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City of Amarillo v. Martin11/27/1995
NOVEMBER 27, 1995
The City of Amarillo (the City), appeals from a judgment rendered in favor of Erica Shae Martin after a bench trial. The trial court found the City liable for damages sustained by Martin as the result of a collision between Martin's vehicle and a fire truck operated by the City during an emergency. We affirm.
The record shows that on January 25, 1992, Amarillo firemen were called to an emergency. While responding to the emergency, they entered an intersection, but had to reduce speed to allow a car blocking the pathway to move. Martin was also entering the intersection, and the two vehicles collided. Martin subsequently filed suit against the City under the Texas Tort Claims Act (TTCA), seeking recovery for her property damages and personal injuries, and the City denied liability and counterclaimed for damages to the fire truck. The trial court rendered judgement for $2,000 in favor of Martin, and the City appeals.
By two points of error, the City claims there is no evidence to support Conclusions of Law four and five: that the " efendant's agent failed to enter the intersection with safety and such failure was the proximate cause of the collision and Plaintiff's damages," and that the defendant was liable for negligence under V.A.T.S. Article 6701d, section 75(b). In essence the City claims that the trial court's determination, in Conclusion of Law three, that the City's vehicle operator "was not acting in reckless disregard for the safety of others," was tantamount to a finding of no actionable negligence under the TTCA, and precluded any later finding of liability against the City. We disagree.
In general, a municipality is not liable for the acts of its employees unless immunity is waived by the TTCA. City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1993); see generally Tex. Civ. Prac. & Rem. Code Ann. Section(s) 101.001-.063 (Vernon 1986 & Supp. 1995). With respect to such a waiver, section 101.021 of the TTCA provides that a governmental unit is liable for:
(1) property damage, personal injury . . . proximately caused by the wrongful act or omission or the negligence of an employee acting within the scope of employment if:
(A) the property damage, personal injury . . . arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law . . . .
However, section 101.055(2), relied upon by appellant, excludes from the TTCA, and in effect reinstates governmental immunity for, claims arising from emergency actions of an employee ". . . taken with conscious indifference or reckless disregard for the safety of others . . . ." Fernandez v. City of El Paso, 876 S.W.2d 370, 376 (Tex.App. -- El Paso 1993, writ denied). Thus, in the cases where actions are taken with reckless disregard, the municipality would remain immune from suit. Id. Nevertheless, such is not the case here.
In the present case, Martin pled liability of the City based upon the TTCA. The trial court found that the City's agent was not acting in reckless disregard for the safety of others, and ultimately based the City's liability on Article 6701d, section 75, which requires drivers of authorized vehicles to exercise due regard for the safety of all persons. Tex. Rev. Civ. Stat. Ann. art. 6701d, Section(s) 75(b) (Vernon 1977).
When the trial court found the City was not acting in reckless disregard for the safety of others while responding to an emergency, it rendered section 101.055(2) inapplicable, and placed Martin's claim within section 101.021, the general liability provision
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