City failed to establish responding to a reckless driver is an emergency for immunity purposes says 14th Court of Appeals

Paula Collins v. City of Houston, Texas, 14-13-00533-CV (Tex. App. – Houston [14th Dist.], July 3, 2014)

In this case the 14th Court of Appeals reversed the granting of the City’s plea to the jurisdiction in an emergency vehicle Tort Claims Act case.

Houston PD Officer Brown responded to a call of a reckless motorcyclist (not Collins) and proceeded to respond. While en route, Collin’s vehicle moved in front of Brown, who proceeded to pass Collins. Brown collided with Collins when she moved back into the left lane and abruptly stopped.  Brown was suspended for three days in connection with the accident. Collins sued the City but it filed a plea to the jurisdiction noting Brown was responding to an emergency situation and was also entitled to official immunity. The trial court granted the plea and Collins appealed.

The court first analyzed Brown’s official immunity claim.  While Brown was not sued, if he is entitled to official immunity, the City is not liable either since it is only liable if the employee is liable. The court noted that operation of a vehicle is discretionary in some special situations (such as a high-speed chase) but absent such special circumstances, an officer performs a ministerial act by simply driving a car in a non-emergency situation. In this case, Brown was not required to respond but evaluated the situation and concluded he was closer to the area. The court agreed this was a discretionary function. However, the City was required to demonstrate that a reasonably prudent officer could conclude that the need to respond to a speeding motorcyclist driving recklessly outweighed the risk to the public caused by the officer’s action in exceeding the speed limit while responding.  The court held the offered testimony by the City to establish good faith did not analyze or examine this balance in Brown’s specific fact situation, so the City failed to establish for plea purposes, that Brown acted in good faith. Brown may be able to do so once the record is developed, but not on the present record.

With regards to the emergency response situation, the court held that while the City presented evidence its officers consider responding to a call for assistance for evading arrest an emergency, the evidence did not show the motorcyclist was evading arrest, only driving recklessly. And since the City failed to present evidence that responding to a reckless driver is an emergency, it failed to establish its entitlement to immunity. [Comment: this seems to be a hair-line thin distinction, especially given the court’s factual explanation.  But it is a lesson for litigators to fully connect affidavits to the specific fact situation because you never know when a court will draw such a thin distinction.]

If you would like to read this opinion click here. Panel: Justice Boyce, Justice Christopher, and Justice Brown.  Memorandum Opinion by Justice Boyce. The attorneys listed for Collins are William R. Edwards, III and Les Cochran.  The attorneys listed for the City are Patricia Horsak  and Mary Stevenson.