City of Hous. v. Hussein, 01-18-00683-CV

CITY OF HOUSTON, Appellant v. NAJLA HUSSEIN AND ASHA OBEID, Appellees

NO. 01-18-00683-CV

Court of Appeals For The First District of Texas

November 19, 2020

On Appeal from the 125th District Court Harris County, Texas

Trial Court Case No. 2017-81588

MEMORANDUM OPINION ON REHEARING

Appellant, City of Houston (the "City"), has a filed a motion for en banc reconsideration of our March 19, 2019 memorandum opinion and judgment.¹Treating the motion for en banc reconsideration as a request for a panel rehearing,² we deny the motion for rehearing, withdraw our opinion and judgment of March 19, 2019, and issue this memorandum opinion and new judgment in their stead.³ We dismiss the City's motion for en banc reconsideration as moot.⁴

In this interlocutory appeal,⁵ the City, challenges the trial court's order denying its motion for summary judgment and its motion to dismiss the negligence suit against it by appellees, Najla Hussein and Asha Obeid (collectively, "appellees"). In two issues, the City contends that the trial court erred in denying its motion for summary judgment and its motion to dismiss appellees' claims against it.

We affirm in part and reverse and render in part.

Background

In their second amended petition, appellees allege that on May 26, 2016, they were riding in a City ambulance, driven by Antonio Camacho, an employee of the City, when the ambulance suddenly, and without warning, struck the concrete barrier of a toll booth. Appellees were "toss[ed]" as a result, and both suffered personal injuries.

Appellees bring negligence claims against the City, asserting that Camacho was negligent in failing to keep a proper lookout, failing to control the speed of the ambulance, failing to drive at a safe speed, failing to drive in a single lane, failing to turn the ambulance to avoid the impact, and attempting to drive a large ambulance through a narrow toll booth at an excessive speed. According to appellees, each of Camacho's acts or omissions proximately caused their injuries and damages. Appellees each sought damages for past and future physical pain and mental anguish, past and future medical care and expenses, and past and future pain and suffering.

The City answered, generally denying the allegations in appellees' petition and asserting "governmental immunity . . . as an affirmative defense."

The City then moved for summary judgment, arguing that it was entitled to judgment as a matter of law because the trial court lacks subject-matter jurisdictionover appellees' suit.⁶ The City asserted that it is a governmental entity under the Texas Tort Claims Act ("TTCA"), and thus, it is entitled to governmental immunity. The City acknowledged that the TTCA waives governmental immunity for personal injuries proximately caused by the negligence of a governmental employee acting in the scope of his employment where the injury "arises from the operation or use of a motor-driven vehicle."⁷ But, in this case, it asserted that the "emergency exception" applies and preserves the City's immunity.⁸

The City also moved to dismiss appellees' negligence claims against it, asserting that appellees had alleged health care liability claims, they had failed to serve a statutorily-required expert report, and the trial court had to dismiss their claims.⁹

The City attached to both motions the affidavit of Camacho, Obeid's response to the City's first set of interrogatories, and Obeid's response to the City's first set of admissions. In his affidavit, Camacho testified that he is a certified paramedic and provides "advanced life support care." On May 26, 2016, he was the engineer/operator of Houston Fire-EMS ambulance M003. As part of his job duties,he operated units to emergencies using lights and sirens, retrieved equipment, assisted and supervised the in-charge caregiver who provided care to patients, maintained a safe scene, mitigated risk at a scene, called for additional resources as necessary, and transported patients to facilities in a timely manner. On May 26, 2016, at 12:37 p.m., his ambulance, with its emergency lights and siren activated, was dispatched to Obeid's home because Obeid was suffering from chest pains—a complaint that was "always treated as [a] worst-case scenario: a heart attack."

