Saturday, August 9, 2008

2008-08-08 Petition for Review in TTCA Case Stemming from Collision with Emergency Vehicle Struck


Among the few orders issued August 8, 2008, the Court strikes Petition for Review in case brought under the Texas Tort Claims Act (TTCA) seeking damages for injuries sustained in collision with police car:

"The petition violates Texas Rules of Appellate Procedure 9.4(d) and (g) and is struck. Petitioner is ordered to redraw; the redrawn petition is due to be filed August 18, 2008."

from Tarrant County; 2nd district (02-07-00249-CV, ___ SW3d ___, 07-31-08) (officer found not reckless in operating emergency vehicle, jurisdictional dismissal)


One exception to the waiver of governmental immunity contained in section 101.055(2) provides that the TTCA "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." Tex. Civ. Prac. & Rem. Code Ann. ' 101.055(2) (Vernon 2005); Lipan ISD v. Bigler, 187 S.W.3d 747, 750 (Tex. App.- Fort Worth 2006, pet. denied); Smith, 126 S.W.3d at 545.

The laws regarding the operation of an emergency vehicle are located in the Texas Transportation Code. See Tex. Transp. Code Ann. '' 546.001-.006 (Vernon 1999 and Supp. 2007). Section 546.001 allows the operation of an emergency vehicle to proceed past a red light after slowing as necessary for safe operation when the operator is responding to an emergency call. Id. at ' 546.001(2). Section 546.005 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." Id. at ' 546.005; see Smith, 126 S.W.3d at 545; see also Hale v. Pena, 991 S.W.2d 942, 948 (Tex. App.- Fort Worth 1999, no pet.). Interpreting the uncodified predecessor of section 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, 431 (Tex. 1998).

Thus, a governmental entity is liable for damages resulting from the emergency operation of an emergency vehicle only if the operator acted recklessly; that is, only if the operator "committed an act that the operator knew or should have known posed a high degree of risk of serious injury" but did not care about the result. Id. at 430.

Because under the TTCA, a governmental entity's immunity from suit is waived only to the extent the TTCA authorizes liability, a governmental entity is immune from suits resulting from the emergency operation of an emergency vehicle unless the operator acted recklessly. Tex. Civ. Prac. & Rem. Code Ann. ' 101.025; Smith, 126 S.W.3d at 545.
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The evidence shows that Officer Warren was driving his police car in an emergency situation with the lights and sirens activated when he entered the intersection. At the intersection, Officer Warren slowed down and looked around. Then, seeing that traffic had stopped or yielded to him, he proceeded into the intersection without coming to a complete stop. Officer Warren did not see Robinson's truck until after he had entered the intersection; he then accelerated to try to clear the intersection and to avoid a collision with Robinson. Robinson, however, hit the rear passenger side of the police car driven by Officer Warren, and the police car hit Barnes's car.

Appellees did not present any evidence or plead any other facts, which when taken as true, raise a fact issue as to whether Officer Warren knew or should have known that entering the intersection posed a high degree of risk of serious injury, yet proceeded without caring about this high degree of risk. Therefore, we hold that appellant met its burden to establish as a matter of law that Officer Warren was not reckless and that appellant's immunity was not waived. We sustain appellant's sole issue.
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Having sustained appellant's sole issue, we reverse the trial court's judgment denying appellant's plea to the jurisdiction and render judgment dismissing appellees' claims against appellant for lack of subject matter jurisdiction.

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