Since officer’s affidavit did not detail his evaluation as he approached intersection, 4th Court of Appeals holds city did not establish emergency response application to tort suit

City of San Antonio v. Patrick Torres and Johnnie Dears 04-17-00309-CV (Tex.app —— San Antonio, Texas November 15, 2017)

This is a Texas Tort Claims Act (“TTCA”) case involving a vehicle accident where the San Antonio Court of Appeals affirmed the denying of the City’s plea to the jurisdiction.

Torres and Dears were passengers in a truck which was struck by Officer Galvan’s vehicle after the officer failed to yield at a stop sign intersection. Officer Galvan did not have his emergency lights on but testified he was responding to a call over the radio for “officer in trouble.”  Torres and Dears sued and the City filed a plea to the jurisdiction. In the plea, the City asserted Galvan was responding to an emergency situation and did not act with conscious indifference. The trial court denied the plea and the City appealed.

The laws applicable to emergency vehicles allow the operator of an authorized emergency vehicle to proceed past a stop sign “after slowing as necessary for safe operation.” Tex. Transp. Code §546.001(2), (3) (West 2011). Although the operator of an emergency vehicle has a duty to operate the vehicle “with appropriate regard for the safety of all persons,” liability is imposed only for reckless conduct  The Plaintiffs’ pleadings allege Galvan’s conduct was reckless or taken with conscious indifference.  Because the emergency call analysis is inextricably bound to the merits, the City bears the burden of establishing the elements for the defense. The City was required to present evidence establishing Officer Galvan was responding to an emergency call, complied with the laws applicable to an emergency, and did not operate his vehicle recklessly or with conscious indifference. Officer Galvan’s affidavit stated he “decided not to engage his lights or sirens” because he was in “close proximity to the dangerous situation” and did not want to escalate the situation or to spook or frighten the suspect and that he continuously evaluated the traffic conditions. However, the affidavit focused on his response to the emergency and did not establish he followed the laws or any facts as he approached and went through the intersection. Since the affidavit does not provide sufficient facts of what Officer Galvan did, evaluated, considered, and decided, at the intersection the City has not established the applicability of the emergency call exception.

If you want to read this opinion, click here. The panel consists of Justice Chapa Justices, Barnard and Horton. Justice Chapa delivered the opinion of the court. To see the attorneys listed for the Appellant and Appellee’s click here.