NUMBER CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG THE CITY OF PHARR, TEXAS,

Transcription

1 NUMBER CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG THE CITY OF PHARR, TEXAS, Appellant, v. DORA HERRERA, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF REYNALDO HERRERA, DECEASED, ERIC HERRERA, EFREN HERRERA, MICHAEL HERRERA, JESSICA HERRERA RODRIGUEZ, CELIA HERRERA, VANESSA HERRERA, VERONICA HERRERA RODRIGUEZ HERRERA, AND REY HERRERA, Appellees. On appeal from the 370th District Court of Hidalgo County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Benavides Memorandum Opinion by Chief Justice Valdez Appellant, City of Pharr (the City ), appeals from the trial court s denial of its plea to the jurisdiction. Appellees, Dora Herrera, Individually and as Representative of the

2 Estate of Reynaldo Herrera, deceased, Eric Herrera, Efren Herrera, Michael Herrera, Jessica Herrera Rodriguez, Celia Herrera, Vanessa Herrera, Veronica Herrera Rodriguez Herrera, and Rey Herrera, sued the City under the Texas Tort Claims Act for negligence in causing the death of Reynaldo Herrera. See TEX. CIV. PRAC. & REM. CODE ANN (1)(A) (West, Westlaw through 2015 R.S.). By two issues, the City contends that the trial court erred in denying its plea to the jurisdiction because appellee did not present a cause of action that overcomes the general rules of government immunity and because Officer Gonzalez would be entitled to official immunity for carrying out his law enforcement duties in good faith. We reverse and render. I. PERTINENT FACTS On May 26, 2010, the City s police officer, Emilio Gonzalez, attempted to conduct a traffic stop of a Ford Expedition for a violation of the Texas Transportation Code. The Expedition, which was driven by Rafael Carro Quintero, failed to stop, and Officer Gonzalez pursued the vehicle into the city of Alamo, Texas. Officers from the Hidalgo County Sheriff s Office and Department of Public Safety (DPS) joined the pursuit of the Expedition, which traveled at a high rate of speed. Sometime thereafter, Officer Gonzalez disengaged the pursuit at the intersection of Tower and Trenton Roads, but he did not advise the other agencies to disengage pursuit. While two officers with the Hidalgo County Sheriff s Office were pursuing the Expedition on a dirt road, the Expedition hit Reynaldo Herrera s vehicle. Herrera passed away as a result of his injuries. Appellees filed suit against the City for initiating the chase. The trial court denied the City s plea to the jurisdiction. This appeal followed. 2

3 II. STANDARD OF REVIEW AND APPLICABLE LAW We review a plea to the jurisdiction under a de novo standard of review. Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex. 2007). A plea to the jurisdiction seeks to dismiss a case for want of jurisdiction. Tex. Dep t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, (Tex. 2004). A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit. The claims may form the context in which a dilatory plea is raised, but the plea should be decided without delving into the merits of the case. The purpose of a dilatory plea is not to force the plaintiffs to preview their case on the merits but to establish a reason why the merits of the plaintiffs claims should never be reached. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (internal citations omitted). III. IMMUNITY Local governmental entities have absolute immunity from suit unless immunity has been expressly waived by the Legislature. Miranda, 133 S.W.3d at 224. Immunity deprives a trial court of subject matter jurisdiction. Id. The TTCA provides a limited waiver of sovereign immunity in certain situations. See generally TEX. CIV. PRAC. & REM. CODE ANN (1)(A) (West, Westlaw through 2015 R.S.). The TTCA waives immunity, and a governmental unit is liable for a death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if, the death arose from the operation or use of a motor-driven vehicle and the employee would be personally liable to the claimant according to Texas law. Id.; City of Dall. v. Hillis, 308 S.W.3d 526, 532 (Tex. App. Dallas 2010, pet. denied). 3

4 IV. ANALYSIS By its first issue, the City contends that the claimed injuries did not arise from the officer s use of his patrol car. Specifically, the City argues that no causal nexus exists between Officer Gonzalez s pursuit and the accident. For waiver of immunity, the vehicle s use must have actually caused the injury. Dall. Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003) (internal quotations omitted). Thus, as with the condition or use of property, the operation or use of a motor vehicle does not cause injury if it does no more than furnish the condition that makes the injury possible. Id. In addition, a government employee must have been actively operating the vehicle at the time of the incident. Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 927 (Tex. 2015). The Texas Supreme Court has defined arises from as a nexus between the operation or use of the motor-driven vehicle... and a plaintiff s injuries. Id. (quoting Dall. Area Rapid Transit, 104 S.W.3d at 543). Put another way, the [vehicle] s use must have actually caused the injury. City of Sugarland v. Ballard, 174 S.W.3d 259, 266 (Tex. App. Houston [1st Dist.] 2005, no pet.) (quoting Dall. Area Rapid Transit, 104 S.W.3dat 543). Appellees relied on the theory that Officer Gonzalez s initiation of the chase caused the accident. They argued in their response to the City s plea to the jurisdiction that although [Officer Gonzalez] may not have been... pursuing [Quintero] at the time [of the accident] and may not have made contact with Quintero s vehicle, to institute the chase is a cause in fact and meets the proximate cause standard. Appellees stated that, at the time of the accident, after Officer Gonzalez interrupted [his] pursuit, a DPS officer pursued Quintero. Appellees do not disagree that Officer Gonzalez was not present when 4

