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Click here for the full text of this decision A governmental entity is immune from suits to recover damages resulting from the emergency operation of an emergency vehicle unless the operator acted recklessly; that is, committed an act that the operator knew or should have known posed a high degree of risk of serious injury. FACTS:Christopher Richard Smith and the city of Schertz appeal the trial court’s denial of their motion for summary judgment on the grounds of sovereign immunity. HOLDING:Reversed and rendered. Among the grounds urged by the city in its motion for summary judgment is the exception to the waiver of sovereign immunity contained in Texas Civil Practice and Remedies Code �101.055(2), which provides that the Texas Tort Claims Act “does not apply to a claim arising . . . from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action . . . ” The “ law applicable to emergency action” in this context is Texas Transportation Code �546.005, which provides that, although the driver of an emergency vehicle must drive “with appropriate regard for the safety of all persons,” he is not relieved of “the consequences of reckless disregard for the safety of others.” Interpreting the uncodified predecessor of �546.005, the Texas Supreme Court held that this provision “imposes a duty to drive with due regard for others by avoiding negligent behavior, but it only imposes liability for reckless conduct.” City of Amarillo v. Martin, 971 S.W.2d 426 (Tex. 1998). Thus, a governmental entity is immune from suits to recover damages resulting from the emergency operation of an emergency vehicle unless the operator acted recklessly; that is, “committed an act that the operator knew or should have known posed a high degree of risk of serious injury.” In its motion for summary judgment, the city sought to establish that Smith was not reckless as a matter of law and therefore the city retains its sovereign immunity. In considering whether the city was successful in doing so, the court considers only the city’s summary judgment evidence that the plaintiff did not dispute and to which the plaintiff did not object. This evidence establishes that Smith was driving the ambulance in an emergency situation with the lights and sirens activated as he approached the intersection where the accident occurred. Other drivers at the intersection could hear and see the sirens and lights. At the intersection, Smith slowed down and looked around. Then, seeing that all traffic had stopped or yielded to him, he proceeded into the intersection without coming to a complete stop. As Smith entered the intersection, Hannah Janda pulled out in front of him from the right; and Smith hit the drivers’ side of Janda’s car. The court holds this evidence is sufficient to establish that Smith was not reckless as a matter of law. Because the motion for summary judgment established Smith was not reckless as a matter of law, the burden shifted to the plaintiff to raise a genuine issue of material fact on this issue. In responding to the city’s motion for summary judgment, the plaintiff submitted evidence that Smith’s light was red when he entered the intersection and argued that the “question of who had a red light . . . cannot be answered and remains a genuine issue of material fact.” The court disagrees disagree. As Martin states, “Proceeding through a red light is a specifically enumerated privilege of emergency vehicles in emergency situations.” Thus, “an emergency vehicle operator responding to an emergency call is allowed to proceed against a red traffic light after slowing for safe operation.” Flores v. City of San Antonio, No. 04-99-00555-CV (Tex. App. San Antonio June 14, 2000, pet. denied) (not designated for publication). It is undisputed Smith had activated his lights and siren, slowed the ambulance, and ascertained that traffic was yielding to him before he proceeded into the intersection; accordingly, that Smith entered the intersection against a red traffic light is insufficient, in and of itself, to raise a genuine issue of material fact as to whether he acted recklessly. OPINION:Duncan, J.; dissenting opinion by: Alma L. Lopez, J..

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