Plaintiff’s expert created fact issue as to officer’s recklessness preventing the granting of City’s plea to the jurisdiction

Bay City, Texas v. Wade McFarland, 13-15-00122-CV (Tex. App— Corpus Christi, October 13,2016)

This is a Texas Tort Claims Act case involving an automobile accident where the Corpus Christi Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

Officer Kunz was dispatched to the scene of a residence where two siblings had been reported fighting with deadly weapons. While in route, Officer Kunz collided with a motorcycle driven by McFarland.  The evidence is undisputed Officer Kunz proceeded through the intersection without stopping at a stop sign. McFarland sued the City alleged it was vicariously liable for Officer Kunz negligent and for negligently hiring him. The City filed a plea to the jurisdiction asserting the emergency responder protections and Officer Kunz’ official immunity.   In response McFarland’s expert testified the dash cam contradicted Kunz’s affidavit testimony regarding her slowing before entering the intersection. The expert concluded that Officer Kunz’s operation of her vehicle was reckless and that no reasonably prudent officer could believe that her conduct was necessary. The trial court denied the plea and the City appealed.

While the evidence is undisputed Officer Kunz was responding to an emergency call and had her lights and siren on, the evidence before the trial court contained a material fact issue as to whether she slowed before entering the intersection. So the plea was properly denied as to the emergency responds defense. Additionally, the issue regarding whether Officer Kunz slowed down is material to the third “need-factor” under official immunity defense concerning whether a safer alternative course of action was available.  As a result, the plea was properly denied as to the official immunity defense.

If you would like to read this opinion click here. The Panel includes  Chief Justice Valdez, Justice Rodriguez and Justice Perkes. Chief Justice Valdez delivered the opinion of the court.  If you would like to see the Representatives for the Appellant and Appellee please click here for the docket page.