Upon arrival at Obeid's home at 12:52 p.m., Obeid complained of chest pain and rated her pain as an eight out of ten. At 12:58 p.m., an electrocardiogram ("EKG") performed at Obeid's home showed that she was experiencing atrial fibrillation. According to Camacho, atrial fibrillation means that "the upper chamber of the heart (the atrium) is quivering" and atrial fibrillation can cause clots, which "c[an] travel to the brain and cause a stroke, travel to the lungs and cause a pulmonary embolism ("PE")[,] or travel to the heart" and cause a heart attack. Camacho stated that such conditions are immediately life-threatening, so when a patient has atrial fibrillation with a heart rate of more than 150 beats per minute, paramedics treat the patient's condition as a life-threatening emergency. When a patient has atrial fibrillation with a heart rate of less than 150 beats per minute, paramedics treat the patient's condition as urgent, but not critical. And if a patient has atrial fibrillation, but a normal heart rate, transportation to a hospital is stillrequired because paramedics are unable to ascertain whether a patient is having a PE, a heart attack, or is suffering from a more serious condition. Even a patient with atrial fibrillation who is stable must be transported to a hospital with "some urgency" because she "could deteriorate rapidly." Camacho notes that women can experience a heart attack but still have normal EKG results, so transport to a hospital is necessary for further testing.

At 1:11 p.m., Camacho's ambulance left Obeid's home to transport Obeid to the hospital. While transporting Obeid, the ambulance's emergency lights and siren were not engaged. According to Camacho, emergency lights and siren were not necessary because Obeid's heart rate was a normal rate and her pacemaker "was doing its job." And although the paramedics needed to transport Obeid to a hospital with "some urgency," neither Obeid's condition nor the time of day required the use of the ambulance's emergency lights and siren. Camacho explained that he did not need to drive "extra fast" and "in a manner that [would] pose[] a greater risk to the public at large." And traffic was not "heavy" while he was driving.

Camacho further testified that Obeid's home was "equidistant from two hospitals that c[ould] provide [her with] cardiac care"—Memorial Hermann Memorial City Medical Center ("Memorial Hermann Memorial City") and Memorial Hermann Southwest Hospital ("Memorial Hermann Southwest"). Initially, Camacho started driving toward Memorial Hermann Memorial City, butObeid "requested . . . [a] change [of] course" because she had previously been treated at Memorial Hermann Southwest. Upon Obeid's request, Camacho "had to make a very quick decision to exit the tollway [on which he was driving] and change direction." Because the exits on the tollway were limited, "missing [an] exit would have added 15 minutes" onto the drive to the hospital. When trying to exit, Camacho chose a lane that had the fewest cars in line at an upcoming toll booth. But, as he approached the toll booth in the ambulance, he saw a sign that said that the lane he had selected was only to be used by "narrow cars." He then stopped the ambulance. He could not change lanes because the barrels connected by a cable in front of each toll booth prevented cars from doing so. He considered backing up the ambulance far enough to change lanes, but he believed that by doing so, he "would . . . pose[] a significant risk to other drivers exiting the tollway" because of his limited ability to see behind the ambulance while driving. He believed that "backing up" the ambulance was the "riskier option." Thus, he decided to drive the ambulance forward at approximately five miles per hour "to minimize the impact if the ambulance were to collide with the toll booth."

As Camacho drove through the toll booth, he used the ambulance's side mirrors to ascertain whether the ambulance would fit through the "narrow" lane. Although the side mirrors "cleared" the toll booth, unbeknownst to Camacho, the lane was narrower at the bottom "so the bottom of the ambulance hit the toll booth."According to Camacho, about two minutes passed between the time Obeid told him to take her to Memorial Hermann Southwest and the time the ambulance hit the toll booth.

In Obeid's response to the City's first set of interrogatories, she states that Hussein called for emergency assistance on her behalf because she was experiencing chest pains and thought she was having a heart attack. Obeid also states that as a result of the ambulance hitting the toll booth, she sustained injuries to her neck, chest, left shoulder, back, and knee.

In her response to the City's first set of admissions, Obeid admits that she was experiencing chest pains on May 26, 2016 at the time the call for emergency assistance was made. She also admits that she believed, at that time, that her life could be in danger, she needed urgent medical assistance, and she believed "the situation to be an emergency." Additionally, she admits that she saw "flashing lights" and heard sirens when the ambulance arrived at her home. And that she was later in the ambulance so that she could be transported to the hospital. Obeid denied that she was "being transported to a hospital in the ambulance because [she] needed urgent medical assistance."

In response to the City's summary-judgment motion,¹⁰ appellees asserted that they had pleaded facts in their petition to adequately show waiver of governmental immunity under the TTCA.¹¹ They alleged that they were injured by the negligence of Camacho, a City employee who was operating a motor vehicle, and the City had failed to conclusively prove that...