County’s Mtn to Dismissed Denied Due to Fact Question
San Jacinto County Sheriff’s Office v. Sabrina Butler, NO. 09-12-00442-CV, Court of Appeals for the Ninth District (February 21, 2013)
This case is an interlocutory appeal from the denial of a motion to dismiss. The suit arises out of a collision involving a motor vehicle driven by sheriff’s deputy and the vehicles driven by Plaintiffs. The County asserted, supported by affidavit, that at the time of the accident the deputy was responding to an emergency call of a shooting. The Plaintiffs asserted the Deputy’s statement was not conclusively established. However, the Plaintiffs did not provide any reference in the record which could create a fact issue as to whether the deputy was responding to an emergency, so the emergency provision of Tex. Civ. Prac. & Rem Code. § 101.055(2) applies.
The Plaintiff asserted the County failed to negate the deputies actions were reckless (thereby waiving immunity). The court held “[t[he record in this appeal is not clear as to whether Butler had signaled a left turn, whether Deputy Lamott saw the signal and proceeded anyway, or whether he did not see the signal. A disputed issue of fact exists concerning whether Deputy Lamott’s conduct was reckless under the circumstances, ‘and it is the jury’s role to resolve disputed issues of fact.’” As a result, the denial of the motion to dismiss was proper and the trial court’s ruling is affirmed.
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