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Rivas v. City of Houston12/9/1999
This appeal stems from an order granting a motion for judgment notwithstanding the verdict based onofficialimmunity. Appellants, Evenor Rivas and Continental Casualty Insurance Co., present two issues for our review. First, whether the trial court erred in granting the motion because the city employee was not performing a discretionary function and second, whether the trial court erred in granting the motion because there was no evidence the employee was acting in good faith. The City of Houston and Joel Calfee raise two conditional cross-points. We affirm the trial court's judgment.
Background The Houston Fire Department dispatched paramedics Joel Calfee and Randy Otswald by ambulance to attend to a patient who had fallen on a stick. Calfee and Otswald decided to transport the patient to Ben Taub Hospital as a non-emergency conveyance. En route, the patient became combative, loosened his restraints, and fell off the gurney. Calfee and Otswald had to stop the ambulance on several occasions in order to restrain him. After stopping two or three times, Calfee and Otswald decided to continue the conveyance as a "Code II," or an emergency conveyance. Calfee, who was driving, then proceeded through a red light and collided with a truck driven by Rivas. While there was conflicting testimony at trial regarding whether the ambulance's emergency lights were on at the time it entered the intersection, there was no evidence that the sirens were in operation as required by state law, local ordinances and City of Houston policy. Rivas filed suit against Calfee and the City of Houston, contending Calfee was negligent and negligent per se and that the City of Houston was vicariously liable. The jury found for Rivas, but the trial court entered a judgment notwithstanding the verdict in favor of Calfee and the City of Houston.
Standard of Review
We review a trial court's order granting a judgment notwithstanding the verdict ("j.n.o.v.") by the same standard as a no evidence point of error, as a trial court may render a j.n.o.v. if there is no evidence to support one or more necessary findings. See Brown v. Bank of Galveston, 963 S.W.2d 511, 513 (Tex. 1998); Harris County v. Felts, 881 S.W.2d 866, 872 (Tex. App.--Houston [14 th Dist.] 1994), aff'd, 915 S.W.2d 482 (Tex. 1996). We consider only the evidence and reasonable inferences supporting the jury's findings in the light most favorable to the verdict. See Brown, 963 S.W.2d at 513. We disregard all evidence and inferences to the contrary. See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). We must uphold the findings if they are supported by more than a scintilla of evidence. See id. In other words, a j.n.o.v. is improperly granted if any evidence of probative force supports a contested issue. See id.
Official Immunity Rivas contends the trial court erred in granting the j.n.o.v. based on official immunity because Calfee was not acting in good faith and violated a non-discretionary requirement when he proceeded against a red light without his siren in operation.
Government employees are, under certain circumstances, entitled to official, or qualified, immunity. Official immunity is an affirmative defense which shields public employees acting within the scope of their authority from personal liability in a suit arising from employees' good faith performance of discretionary duties. See Wadewitz v. Montgomery, 951 S.W.2d 464, 465-66 (Tex. 1997). If a government employee who committed allegedly wrongful acts is entitled to officialimmunity, the government branch for which he works is entitled to sovereign immunity. See De Witt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995); City of San Antonio v. Duncan, 936
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