In police pursuit case, Texas Supreme Court holds 1) deviation from policy waives immunity only if lights or sirens are required, 2) officer exceeding the speed limit is part and parcel of a police chase and not not inherently reckless and 3) no independent waiver of immunity for negligent implementation of policy

 

City of San Antonio v Maspero, et al. 19-1144 (Tex. Feb. 18, 2022)

This is a Texas Tort Claims Act (“TTCA”) vehicle accident case where the Texas Supreme Court dismissed the Plaintiffs’ claims for lack of jurisdiction.

Plaintiffs contend that their injuries arose from a San Antonio police officer’s vehicular pursuit of a fleeing suspect who crashed into their car. The chase resulted from a joint drug task force attempted to stop a car leaving suspected drug trafficking ring location. Officer Kimberly Kory was assigned to assist with the investigation. When the suspect began to flee, the task force requested assistance but did not provide any specifics about how to respond to the fleeing vehicle. SAPD’s “General Manual” contains detailed procedures governing the vehicular pursuit of such suspects.  The record demonstrated the suspect sped in heavy traffic and through active school zones. The suspect got turned around and sped past Kory, missing her vehicle, but collided with an oncoming vehicle, carrying the Plaintiffs.  They sued the City, which filed a plea to the jurisdiction.  The City asserted the emergency response exception to the waiver of immunity.  The trial court granted the plea, but the court of appeals reversed.

Under Texas Transportation Code Section 546.006, a driver of an emergency vehicle must drive “with appropriate regard for the safety of all persons” and is not relieved of “the consequences of reckless disregard for the safety of others.” Section 546.003 states “the operator of an authorized emergency vehicle engaging in conduct permitted by Section 546.001 shall use, at the discretion of the operator in accordance with policies of the department or the local government that employs the operator, audible or visual signals.”  Plaintiffs argued that since Kory deviated from the SAPD policy on such pursuits, she cannot take advantage of the Transportation Code section. The Court disagreed, holding §545.003 only required adherence to policies regarding use of lights and sirens. At the point where the suspects collided with the Plaintiffs’ vehicle, Kory was not speeding or taking action which would have required lights and sirens. Further, the court found the use of her siren was inconsequential for purposes of the causal nexus. Plaintiffs failed to explain how their injuries arose from Officer Kory’s alleged failure to use her siren in conjunction with the lights.  Based on the undisputed facts asserted, the use of a siren would not have changed the collision. Further, the court does not believe Kory’s actions constitute recklessness or even that a fact question exists. Law enforcement must retain discretion to assess and balance these types of risks using reasoned judgment.  Kory had specific instructions to stop the suspect. She did not chase him into an obviously dangerous area or force him to crash. Isolated, minor instances of Kory speeding or swerving do not bypass the emergency exception under the TCAA. A police officer’s speeding and swerving during a pursuit are not inherently reckless actions. Exceeding the speed limit is part and parcel of a police chase.  Further, no evidence suggests that the speeding itself was a cause of the crash.  Further, the evidence shows Kory engaged in some degree of risk assessment while in pursuit.  Finally, the Court disagreed with the court of appeals holding that the City’s immunity is waived for the negligent implementation of policy. The Court clarified there is no independent waiver of immunity for negligent implementation of policy.  When a waiver already exists, but the discretionary exception may apply, that is when the distinction between negligent formation of policy and negligent implementation of that policy kicks in.  The distinction only applies when evaluating whether the discretionary exception to an existing waiver is to apply. As a result, in this case, there is no waiver of immunity and the trial court’s order is reinstated.

If you would like to read this opinion click here. Opinion by Justice Lehrman.