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Hanks v. City of San Antonio12/22/1999
Opinion by:Tom Rickhoff, Justice
Delivered and Filed:December 22, 1999
REVERSED AND REMANDED
This suit arises out of a deadly automobile collision involving an on-duty police officer responding to an emergency call. The appellants, representatives of the estates of Dan Medina and Susie Medina, brought a wrongful death and survival cause of action against the City of San Antonio and San Antonio police officer Galdino M. Villanueva, Jr. (collectively appellees). The trial court granted appellees' motion for summary judgment on official immunity. Appellants contend the summary judgment was improperly granted. Because an underlying fact issue exists, we must reverse the summary judgment and remand the case for further proceedings.
Background
Before midnight on May 11, 1996, Officers Villanueva, McCann, McBlain, Westmoreland, and Reeder of the San Antonio Police Department were at the Diamond Shamrock Service Station on Zarzamora. Officer Villanueva heard dispatch give a code-three emergency call, "2111 West Houston, Officer in trouble. Clearing all but Central." Officer Villanueva notified the dispatcher that he was en route to the location of the reported incident. Appellees contend he activated his patrol car's emergency lights and sirens seconds after leaving the service station. However, appellants offer the deposition excerpt from a witness who heard no sirens and saw no lights on Villanueva's vehicle prior to the accident.
Officer McCann was the first to enter Zarzamora Street, with Officer Villanueva being the second unit, Officer McBlain the third and Officer Reeder the fourth. All four vehicles were proceeding north on Zarzamora in response to the "officer in trouble" call. Zarzamora is a four lane, two way street without a turning lane. Ceralvo is a two lane street with no center dividing line. The speed limit on both streets is thirty miles per hour. Santos Flores was driving a 1994, 4 door Dodge passenger car in an easterly direction on Ceralvo. He had three passengers in the car, Martha Flores, Dan Medina, and Susie Medina.
Officer McCann drove through the Zarzamora/Ceralvo intersection first, followed by Officer Villanueva's vehicle. Officer Villanueva's vehicle collided with the right side of the Flores vehicle. There is conflicting evidence as to whether Officer Villanueva or Flores had a green light. Martha Flores, Dan Medina, and Susie Medina were killed in the accident.
Maria Dolores Hanks, Felix Medina, Jesse S. Medina, Juanita Victoria Luna, Phillip Lopez and Tony H. Lopez filed suit individually and on behalf of the estates of Dan Medina and Susie Medina against the City of San Antonio and Galdino M. Villanueva, Jr. Villanueva and the City of San Antonio moved for summary judgment based on official immunity from both suit and liability. The trial court granted both motions. Appellants now appeal the trial court's order granting summary judgment.
Standard of Review
The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex. 1985). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the non-movant; every reasonable inference from the evidence will be indulged in favor of the non-movant, and any doubts will be resolved in his favor. Nixon, 690 S.W.2d at 549.
A defendant may show entitlement to summary judgment by conclusively proving all elements of an affirmative defen
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