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Martinez v. City of Laredo8/22/2001
OPINION ON APPELLEE'S MOTION FOR REHEARING
APPELLEE'S MOTION FOR REHEARING DENIED; REVERSED AND REMANDED
Appellee has filed a motion for rehearing. We deny the motion, but withdraw our opinion and judgment of June 13, 2001 and issue this in its place to clarify our opinion. This is a sovereign immunity case arising from a traffic accident between a City of Laredo fire truck and a pickup truck driven by appellant Javier Martinez. Martinez sued the city and the fire truck driver, Faustino Cordova, for negligence and gross negligence under the Texas Tort Claims Act. On appeal, Martinez contends the trial court erred in (1) granting the city and Cordova's partial plea to the jurisdiction and dismissing several of his claims, and (2) rendering summary judgment for the city and Cordova on the remaining claims. We sustain both issues presented and reverse the trial court's judgment.
Background
Among other city emergency employees, fire truck driver Faustino Cordova was dispatched to a medical emergency in Laredo, Texas. As Cordova drove through the intersection of Monterrey and Frost streets on his way to the scene, he collided with the pickup truck Martinez was driving. Martinez was badly injured and his truck sustained serious damage. Cordova testified in deposition to the following:
ù he was driving north on Monterrey with the fire truck's lights flashing and its siren on;
ù at the intersection of Monterrey and Frost there is a stop sign; he came to a complete stop;
ù he could see Martinez traveling east on Frost, about a block away;
ù he pulled into the intersection at approximately three miles per hour;
ù as he was few feet into the intersection, he saw Martinez coming "real fast;"
ù he turned his truck to the right to avoid a collision but was unable to avoid it;
ù Martinez's truck broadsided the fire truck, hitting its left front tire and bouncing off.
Martinez's version of the events was very different. He testified in deposition:
ù he was driving east on Frost at approximately 25 miles per hour;
ù he was unaware of the fire truck until the moment of the accident;
ù just before the impact, he heard a horn blare;
ù the fire truck hit him broadside and knocked his truck several yards across the intersection;
ù after the collision, the fire truck's lights were not flashing and its siren was not on;
ù Cordova's view of Frost from Monterrey was visually obscured;
ù Cordova did not stop at the stop sign;
ù Cordova was traveling "at least" 45 miles per hour.
In addition to deposition testimony, the record includes testimony from a witness who said the fire truck had its lights and siren on, and that Monterrey has a stop sign at the corner but Frost does not. The police officer called to the scene cited Cordova for running the stop sign, but the offense report contains no information regarding the relative speed of the vehicles. Photographs taken just after the accident show virtually no damage to the fire truck. The nose of the fire truck appears to be embedded in the passenger side of the pick up, which is smashed in. There appears to be very little damage to the front of the pickup.
The trial court struck Martinez's fifth amended petition, thus we examine the fourth amended petition to determine the live pleadings. Martinez alleged the city was negligent in (1) not properly training Cordova to safely operate the truck; (2) not providing city 911 dispatchers, police officers, EMS drivers, and firefighters a
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