No waiver of immunity exists when accident caused by an emergency situation says First District Court of Appeals
City of Houston, Texas v Sheila McGriff, 01-21-00487-CV, (Tex. App – Hou [1st], Dec. 15, 2022)
This is a TTCA case involving a vehicular accident with a city owned vehicle. Appellee (“McGriff”) was driving a bus and Appellant’s (“the City”) employee was operating a freightliner with an attached trailer, both city owned. Appellee claimed the employee drifted into her lane and caused her serious injuries, including a traumatic brain injury. Appellant’s only issue claims that McGriff did not show that the City’s immunity was waived because of the sudden emergency defense and that, therefore, the court has no jurisdiction. The trial court denied the City’s plea. The appellate court affirmed the judgment.
To prove the court lacks jurisdiction, Appellant must show there is no issue of material fact and immunity was not waived. Here, Appellant’s sole issue asserts that McGriff did not establish a waiver of immunity because its employee and driver of the freightliner, Robertson, would not have been personally liable in this accident because of the sudden emergency defense. This defense would negate any breach of duty by Robertson to Appellee. Appellee claimed Robertson was negligent because he was looking at his cell phone before the impact and there was no third vehicle that cut him off as he had claimed in the accident report.
A sudden emergency only exists when “(1) an emergency situation arises suddenly and unexpectedly, (2) the emergency situation was not proximately caused by the negligent act or omission of the person whose conduct is under inquiry, and (3) after an emergency situation arose that to a reasonable person would have required immediate action without time for deliberation, the person acted as a person of ordinary prudence would have acted under the same or similar circumstances.” According to the court and the evidence before it, the City fell short in proving that Robertson was not entirely negligent. The court denied the Appellant’s plea and summary judgment motion and, in so doing, overruled Appellant’s sole issue. The trial court’s order was affirmed.
Panel consists of Chief Justice Radack, and Justices Countiss and Rivas-Molloy. Affirmed. Opinion by Justice Countiss can be read here. Docket page with attorney information can be found here.
