You have seen at least one of Brian Loncar’s advertisements as the “Strong Arm” personal injury lawyer. His ads have run for at least a decade for his high volume personal injury firm in Dallas. Loncar got into a car wreck in Dallas (or Highland Park) with a Dallas Fire Department Fire Engine. Loncar claimed the driver of the Dallas fire engine was at fault. Dallas blamed Loncar. Loncar filed suit.
Dallas filed suit back claiming protection from liability for the acts of the driver under qualified immunity. Last week a Texas appellate court ruled Loncar could not recover against Dallas under qualified immunity. The then court dismissed Loncar’s suit and ordered him to pay Dallas’s court costs. (You can read more about this story by going here.) So let’s talk about qualified immunity and why it matters if you are in an accident with a government vehicle.
What is qualified immunity in Texas?
Under the federal and state constitutions, the federal government and state government (along with its subdivisions: counties and cities), their officials and employees are immune from being sued under a doctrine known as sovereign immunity. However, this complete sovereign immunity has been reduced to qualified immunity through the acts of Congress, at the federal level, and the state legislature at the state level. In Texas, sovereign immunity has been waived by the Texas Tort Claims Act, which permits claims against Texas, state-level public agencies and its political subdivisions. The Texas Tort Claims Act, or TTCA, makes certain types of personal injury (or tort) claims available with specified monetary recover limits against the state. The waivers of sovereign immunity by the TTCA (and other federal and state laws) qualifies the immunity, which is why it is qualified immunity.
To sue Texas or one of its subdivisions for a personal injury type claim, you must have a claim that falls within the Texas Tort Claims Act or another waiver of immunity. Personal injury claims normally have to meet the TTCA’s waiver of immunity. If a public official or employee acts outside of the scope of their job responsibilities then no immunity may apply. That individual may face a lawsuit individually.
What claims fall under the Texas Tort Claims Act?
Claims under the TTCA generally only apply to negligence claims. The TTCA generally does not waive claims that government employees or officials acted intentionally to harm other individuals. Claims may also be outside of the TTCA when the responsible individual acts outside the scope of job responsibilities. Let’s just focus on the claims related to car wrecks and how qualified immunity may shield certain claims. A plaintiff bringing claims must prove immunity does not exist. In car wrecks, the immunity is normally waived when the responsible individual was negligent in performing his or her job duties and that caused the plaintiff’s injuries. (However, vehicle-related injuries are the only type of claims legitimately brought against a school district.)
Exceptions to TTCA
We discussed the general rule above; however, there are several exceptions to the TTCA’s waiver of immunity that can relate to a car wreck caused by a government employee.
- Emergency exception. Government employees are immune from suit where the employees are responding to an emergency situation, such as a 911 call. This exception is not limited to first responders. It can apply to any type of emergency situation, such as a natural disaster or emergency property situation. The exception does not apply if the employee acts outside the emergency-action law or acted with reckless disregard of public safety.
- Safety officer exception. The government is immune to suit for the conduct of police officers and firefighters performing their job duties to the extent they act in accordance with establish codes of conduct or other policies. This exception applies to what the first responders do, not what they fail to do.
- Discretionary action exception. The government enjoys immunity for injuries caused by inaction if: (1) the individual did not have to take action; and (2) the individual had discretion how to act.
- Intentional act exception. The government is generally immune for intentional acts, even if the employee acts intentionally to harm the individual. Claims may be available against the individual where the acts fall outside of the scope of employment. Federal Section 1983 may apply.
In Loncar’s situation, Dallas raised these exceptions to his claims. The appellate court agreed that the driver of the fire engine was operating under the emergency exception. The engine was responding to a fire and the driver’s conduct was not in reckless disregard of public safety. Below is the appellate court’s opinion.
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