The City of Houston v Stephon Lamar Davis, 01-13-00600-CV (Tex. App.- Houston[1st Dist.], April 24, 2014)
This is an interlocutory appeal from the trial court’s denial of the City of Houston’s plea to the jurisdiction in a police dog bite case under the Texas Tort Claims Act. The trial court denied the City’s plea to the jurisdiction based on an emergency exception but the 1st District Court of Appeals in Houston reversed and rendered a dismissal.
Officer Briones pulled over a red car after Davis’s wife told him that the car was trying to run her off the road. After Briones stopped the red car, Davis parked nearby and got out of it. He was bitten by Briones’s K-9 police dog, Berro, who exited Briones’s patrol car through the open driver’s side door. Davis sued the City, claiming that Briones negligently left open the door to the patrol car (i.e. negligent use of a motor vehicle) and the dog is personal property negligently used resulting in an injury. The City filed a plea to the jurisdiction which the trial court denied and the City appealed.
The “emergency exception” provides that there is no waiver of immunity when a governmental employee is responding to an emergency. Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2) (West 2011). According to Officer Briones’s deposition testimony, he was still in his car when he noticed a tall man approaching, yelling, and waving his arms. Briones did not know which car the man had come from, and he testified that he repeatedly told the man to “get back,” but the man continued to approach. He exited the vehicle and continued to command the man to stop, but he did not comply. Officer Briones left the car door open when he exited resulting in Berro’s actions of exiting the car, moving to intercept, and biting the approaching man (who happened to be Davis). Davis did not deny that Briones told him to get back or that he was yelling as he approached. He further argued that the emergency exception did not apply because there was a genuine issue of material fact regarding whether the situation was an emergency.
In his affidavit, Officer Briones averred that when Davis’s wife told him that the red car had tried to run them off the road, he determined that an emergency situation existed and that he should pull over the red car immediately. Davis acknowledges that Briones pulled over the red car because his wife told Briones it tried to run them off the road. Briones established he was responding to an emergency situation and since Davis admitted the essential elements, the fact no one was arrested or used the term “emergency” does not create a factual dispute. Further, even if leaving the car door open was the “operation” of a vehicle, the evidence at most demonstrates that Officer Briones had a “momentary judgment lapse” in leaving the car door open which does not rise to the level of “recklessness” or “conscious indifference” needed to overcome the emergency exception. As a result, the trial court erred in denying the plea. The case was reversed and a dismissal rendered.
If you would like to read this opinion click here. Panel: Chief Justice Radack, Justice Massengale and Justice Huddle. Opinion delivered by Justice Huddle. Attorneys for Appellant City of Houston are John B. Wallace and Mary Stevenson. Attorney for Appellee Davis is Richard W. Wilkinson, Jr.