City of San Antonio v. Dolores Ytuarte--Appeal from 408th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00211-CV

CITY OF SAN ANTONIO,

Appellant

v.

Dolores YTUARTE,

Appellee

From the 285th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CI-04405

Honorable Michael P. Peden, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sandee Bryan Marion, Justice

Phylis Speedlin, Justice

Delivered and Filed: September 14, 2005

AFFIRMED

The City of San Antonio appeals an interlocutory order denying both the City s plea to the jurisdiction based on sovereign immunity and its motion for summary judgment based on official immunity. We affirm the trial court s judgment.

Background

Pablo Leza committed the offense of aggravated robbery with a deadly weapon and fled the scene in a stolen Suburban. Shortly thereafter, Officers Torres and Camplen spotted the stolen Suburban from a police helicopter. Several police officers, including Officer Ramos and Sergeant Kemmy, began following the stolen vehicle with activated lights and sirens. According to Ramos, Leza was traveling at speeds up to seventy miles per hour on city streets where posted speed limits were thirty miles per hour. The dispatch tape indicates that the officers were driving about sixty miles per hour. Sergeant Kemmy gave officers the directive to back off. Several officers testified that at that time they slowed and deactivated their lights and sirens.

Leza entered a housing area, and the officers in the helicopter reported that the Suburban appeared to be stopping. Officer Ramos exited his vehicle in an attempt to apprehend Leza. Leza, however, rammed the Suburban into Officer Ramos s squad car and fled the scene. Officer Avalos again began pursuing Leza with his lights and sirens activated. Officers Cucinotta and Belcher were also involved in the pursuit. Officer Avalos testified that the officers were again directed to back off. Officers testified that they slowed, deactivated their lights and sirens, and allowed an increase in the distance between them and the Suburban as it traveled down side streets. Officer Torres testified that from the helicopter he could see that the officers were two to three blocks behind Leza.

Officer Belcher testified that Leza traveled out of her sight, turning onto Frio City Road and then onto Pendleton. When Leza turned onto Pendleton, he cut in front of off-duty Bexar County Sheriff s Deputy Paul Perez before losing control and crashing into another vehicle, which struck Dolores Ytuarte, pinning her to a fence. At that time, Leza attempted to flee on foot. Perez ran after Leza, drew his weapon, and ordered Leza to lie face down on the ground before the first officer arrived. Perez indicated that he did not hear sirens and could not recall whether the officers had their lights activated when they arrived at the scene of the accident.

Officer Belcher, the first officer on the scene, testified that she activated her lights and sirens when she heard Leza had wrecked. Officer Avalos, the second officer on the scene, also testified that he activated his lights and sirens when he heard Leza had wrecked. However, Officer Avalos also testified that he did not recall Officer Belcher s light and sirens being activated when he arrived at the scene.

Carmen Cedillo was standing at the gate to her home across the street when Leza lost control of the Suburban. Cedillo gave a statement to police that she saw the police cars arrive on Pendleton before Leza crashed. Cedillo added that it looked like the officers were trying to catch up with Leza. In a later affidavit, Cedillo reiterated that officers were on Pendleton before Leza crashed and stated that both Leza and the officers were driving really fast. Cedillo also testified that the first sirens she heard were when the ambulance arrived.

Ytuarte brought suit against the City. The City filed a plea to the jurisdiction and moved for summary judgment. Both the plea and the motion were denied.

Pursuit

The City contends its sovereign immunity was not waived in this case because the officers were no longer in pursuit of Leza at the time he crashed the Suburban into the vehicle that injured Ytuarte. Because the officers were not in pursuit, the City argues that there was no use of a motor vehicle by a city employee that proximately caused the accident and injury to Ytuarte.

We review a trial court s ruling on a plea to the jurisdiction under a de novo standard of review. Tex. Natural Res. Conserv. Comm n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). When reviewing a ruling on a plea to the jurisdiction, we accept the allegations in the petition as true and construe them in favor of the pleader. Bexar County v. Lopez, 94 S.W.3d 711, 713 (Tex. App. San Antonio 2002, no pet.). In addition to the pleadings, we may also consider relevant evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). If the evidence creates a question of fact regarding the jurisdictional issue, the plea to the jurisdiction cannot be granted, and the fact issue is left to be resolved by the fact finder. Tex. Dep t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004).

In this case, the evidence creates a question of fact concerning whether officers were in pursuit of Leza at the time of the accident. Cedillo testified that she saw the police cars on Pendleton right before the guy crashed. The City urges that Cedillo s testimony should not be indulged in favor of Ytuarte because Cedillo contradicted herself on when the police cars arrived on Pendleton. This characterization of Cedillo s statements is misleading. In both her statement to police and in her affidavit, Cedillo states that the police cars arrived on Pendleton before the crash.

We likewise reject the City s suggestion that Cedillo is not a competent witness because of her young age. Even if Cedillo s statements were conflicting, inconsistent responses from a child do not make the child incompetent to testify as witness, rather they speak to the child s credibility. See In re. A.W., 147 S.W.3d 632, 635 (Tex. App. San Antonio 2004, no pet.)

The City asserts that the testimony of Perez, which is consistent with the testimony of the officers, should be accepted as reasonable. Perez s testimony may be reasonable; however, given the conflict between the testimony of Perez and Cedillo, the evidence raises a question of fact for a jury to resolve.

