Tomorrow the Texas Supreme Court will hear oral arguments in The City of Austin v. Noel Powell (No. 22-0662; review granted January 26, 2024), which arose from a collision between a motorist and two Austin Police Department officers engaged in a high speed chase. The injured motorist sued the City of Austin, asserting negligence. The City filed a plea to the jurisdiction, asserting immunity under the “emergency exception” to the Texas Tort Claims Act (§ 101.055(2)). The trial court denied the plea. The City filed an interlocutory appeal.
The court of appeals affirmed. The question before the court was whether plaintiff raised a genuine issue of material fact that defeated the city’s immunity under the emergency exception. That exception applies when an employee of the governmental entity, responding to an emergency call or reacting to an emergency situation, acts “in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others.” First, the court determined that the officers were responding to an emergency, a “shots-fired” incident. The court, however, held that plaintiff raised a fact issue as to whether the officers’ emergency action complied with applicable laws and ordinances. Citing various sections of Chapter 546, Transportation Code, the court concluded that, while emergency responders owe a duty not to act negligently, liability may only be imposed for “reckless” conduct. This requires a showing of willful or wanton disregard for the safety of persons or property and that the driver acted with conscious indifference when he or she knew or should have known the conduct posted a high degree of risk of serious injury (citations omitted).
Whether the driver acted recklessly must be determined by the totality of circumstances. Here the two police cars collided when the leading car suddently turned right into the path of the second car. The officer driving the second car was unable to slow down quickly enough to avoid a collision. The two cars collided and “locked together.” As they spun out, the second car struck the motorist’s minivan, which was sitting at a stop sign. Observing that the officer driving the second vehicle arguably failed to maintain a safe distance in violation of the Transportation Code, and evidence in the record (in the form of the police report) that he was inattentive and failed to control his speed, the court concluded that the evidence at least raised a fact issue as to whether the officer “’knew or should have known’ that his actions during the pursuit ‘posed a high degree of risk of serious injury’ and were thus reckless.”
This case appears to us to be a close call, especially given the serious nature of the emergency to which the officers responded (a shooting incident). We will see what SCOTX does with it.
