 2023 WL 4278246, at *1–3 (Tex. June 30, 2023). This court agreed with Green that Gomez I was on point, concluded that the evidence raised a fact issue as to whether Omesa was driving with reckless disregard for the safety of others, and found that the City did not conclusively prove Omesa acted in good faith. See id. at *6–9. The Supreme Court of Texas reversed this courts judgment, concluding that this court had erred in determining that the evidence raised a fact issue as to whether Omesa was driving with reckless disregard for the safety of others. See Green, 2023 WL 4278246, at *1–3.
In Green, the Supreme Court reiterated its conclusions in its recent decision in Maspero: reckless disregard involves more than a momentary lapse of judgment and requires a willful or wanton disregard for the safety of others, exhibiting “conscious indifference” while having “subjective awareness of an extreme risk.” Id. at *2; Maspero, 640 S.W.3d at 531. The Green court emphasized that establishing a failure to exercise due care does not establish a reckless disregard for the safety of others. See Green, 2023 WL 4278246, at *3. Despite the fact that there was a disputed fact question as to whether Omesa was traveling at high rate of speed and whether he had activated his siren, the Supreme Court held there was no evidence he acted with reckless disregard for the safety of others, and thus the emergency exception applied. See id. The Supreme Court reversed this court and rendered judgment dismissing Greens claims against the City based on governmental immunity. See id.
In Gomez I, this court reasoned that there was sufficient evidence to conclude that Officer Simmons acted recklessly because he looked down from the road as he approached the intersection, failed to operate his siren, did not apply his brakes in time to avoid a collision with Gomezs car, and there was a disputed fact question of whether he was using his emergency lights. See Gomez, 587 S.W.3d at 902–03. While these facts might be sufficient for a jury to conclude that Officer Simmons was simply negligent, they come nowhere close to the standard that the Supreme Court subsequently articulated in Maspero and Green, i.e., reckless disregard involves more than a momentary judgment lapse, requiring a willful or wanton disregard for the safety of others, and exhibition of conscious indifference while having subjective awareness of an extreme risk. See Green, 2023 WL 4278246, at *2; Maspero, 640 S.W.3d at 531. The part of Gomez I in which this court concluded there was a fact issue as to reckless disregard conflicts with and has been superseded by the recent precedent from the Supreme Court in Maspero and Green. See Green, 2023 WL 4278246, at *2; Maspero, 640 S.W.3d at 531.
The majority erroneously concludes that it may adhere to this part of Gomez I under the law-of-the-case doctrine. But vertical stare decisis trumps law of the case and horizontal stare decisis. See Winfrey, 901 F.3d at 491; Mitschke, 645 S.W.3d at 256; Crotts v. Cole, 480 S.W.3d 99, 103, n.3 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Jones, 331 S.W.3d at 785. If this courts opinion in a prior appeal in the same case conflicts with and has been superseded by a subsequent Supreme Court opinion, an exception to the law-of-the-case and horizontal-stare-decisis doctrines applies, and this court is duty-bound to apply the recent high court precedent under the doctrine of vertical stare decisis. See Winfrey, 901 F.3d at 491; Mitschke, 645 S.W.3d at 256; Wichman, 2020 WL 4359734, at *4; Crotts, 480 S.W.3d at103, n.3; Jones, 331 S.W.3d at 785. The majority errs in relying on the law-of-the-case doctrine as a justification for violating the doctrine of vertical stare decisis. See Winfrey, 901 F.3d at 491; Mitschke, 645 S.W.3d at 256; Wichman, 2020 WL 4359734, at *4; Crotts, 480 S.W.3d at103, n.3; Jones, 331 S.W.3d at 785. The majority should follow the recent precedent from the Supreme Court of Texas in Maspero and Green, determine that the evidence does not raise a fact issue as to reckless disregard, reverse the trial courts order denying the Citys amended plea to the jurisdiction, and render judgment dismissing all of Gomezs claims against the City for lack of subject-matter jurisdiction. Because the majority does not do so, I respectfully dissent.
Randy Wilson Justice