Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Appellants, the city of San Angelo Fire Department and city firefighter Kelly Hood, were defending a suit brought by Sheila Hudson. The suit alleged personal injury and property damage caused by the operation or use of a motor vehicle by a governmental entity or employee under the Texas Tort Claims Act. Appellants asserted that, because the city and Hood enjoyed sovereign immunity and official immunity, the trial court erred in denying their motions for summary judgment. The suit arose out of an incident in which Hood drove a city pumper truck into an intersection against the light while was responding to a possible fire call. He believed that traffic was yielding to him, until Hudson entered the intersection at a speed of 25 miles per hour after observing that her light was green. In the intersection, the pumper truck collided with Hudson’s vehicle, which then spun around and collided with another vehicle, causing damage to the front and side panels of Hudson’s vehicle and to the left and front of the pumper truck’s bumper. HOLDING:Dismissed for want of jurisdiction in part; reversed and rendered in part. The court notes that a governmental unit is immune from suit and liability unless the state consents. But the court also notes that the Tort Claims Act waives sovereign immunity for damage and injury caused by the wrongful act or omission or negligence of an employee operating or using a motor vehicle within the scope of his employment. However, the court also states that under Texas Civil Practice & Remedies Code �101.055(2), this waiver does not apply where the claim arises from the action of an employee responding to an emergency call in compliance with applicable laws and ordinances. To establish the affirmative defense under �101.055(2) for the purposes of summary judgment, the court finds that appellants must prove Hood acted in compliance with the laws applicable to the emergency situation when he responded to the emergency call. The court found that the evidence showed that Hood was driving below the speed limit and significantly slowed as he was reaching the intersection, that he looked in both directions and observed that traffic had yielded to him before going through the intersection, and that because the traffic had yielded to him, he concluded it was best to move slowly through the intersection rather than coming to a complete stop because he would lose precious time as the truck takes a great deal of time to accelerate after stopping completely. Therefore, the court holds that appellants conclusively demonstrated that Hood complied with the applicable statutes and ordinances as a matter of law. Accordingly, the burden shifts to Hudson to raise a genuine issue of material fact regarding Hood’s compliance with the applicable statutes and ordinances. Hudson offers two witness affidavits as proof that Hood failed to follow applicable laws and ordinances and that he acted in conscious indifference or reckless disregard for the safety of others. Hudson also alleges that the damage to her vehicle and to the fire truck suggest Hood was speeding when he entered the intersection. But the court finds that neither affidavit raises a fact issue that Hood did not slow as necessary before proceeding through an intersection with a red light or acted with reckless disregard for the safety of others. Also, given the apparent substantial difference in weight between the truck and Hudson’s car, the court finds that Hudson’s evidence of damage to the fire truck and to her car, without more, is not enough to overcome the evidence Hood offered to prove he complied with the applicable statutes and ordinances. Consequently, the court holds that the waiver of sovereign immunity does not apply. Appellants next argue that they produced competent summary judgment evidence establishing that Hood acted in good faith in the performance of his discretionary duties within the scope of his authority and that Hudson failed to establish that no reasonable person in Hood’s position could have thought that the facts justified his action. Given the evidence of need and risk, the court agrees and holds that appellants have established that a reasonably prudent employee under the same or similar circumstances would have believed that proceeding through the intersection despite the red light was justified and that Hood acted in good faith. Having held that appellants conclusively established that Hood was performing discretionary acts in good faith within the scope of his employment, the court then holds that he was entitled to summary judgment on the affirmative defense of official immunity. Accordingly, the court reverses the order of the district court denying summary judgment to Hood on the affirmative defense of official immunity and renders judgment granting Hood’s motion. OPINION:Puryear, J.; Kidd, Patterson and Puryear, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.