Because a question of fact exists with regard to whether the officers were in pursuit of Leza when he crashed, the trial court did not err in denying the City s plea to the jurisdiction. // The City s first issue is overruled.

Official Immunity

The City contends the trial court erred in denying its motion for summary judgment based on the official immunity of the officers involved in the pursuit. Because official immunity is an affirmative defense, the City must prove each element of official immunity as a matter of law to be entitled to summary judgment. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000).

Official immunity protects government employees from personal liability when employees perform discretionary duties within the scope of their authority and are acting in good faith. Id; see also City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Whether the officers were performing discretionary duties within the scope of their authority is not in dispute in this case. Therefore, we address only whether the officers were acting in good faith.

To establish good faith, the City must show that a reasonably prudent officer in the same or similar situation could have believed that the need for officers to respond outweighs the risks associated with the officers actions. Wadewitz v. Montgomery, 951 S.W.2d 464, 466-67 (Tex. 1997). Need involves the urgency of the circumstances to which officers are responding and also encompasses the seriousness of the situation, whether the presence of officers is necessary to prevent injury or loss of life or to apprehend a suspect, and whether any alternative courses of actions are available. Id. at 467. Risk refers to concerns for public safety and includes the nature and severity of harm officers actions could cause, the likelihood of that harm, and whether that risk would be clear to a reasonably prudent officer. Id. When determining whether the officers acted in good faith, we apply a standard of objective reasonableness without regard to the officers subjective states of mind. Id. at 466.

Good faith can be established as a matter of law when officers recitations of facts are otherwise supported by the evidence. Kistner v. Pfannstiel, 107 S.W.3d 7, 11 (Tex. App. San Antonio 2002, no pet.) Expert testimony regarding the element of good faith must reference each aspect of the need-risk assessment. See Wadewitz, 951 S.W.2d at 466. To establish good faith as a matter of law when material facts supporting good faith are in dispute, the need-risk assessment must be based on the facts in the light most favorable to the non-movant, because those facts are assumed true. Kistner, 107 S.W.3d at 11-12.

The City relies on the testimony of the officers and the affidavit of an expert witness, Commander Albert Rodriguez, to establish good faith. Rodriguez characterizes the series of events as consisting of two pursuits. With regard to the first pursuit, Rodriguez states that the need to apprehend Leza was the highest need possible because Leza was involved in an aggravated robbery and attempted murder; therefore, Leza presented a substantial risk of serious bodily injury or death to the public if the attempt to arrest him was delayed. Rodriguez states that the first pursuit was suspended when officers slowed down and deactivated their emergency lights and sirens after the first back off order.

Rodriguez states that the second pursuit began when Leza rammed Officer Ramos s patrol car. Rodriguez indicates that during the second pursuit the need to apprehend Leza was even greater because Leza had at that time also committed aggravated assault. Rodriguez concludes that officers were no longer pursuing Leza at the time of the crash because officers had deactivated their lights and sirens following the second order to back off.

According to Rodriguez, the order to back off was understood to mean the same thing by all officers involved. However, Officers Belcher and Avalos testified that back off means to create distance between the officer and the suspect, while Officer Ramos stated that the order means to slow down and allow the helicopter to continue the pursuit. Officer Cucinotta stated back off means to terminate the pursuit. Officer Belcher testified that she never abandoned the pursuit, but that after the back off command, she began following rather than pursuing Leza.

Discrepancies exist between Rodriguez s assessment of the risk factors, which he categorizes as minimal, and the statements of the officers involved in the pursuit. Rodriguez states that during each pursuit, the traffic was light to moderate, a description which echoes Sergeant Kemmy s assessment of traffic. Officer Cucinotta testified only that there was traffic in the area, while the dispatch transcript indicates there was a lot of traffic and officers were directed to use caution. Rodriguez also indicates that risk was minimal because there was no pedestrian traffic during the pursuits and adds that officers were conscious of their actions with due regard for public safety. Officer Avalos, however, testified that he was unaware of what the speed limit was, how fast he was traveling, or whether any people were on the sidewalks of the residential area. Members of the Ytuarte family, who were outside their home, were pedestrians, as was Cedillo.

Despite the requisite that the evidence be viewed in the light most favorable to Ytuarte, Rodriguez completely discounts the testimony of Cedillo. Rodriguez states that [t]he allegation that one of the patrol cars was immediately following Leza is based on speculation and the recall of a twelve year old witness. Rodriguez further states that Cedillo s recall of the incident is questionable when compared to the recall of Perez, a trained observer. Perez, however, testified that he could not be certain that the officers did not have their lights activated when they arrived at Pendleton. Further, Officers Belcher and Avalos provided conflicting testimony regarding the use of lights and sirens upon their arrival at the accident scene. Finally, ignoring the statement of Cedillo that she saw the police cars get on Pendleton right before the guy crashed, Rodriguez concludes that there is undisputable evidence that there were no [officers] immediately behind Leza at the time he crashed.

When material facts underlying a claim of good faith are contradicted, a conclusive finding of good faith is precluded and summary judgment is improper. Wadewitz, 951 S.W.2d at 466. In its summary judgment proof, the City failed to address disputed facts in a light most favorable to Ytuarte. Because the City did not conclusively establish good faith as a matter of law, the trial court did not err in denying the City s motion for summary judgment. See Clark, 38 S.W.3d at 580, 588. Accordingly, the City s second issue is overruled.

Conclusion

The judgment of the trial court is affirmed.

Catherine Stone, Justice