Carolyn Northcutt, as Personal Representative of the Estate of James H. Bell v. City of Hearne, 10-14-00012-CV (Tex. App. Waco – July 30, 2015).
This is an appeal from the granting of a plea to the jurisdiction in a vehicle accident case. The Waco Court of Appeals affirmed the granting of the plea citing a lack of evidence supporting a nexus.
James Bell died in a motorcycle accident when he swerved to avoid a Hearne PD patrol car which had just initiated its lights to pursue another vehicle. Northcutt asserted a negligence cause of action against the City and sought wrongful death and survival damages. The City filed a plea to the jurisdiction which the trial court granted. Northcutt appealed.
Under Tex. Civ. Prac. & Rem. Code Ann. § 101.021 sovereign immunity is waived for and accident which “arises from the operation or use of a motor-driven vehicle…” The term “arises from,” as used in the TTCA, requires a nexus between an injury negligently caused by a governmental employee and the operation or use of a motor driven vehicle and requires more than simply the involvement of property. Essentially, the question before this Court is whether the evidence creates a fact question on the nexus between turning on the lights and pursuing a vehicle and Bell’s accident. The court noted the investigative report in the record was objected to as hearsay and the objection was sustained. Additionally, Northcutt did not file a formal objection to the plea and did not submit any other evidence. The affidavit of the officer involved (Sullivan), described the accident. Nothing indicated he was negligent in triggering his lights and pursuing another vehicle or acted negligently in any other way. The evidence does not support a nexus and therefore there is no waiver of immunity.
The dissent believes the evidence was sufficient to create a fact question. Justice Davis actually quoted the majority of the affidavit testimony and portions of the investigative report and did a bullet point listing of the evidence he felt created the fact issue. However, the majority was not convinced the inferences made created a fact issue on nexus.
If you would like to read this opinion click here. Chief Justice Gray, Justice Davis and Justice Scoggins. Memorandum Opinion by Justice Scoggins. Dissenting Memorandum Opinion by Justice Davis. The attorneys listed for the City are Charles D. Olson and C. Alfred Mackenzie. The attorney listed for Northcutt and the estate is Nicholas J. Nuspl.