In a case of first impression, the Corpus Christi Court of Appeals has held that a volunteer firefighter who struck two of his colleagues with his personal vehicle while driving home from the site of a fire is not covered by the election-of-remedies provision of the Texas Tort Claims Act. In John Weston Roades v. Lisa Henderson, Individually and as Independent Administratrix of the Estate of Steven Paul Henderson, Kinsley Hunderson, Koale Jaks, and Robert Popp(No. 13-20-00315-CV), plaintiffs sued Roades for negligence, alleging that Roades, driving his personal vehicle on FM 647, hit Henderson and Popp as they stood next to a fire department vehicle, killing one and severely injuring the other. Roades moved to dismiss pursuant to § 101.106(f), CPRC, which entitles an employee of a governmental unit to dismissal if the employee was acting in the general scope of employment at the time of the accident and the claim could have been brought against the governmental entity under the Tort Claims Act. Consequently, Roades argued that the plaintiffs’ suit was against him in his official capacity and that the fire department was the proper defendant. The trial court denied the motion to dismiss, and Roades appealed.

The court of appeals affirmed. It found that Roades, as a volunteer, did not meet the Tort Claims Act’s definition of “employee” because he is not in the governmental entity’s paid service. However, § 79.104, CPRC, provides that a volunteer firefighter is liable for damages only to the extent that an employee providing the same or similar services for a county would be liable. The statute also extends the protections of the Tort Claims Act to volunteer firefighters as if they were county employees, as long as damages for personal injury, death, or property damage arose from an error or omission of the volunteer fire fighter while involved in or providing an emergency response. The court of appeals held that because, by Roades’ own account, the fire was under control and he was returning to his home in his personal vehicle when the accident occurred, the plaintiffs’ damages did not arise while Roades was involved in or providing an emergency response. Roades, the court concluded, was not entitled to the “exclusions, exceptions, immunities, and defenses” available to an employee under the Tort Claims Act. Consequently, Roades could not invoke the Act’s election-of-remedies provision.

This case looks like a very close call to us. While it seems clear that Roades was on his way home after the fire had been put out, that he was not “involved in . . . an emergency response” does not automatically follow. The court of appeals’ analysis of the language of the statute focuses solely on the word “while” to the exclusion of the terms “involved in” or “providing.” This is not an unpublished memorandum opinion, so it will go into the books for all to see. Perhaps it’s a one-off case and will never be tested again. But would the outcome had been the same if Roades had been driving a fire department vehicle? What if he was permitted to park the fire department vehicle at his home? What if he had been driving his own vehicle but stopped at the fire department before going home? What if the facts were reversed and Roades was struck by the fire department vehicle after the fire had been put out? The opinion simply isn’t clear about what operative facts distinguish between being involved in or providing emergency services or not. We’d be careful about relying too much on this precedent.

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