Special contributing author Laura Mueller, City Attorney for Dripping Springs
Nathan White v. City of Houston, No. 01-20-00415-CV (Tex. App.—Houston March 25, 2021).
In this appeal from a trial court’s holding that the city retained immunity under the emergency exception to the Texas Tort Claims Act, the First Court of Appeals affirmed the trial court’s judgment because the use of a fire hose on a fire truck headed to an emergency began when the truck left for the emergency invoking both the Texas Tort Claims Act and its emergency exception.
The plaintiff sued the city after his car was damaged and he was injured by a fire hose dragging behind a fire truck en route to an emergency. The plaintiff sued the city arguing that the dragging hose was missing an integral safety component because there is equipment available that could have ensured that the hose did not fall off the truck while it was in motion. The plaintiff also argued that because the hose was en route it was in use at the time of the dragging, but was not actually being used in the emergency, so the emergency exception did not apply. The city argued that because the fire truck was en route that the emergency exception to the Tort Claims Act applied and preserved immunity. The trial court granted the city’s plea to the jurisdiction m and the plaintiff appealed.
The Texas Tort Claims Act waives a city’s immunity when there are injuries or damages caused by the operation or use of a motor-driven vehicle and motor-driven equipment. Tex. Civ. Prac. & Rem. Code § 101.021. Immunity is not waived for non-use of property. Once a waiver is established due to use of property, the governmental entity can retain its immunity if the use was during an emergency and the action was “not taken with conscious indifference or reckless disregard for the safety of others.” Id. § 101.055(2). The court of appeals held that if the hose being on the truck was sufficient to invoke use under the Tort Claims Act, that use was related to the emergency where the truck carrying the hose was headed. The court also held there was no evidence of conscious indifference or reckless disregard. The court of appeals upheld the trial court’s grant of the city’s plea to the jurisdiction.
If you would like to read this opinion click here. Panel consists of Justices Goodman, Landau, and Guerra. Opinion by Justice Gordon Goodman.