City and Officer who witnessed car accident immune from claims they “failed to protect and warn” of the impending collision

 

Christopher Leron Clegg v. City of Fort Worth  02-17-00040-CV (Tex.App – Fort Worth, December 14, 2017)

This is a Texas Tort Claims Act (“TTCA”) vehicle accident case where the Fort Worth Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Madrigal’s car collided with Howell’s car when Madrigal ran a red light. Clegg was a passenger in Madrigal’s car who suffered injuries. Fort Worth Police Officer Olimpo Hernandez witnessed the accident. He wrote a crash report stating he observed multiple containers of beer inside Madrigal’s car, Madrigal smelled of alcohol, had a blood-alcohol level of .10 and was arrested. Clegg filed suit against the City and Hernandez asserting they failed to regulate traffic through the use of his patrol vehicle. In a separate suit, Clegg sued Madrigal. Hernandez was dismissed pursuant to §101.106(e). The City then filed a plea to the jurisdiction asserting the police department was not a jural entity and Clegg’s injuries were not caused by the operation of Hernandez’ vehicle. The trial court granted the City’s plea and issued findings of fact and conclusions of law. Clegg appealed.

Characterizing Clegg’s briefing as a “garbled morass,” the court held it was not required to guess at what causes of action he was trying to advance, but would attempt to decipher them based on the pleadings. However, under §101.055, the TTCA unequivocally does not apply to a claim arising “from the failure to provide or the method of providing police or fire protection.”   Such is the heart of what Clegg is alleging. Further, no negligent act of Hernandez caused the accident.  “[T]he (vehicle)’s use must have actually caused the injury.” That is not the case here, therefore no waiver of immunity exists.  Moreover, the Texas Supreme Court “has never held that non-use of property can support a claim under the [TTCA].”  The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justices Sudderth, C.J,  Kerr, Pittman, and JJ. Memorandum Opinion by Justice Meier. To see the attorneys listed for the Appellants and Appellee click here.