Lack of due care finding by accident review board is evidence only of negligence, not recklessness under emergency responder exception to TTCA

Harris County v. George J. Spears, 14-17-00662-CV (Tex. App. – Houston [14th Dist.], September 25, 2018)

This is an interlocutory appeal where the Fourteenth Court of Appeals reversed the denial of the County’s plea to the jurisdiction in this emergency responder/vehicular accident case and rendered judgment for the County.

While responding to an emergency call (i.e. possible suicide and medical emergency), Deputy Corporal Baskins collided with Spears at an intersection. As Baskins approached the intersection he slowed almost to a complete stop.  The cars moved to permit Deputy Baskins to proceed through the intersection. As Baskins drove through the intersection, a vehicle driven by Spears hit the rear passenger side of his patrol vehicle. The vehicle’s siren clearly can be heard in the dash cam video.  The County’s accident review board noted Baskins failed to use “due care” by not clearing the intersection first and issued a 1-day suspension. The County filed a combined motion for summary judgment and plea to the jurisdiction, which the trial court denied. The County appealed.

The emergency responder provision of the Texas Tort Claims Act (“TTCA”) retains immunity unless a responder drives with “reckless disregard for the safety of others.”  The burden of proof is on the plaintiff to show that the emergency response exception does not apply.  The term “emergency” is interpreted broadly under the TTCA.   Deputy Baskins’s affidavit stated the importance to preserve the scene before family arrive and the varying needs when responding to such calls. The evidence established an emergency existed. Further, Spear’s arguments do not justify limiting the emergency response exception to preclude application to a backup responder to a priority two call. The evidence shows that Deputy Baskins was not acting with reckless disregard at the time of the collision. The accident review board’s reprimand does not create an issue of fact regarding recklessness — rather, the board’s conclusion that Deputy Baskins “failed to exercise due care” is evidence only that Deputy Baskins acted negligently in entering the intersection.  As a result, the County’s dispositive motions should have been granted.

If you would like to read this opinion click here. Panel consists of Justice Boyce, Justice Donovan and Justice Wise. Memorandum Opinion by Justice Boyce.  The attorney listed for the County is Patrick Nagorski.  The attorneys listed for Spears are Christina Minshew Lewis and Nichole Marie Nech.