Hidalgo County, Texas v. Michael Calvillo, et al., 13-15-00261-CV (Tex. App. – Corpus Christi, February 11, 2016).
This is a Texas Tort Claims Act (“TTCA”) case involving a vehicle collision with a Hidalgo County Sheriff’s Deputy in which the 13th Court of Appeals affirmed the denial of the County’s plea to the jurisdiction.
Deputy Olivarez was patrolling when he received a dispatcher of an active shooting in which two officers had been injured. While responding, Olivarez approached the Calvillo vehicle traveling in the same direction. As Olivarez attempted to pass Calvillo on the right shoulder, Calvillo made a 90-degree right turn, and the two vehicles collided. Calvillo sued the County, which filed a plea to the jurisdiction. The trial court denied the plea and the County appealed.
Calvillo alleged Deputy Olivarez was traveling at an unsafe rate of speed, attempted to pass on the right in an unsafe manner, and violated various Texas Transportation Code provisions. The County asserted Calvillo failed to identify specific conduct of the deputy that would support the conclusion he disregarded the safety of others. The rate of speed, passing on the right, and alleged violations were permitted under the Transportation Code in emergency situations under Tex. Transp. Code §§546.001, 058. While it is undisputed Deputy Olivarez was responding to an emergency call, the panel held the County is subject to liability under the TTCA and Transportation Code if the employee’s conduct violates the laws and ordinances applicable to emergency response or is reckless. The analysis applied by the panel turned on the burden of proof. While admittedly an emergency situation, the County submitted no evidence Deputy Olivarez drove with due regard for the safety of others. The County argued once an emergency situation was established, Calvillo had the burden to provide evidence of a lack of due regard. The panel held that it must indulge every reasonable inference in Calvillo’s favor, and therefore the pleadings established a proper allegation with no evidence placing the “due regard” element in dispute. Under the “good faith” prong for the County to take advantage of Olivarez’ official immunity, the County offered no evidence to show that Olivarez’s presence was necessary to prevent further injury or loss of life at the emergency call. The record does not address alternative routes Olivarez could have taken, or the degree, likelihood, and obviousness of the risks created by Olivarez’s actions. Without addressing the risk factors in the good faith balancing test, the County does not have a suitable basis for concluding that a reasonable officer in Olivarez’s position could have believed his actions were justified. The plea was therefore properly denied.
If you would like to read this opinion click here. Panel: Justice Garza, Justice Perkes and Justice Longoria. Memorandum Opinion by Justice Perkes. The attorneys listed for the Plaintiffs are Taylor Shipman and Keith W. Lapeze. The attorneys listed for the County are Miguel Ruiz and Preston Henrichson.