BRENDA ANN TRAVIS, INDIVIDUALLY FROM A DISTRICT COURT AND AS NEXT FRIEND OF JASON WAYNE TRAVIS, AMANDA MICHELLE TRAVIS, AND ANGELA GWYNN TRAVIS, Her Minor Children, TONY LOZANO AND CONSUELO LOZANO, INDIVIDUALLY and on Behalf of the ESTATE OF LEONEL LOZANO, DECEASED, APPELLANTS, v. THE CITY OF MESQUITE, TEXAS, SGT. SAM McDONALD, OFFICER JIM DUCKWORTH, SGT. WESTAL ASHBY, AND OFFICER JOHNNY McCLURE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-87-00923-CV
 
BRENDA ANN TRAVIS, INDIVIDUALLY                FROM A DISTRICT COURT
AND AS NEXT FRIEND OF JASON WAYNE
TRAVIS, AMANDA MICHELLE TRAVIS,
AND ANGELA GWYNN TRAVIS, Her Minor
Children, TONY LOZANO AND CONSUELO
LOZANO, INDIVIDUALLY and on Behalf
of the ESTATE OF LEONEL LOZANO,
DECEASED,
 
        APPELLANTS,
 
v.
 
THE CITY OF MESQUITE, TEXAS,
SGT. SAM McDONALD, OFFICER JIM
DUCKWORTH, SGT. WESTAL ASHBY,
AND OFFICER JOHNNY McCLURE,                 OF DALLAS COUNTY, TEXAS
 
        APPELLEES.
 
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES HECHT AND THOMAS
DISSENTING OPINION BY JUSTICE THOMAS
JANUARY 9, 1989
        "More than 500 Americans die and over 1,000 sustain major injuries each year as a result of rapid police pursuit of lawbreakers, most of whom are guilty of only minor traffic offenses...one pursuit in five leads to a traffic fatality (and) in only one percent of the cases was someone in the car wanted for violent crimes." FN:1 Despite the prevalence and gravity of this situation, the majority wishes to insulate the police from liability to the injured innocents. I cannot agree that the injuries suffered by Brenda Travis and her children, and the death of Leonel Lozano, were not causally related to the police officers' conduct. Accordingly, I dissent.
        The majority correctly states that a plaintiff, in order to prevail upon a negligence claim, must prove three essential elements: 1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damage proximately resulting from such a breach. See Abalos v. Oil Development Co., 544 S.W.2d 627, 631 (Tex. 1976). Although the majority only addresses the third element of this action, I will briefly address all the elements.
        I note initially that the majority does not rely upon the holding in Dent v. City of Dallas, 729 S.W.2d 114 (Tex. App.--Dallas 1986, writ ref'd n.r.e.), that a chasing police officer owes no duty to protect individuals from harm caused by a fleeing suspect. Id. at 116. Perhaps the majority is as troubled by this holding as I am. Certainly, the legislature cannot agree with the Dent court. The statutes pertaining to emergency vehicles involved in a chase provide as follows:
    (a) Upon the immediate approach of an authorized emergency vehicle making use of audible and visual signals meeting the requirements of Section 124 of this Act, or of a police vehicle properly and lawfully making use of an audible signal only:
 
    1. The driver of every other vehicle shall yield the right-of-way...and remain in such position until the authorized emergency vehicle has passed.
 
* * *
    (b) This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.
 
 
TEX. REV. CIV. STAT. ANN. art. 6701d, § 75 (Vernon 1977) (emphasis added). The legislature has also provided:
 
 
    (b) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law..., may exercise the privileges set forth in this section, but subject to the conditions herein stated.
 
    (c) The driver of an authorized emergency vehicle may:
 
    1. Park or stand, irrespective of the provisions of this chapter;
 
    2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
 
    3. Exceed the maximum speed limits so long as he does not endanger life or property;
 
    4. Disregard regulations governing direction of movement or turning in specified directions.
 
    (d) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use, at the discretion of the driver of the vehicle, in accordance with policies of the Department or the local government, of audible or visual signals meeting the requirements of Section 124 of this Act....
    (e) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.
 