5 the accident occurred and had ended his pursuit. Appellees expert stated that Officer Gonzalez decided to chase and got the momentum going and that [o]nce in motion, even after a long delayed disengagement from the pursuit, the causation has been established. In other words, appellees and their expert argued that Officer Gonzalez s initiation of the chase caused the accident even though Officer Gonzalez had disengaged his pursuit and was not present when the accident occurred. Appellees cited their expert s opinion stating that: (1) Officer Gonzalez did not consider public safety when going through stop signs (such as Ninth Street) ; (2) Officer Gonzalez travel[ed] too fast in residential neighborhoods ; (3) Cars were being run off the road ; (4) Officer Gonzalez evidenced a lack of good faith for initiating, engaging and continuing the pursuit based on weak, legally faulty, or non-existent justification for the pursuit ; (5) Officer Gonzalez came too close to other police cars, innocent civilian cars and the suspect vehicle especially in intersections and no passing zones. However, even if all of the above-stated allegations are true, there is no evidence that any of these actions were the actual cause of the accident in this case. And the undisputed facts that the accident occurred after Officer Gonzalez ended his pursuit of Quintero and that Quintero continued to flee from police undercut appellee s claim that the resulting injuries were caused by Officer Gonzalez s use of his motor vehicle. City of Dall., 308 S.W.3d at 534 ( [A] person s deliberate decision to flee from police can undercut the claim that resulting injuries are caused by the police. ); see City of Sugarland, 174 S.W.3d at 266. The actual cause of the collision was Quintero s decision to flee from police officers. See City of Dall., 308 S.W.3d at 532 (explaining that the motorist s decision, while fleeing from an officer, to exit to eastbound Interstate 635 at a 5

6 reckless rate of speed was the actual cause of the accident and stating that [a]t most the police officer s use of his car only furnished the condition that made [the] accident possible ). Officer Gonzales had ended his pursuit and was not present when the accident occurred. The evidence in this case does not support a casual nexus between Officer Gonzalez s use of his vehicle and the plaintiff s injuries. See Ryder Integrated Logistics, 453 S.W.3d at 927. Instead, the evidence shows that Officer Gonzalez was not present when the accident occurred and had stopped pursuing Quintero; and, we conclude that his action of initiating the chase was too physically and temporally separated from Quintero s conduct to constitute a cause of the alleged injuries in this case. See City of Dall., 308 S.W.3d at 532 ( When an alleged cause is geographically, temporally, or causally attenuated from the alleged effect, that attenuation will tend to show that the alleged cause did no more than furnish the condition that made the effect possible. ). As such, appellees evidence does not demonstrate that Officer Gonzalez s negligent use of his motor vehicle caused the accident. Id.; see also Northcutt v. City of Hearne, No CV, 2015 WL , at *6 (Tex. App. Waco July 30, 2015, pet. denied) (mem. op.) (concluding that the police officer s use of his motor vehicle merely furnished the condition that made the accident possible). Under these circumstances, we cannot conclude that even a question of fact existed regarding whether Officer Gonzalez s use of his vehicle actually caused the accident. See City of Dall., 308 S.W.3d at 532 (refusing to find waiver of immunity based on negligent use of a motor vehicle when police officers initiated and continued a highspeed chase in contravention of a no-chase policy and stating that [t]he causal nexus is 6

7 not satisfied by the mere involvement of a vehicle, nor by an operation or use that does no more than furnish the condition that makes the injury possible ) (quoting Dall. Area Rapid Transit, 104 S.W.3d at 543). Thus, because appellees evidence does not raise a question of fact regarding causation, and as a matter of law, the accident did not arise from Officer Gonzalez s use of his vehicle, the trial court erred in denying the City s plea to the jurisdiction. See id. (explaining there was no waiver of immunity because [the officer] did not hit [the fleeing motorist s] motorcycle with his patrol car, the officer did not physically force [the fleeing motorist] off the road or into another vehicle or object, and concluding that [a]t the time of the accident, [the officer s] operation of his vehicle was so physically and temporally separated from [the fleeing motorist s] motorcycle that, as a matter of law, [the officer s] operation of his vehicle did not actually cause [the] accident ). We sustain the City s first issue. IV. CONCLUSION We reverse the trial court s judgment, and we render judgment dismissing the case for lack of subject-matter jurisdiction. 1 Delivered and filed the 9th day of March /s/ Rogelio Valdez ROGELIO VALDEZ Chief Justice 1 Because we have sustained the City s first issue, we need not address its other issue, as it is not dispositive of this appeal. See TEX. R. APP. P