Fact question on whether trooper slowed before intersection precluded plea to the jurisdiction says El Paso Court of Appeals

Texas Department of Public Safety v. Merardo Bonilla, 08-13-00117-CV (Tex. App. – El Paso, May 30, 2014).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in vehicle accident case under the Texas Tort Claims Act (“TTCA”). The El Paso Court of Appeals affirmed the denial.

Trooper Cruz, with lights on but no sirens, ran a red light while pursuing a speeder and struck Bonilla’s vehicle.  DPS asserted governmental and official immunity as well as evidentiary objections. The trial court denied the plea and DPS appealed.

The first third of the opinion is dedicated to an evidence dispute where Bonilla attached a report from a DPS reconstruction team which was unfavorable to DPS. The report was created by an internal investigative arm of DPS to explain to itself what happened to Trooper Cruz in a state vehicle. Its statements were party-opponent admissions and the refusal to stipulate to its own teams expert qualifications was not a challenge to their qualifications. Next, DPS argued Trooper Cruz was pursuing a speeding driver who was making multiple lane changes,disobeying traffic control devices and therefore triggered the emergency exception under the TTCA. While the court agreed the situation qualified an emergency, Tex. Transp. Code §546.001 sets a standard of care for emergency vehicles requiring a slowing as necessary for safe operation. A fact question exists as to whether Cruz slowed before entering the intersection. And while DPS could have taken advantage of any official immunity granted to Cruz, a fact question exists as to whether the officer’s need to chase the speeder outweighed the need to slow (or whatever he did) before entering the intersection.  Since DPS did not provide evidence Cruz actually considered and weighed options, his good faith cannot be considered at this time. The trial court properly denied the plea.

If you would like to read this opinion click here. Panel: Chief Justice McClure, Justice Rivera, and Justice Rodriguez.  Memorandum opinion by Chief Justice McClure. The attorney listed for DPS is Elsa Nava.  The attorney listed for Bonilla is Nataliya Kharmats Tipton.

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