 
TEX. REV. CIV. STAT. ANN. art. 6701d, § 24 (Vernon 1977 & Vernon Supp. 1989) (emphasis added). Thus, I conclude that the drivers of emergency vehicles owe a duty to exercise reasonable care to all who share the roadway with them. See Eubanks v. Wood, 304 S.W.2d 567 (Tex. Civ. App.--Eastland 1957, writ ref'd n.r.e.).
        Further, I note that fact issues exist as to the breach of the duty of reasonable care. Issues such as reasonableness are inherently issues for the jury, often precluding summary judgment. Hunsucker v. Omega Industries, 659 S.W.2d 692, 698 (Tex. App.--Dallas 1983, no writ). There are also fact issues as to whether the police officers were operating their sirens as required before they were entitled to take the liberties that emergency vehicles may take. The existence of these fact issues precludes a summary judgment on the issue of breach of duty. Arnold v. National County Mutual Fire Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987). Thus, I conclude that the summary judgment cannot be sustained on the basis that either of the first two elements of a negligence action has been established conclusively against the plaintiffs.
        The majority upholds the summary judgment in favor of the defendants on the third element: proximate cause. In so doing, this Court rewrites decades of Texas tort law. It is well settled that the two elements of proximate cause are cause in fact and foreseeability. City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex. 1987). Cause in fact means that the omission or act involved was a substantial factor in bringing about the injury and without which no harm would have occurred. Pike, 727 S.W.2d at 517. Foreseeability requires that the actor, as a person of ordinary intelligence, would have anticipated the danger that his negligent act created for others. Pike, 727 S.W.2d at 517; Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549-50 (Tex. 1985). Foreseeability does not require that a person anticipate the precise manner in which injury will occur once a negligent situation that he has created exists. El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987); Edwards Transfer Co. v. Brown, 740 S.W.2d 47, 51 (Tex. App.--Dallas 1987), aff'd, 32 Tex. Sup. Ct. J. 108 (Dec. 7, 1988).
        There can be more than one proximate cause of an injury. All persons who contribute to an injury are liable; the negligence of one does not excuse the negligence of another. Poole, 732 S.W.2d at 313; Strakos v. Gehring, 360 S.W.2d 787, 794 (Tex. 1962). If the effects of the actor's negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person's innocent, tortious or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability. McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442, 447 (1941). So long as the intervening action is foreseeable, it does not cut off the continuing negligence and consequent liability of the initial actor. Nixon, 690 S.W.2d at 550. "Proximate cause" is not necessarily the immediate or nearest cause. Galveston-Houston Breweries v. Naylor, 249 S.W.2d 262, 268 (Tex. 1952).
        The majority holds that, as a matter of law, the police officers were not a proximate cause of the injuries. It appears that the majority would consider the officers the proximate cause of the injury only if the officers were "involved" in the accident, i.e., that the officers' vehicles physically contacted the injured parties' car. I cannot accept such a narrow zone of risk for negligent conduct. Under the majority's view, the bartender who served the intoxicated driver in Poole would only be liable if he were at the scene of the consequent accident; and the property manager who failed to provide locks for his doors in Nixon would only be legally negligent if he were "involved" in the rape in the vacant apartment. The supreme court did not reach such holdings in those cases; rather, the court held that the defendants' negligence set in motion events that led to the eventual injury of the plaintiffs. Thus, despite intervening action by third parties, the defendants proximately caused the injuries.
        I conclude that it is illogical and inconsistent with existing Texas law to deny liability as a matter of law on the sole basis that the pursued vehicle, and not the police pursuer, was physically involved in the collision. In fact, as previously indicated, the legislature has apparently increased the applicable standard of care for drivers of emergency vehicles by providing that they shall operate their vehicles with "due regard for the safety of all persons using the highway." TEX. REV. CIV. STAT. ANN. art. 6701d, § 75(b) (Vernon 1977).
        Further, the majority reaches unsubstantiated conclusions regarding the purpose of a police siren. I do not take issue with the majority's conclusion, as far as it goes. It certainly seems logical that the police should sound a siren to clear the roadway for the approach of emergency vehicles. I cannot agree, however, that this is the only purpose for sounding a siren. It is equally logical that the police should sound a siren to signal the approach of pursued and pursuing vehicles traveling at excessive speeds or in the wrong direction on a one-way street.
        The majority fails to address the well-settled rule that the requirements of proximate cause do not require a person to anticipate the precise manner in which injury will occur once his negligence creates the danger. Poole, 732 S.W.2d at 313; Brown, 740 S.W.2d at 51. The majority would surely agree, given their avowed view of the reasons for sounding a siren, that the failure to sound the siren would prevent a driver from getting out of the way of approaching emergency vehicles; thus, there would be negligence, including proximate cause, if the emergency vehicle struck an approaching car. Does it make the emergency driver less negligent because his failure to sound a siren prevented a car from getting out of the way of a vehicle he was pursuing? A collision, though perhaps not the precise manner of the collision, would be clearly foreseeable.
        I would hold that the negligent and criminal conduct of the fleeing driver does not cut off the liability of the pursuing officers if that pursuit breaches the emergency vehicle operator's duty of care. I do not ask the majority to make the police insurers for the conduct of the suspects they pursue; however, when the officers are themselves negligent, and able to foresee the negligence of the suspect, I would not create exceptions to years of established law to insulate them from liability for the consequences of their negligence. The summary judgment should be reversed, and the Travises and Lozanos afforded an opportunity to present their case to a jury.
                                                          LINDA THOMAS
                                                          JUSTICE
 
 
PUBLISH
TEX. R. APP. P. 90 .
 
87-00923.DF
 
 
FN:1 Kuzmics v. Santiago, 389 A.2d 587, 590 (Pa. Super. 1978)(citing Survey by Physicians for Automotive Safety reported to American Medical Association annual convention, June, 1968, quoted in MEYER, LAW OF VEHICLE NEGLIGENCE IN PENNSYLVANIA 4.32 (1970)).
File Date[01-02-89]
File Name[870923]