Fire truck driver entitled of official immunity says 5th Court of Appeals
City of Dallas v. Brian Loncar, Sue Loncar, et al, 05-12-00705-CV, (Tex. App – Dallas, January 16, 2014).
This is an interlocutory appeal from the denial of a plea to the jurisdiction involving a vehicle collision at an intersection between Loncar and a City of Dallas emergency response vehicle {fire engine}. The trial court denied the plea and the 5th Court of Appeals reversed.
The City’s fire engine was responding to an emergency call. Evidence submitted notes the engine was proceeding properly through the streets, approached an intersection, evaluated the traffic situation as it approached, believed the traffic was clear to enter, but collided with a vehicle trying o beat the yellow light. Loncar, the driver of the Plaintiff’s vehicle sued, including the driver of the fire truck, Ferguson. The trial court denied Ferguson’s claim of official immunity and he appealed.
The Dallas Court of Appeals first went through the details of Ferguson’s affidavit (which was pretty thorough and is a good example of the types of things which should go into such an affidavit). It explained away Loncar’s assertions of contradictory statements and attempts to create a fact issue and determined the evidence and testimony as stated posed no fact question. It noted that the legislature “has placed a higher burden upon civilian drivers than upon emergency vehicle drivers; this burden is justified because emergency vehicle operators face more exigent circumstances than civilian drivers and because civilian drivers have the advantage of being able to prevent collisions with emergency vehicles due to the emergency vehicles’ use of sirens and lights and due to the conspicuous coloring of emergency vehicles. … Emergency responders are entitled to presume other drivers will respect emergency priorities.” The court determine the uncontroverted evidence established as a matter of law that Ferguson acted in good faith and was entitled to official immunity.
The analysis of the affidavit and facts submitted to support official immunity is a good one to review when considering an employee’s entitlement. Government attorneys and litigators can use this as a good template for the types of facts to submit to the court. [While I’m personally curious as to why the issues under Tex. Civ. Prac. & Rem. Code §101.106 were not at issue, the opinion does not address the procedural history enough to determine if it was an appropriate argument or not.]
If you would like to read this opinion click here. Before Justices Moseley, Bridges, and Lang-Miers; Opinion by Justice Bridges. Attorneys for City are listed as James B. Pinson , Thomas P. Perkins Jr. , Barbara E. Rosenberg, and Julie A. Essenburg. Attorneys for Appellees are listed as Frederick Leighton Durham, Stephen Lee Daniel, Peter M. Kelly, Kirk L. Pittard, and Michael Christopher Whitaker.
