Police officer’s need to reach site of 911 call justified actions of entering intersection in course and manner – immunity therefore preserved

 

Jason Roche v. City of Austin, 03-17-00727-CV (Tex. App. – Austin, August 21, 2018).

This is a vehicle accident/Texas Tort Claims Act (“TTCA”) case were the Austin Court of Appeals affirmed the granting of a dismissal order.

Police Officer Nguyen was responding to a 911 call that a man brandishing a knife was threatening people in the Dollar General Store parking lot. While in route he collided with the pickup truck driven by Roche. As the officer approached an intersection, the traffic light was red, and traffic was stopped in all lanes in his direction. To proceed, the Officer elected to drive over the median dividing the eastbound and westbound lanes. Roche entered the intersection under a yellow light. Although Roche heard the emergency siren before he proceeded into the intersection, he did not see the police car until it was too late. The Officer was later reprimanded for violating department policies on how to respond to such calls.  Roche sued the City.  The City filed a motion for summary judgment asserting immunity, which was granted. Roche appealed.

Under the emergency exception provision of the TTCA, no waiver of immunity exists  if: (1) the employee was responding to an emergency; (2) the employee was acting in compliance with applicable laws and ordinances governing the employee’s response; or (3) in the absence of such a law or ordinance, the employee did not act with conscious indifference or reckless disregard to the public’s safety. The emergency exception provision is designed to balance the public’s safety with the need for prompt response from public-safety personnel. Imposing liability for a simple failure in judgment could deter emergency personnel from acting decisively and from taking calculated risks. Emergency exception provision is intended to prevent judicial second-guessing of split-second and time pressured decisions emergency personnel are forced to make. The court held  “the Officer’s timely presence at the store was crucial to protect the safety, and perhaps lives, of these people. The need to reach the Dollar General premises as quickly as possible was manifest.”  The court analyzed the “laws” and “ordinances” governing the Officer’s response under the Texas Transportation Code.  Section 546.001 allows, among other acts, the operator of an emergency vehicle to “proceed past a red or stop signal or stop sign, after slowing as necessary for safe operations,” and to “disregard a regulation governing the direction of movement or turning in specific directions.”  A police department’s internal policy or procedure is not a “law” or “ordinance” for purposes of waiver of immunity, so the reprimand is irrelevant.  Witnesses stated no other vehicles were in the intersection when the Officer entered it. The Officer was driving “relatively slowly” and slowed down before he entered the intersection, the Officer took his foot off the accelerator before entering the intersection, and Roche entered the intersection at a “relatively fast” pace, without hesitation. After reviewing the submitted evidence the court held the summary-judgment record establishes, as a matter of law, that the Officer complied with the laws applicable to the emergency situation. The judgment was affirmed.

If you would like to read this opinion click here. Panel consists of   Justice Puryear, Justice Pemberton and Justice Shannon. Memorandum Opinion by Justice Shannon. The docket page with attorney information is found here.