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Jarpe v. City of Lubbock

Court of Appeals of Texas, Seventh District, Amarillo

June 19, 2019

ALEXA MARIE JARPE AND JEREMY DAVID LEECH, APPELLANTS
v.
THE CITY OF LUBBOCK, APPELLEE

          On Appeal from the 237th District Court Lubbock County, Texas, Trial Court No. 2016-521, 302; Honorable Les Hatch Presiding

          Before QUINN, C.J., and PIRTLE and PARKER, JJ.

          MEMORANDUM OPINION

          Patrick A. Pirtle Justice.

         This case involves the "emergency exception"[1] to the general waiver of sovereign immunity for negligence actions involving the use of a motor-driven vehicle[2] found in the Texas Tort Claims Act. The trial court granted a plea to the jurisdiction in favor of Appellee, the City of Lubbock, in a negligence suit filed by Appellants, Alexa Marie Jarpe and Jeremy David Leech, for personal injuries they sustained when the vehicle in which they were riding was struck by a City of Lubbock police patrol vehicle. By a single issue, Alexa and Jeremy contend the trial court erred in granting the plea to the jurisdiction. We reverse and remand for further proceedings.

         Background

         Shortly before 10:00 p.m., on the evening of September 21, 2015, Alexa and Jeremy were involved in a motor vehicle accident when their vehicle collided with a City of Lubbock police patrol vehicle being driven by Officer John Cooke. At the time of the accident, Alexa was driving and Jeremy was a passenger. Alexa was attempting to turn left out of a grocery store parking lot, intending on heading west-bound on 4th Street, in Lubbock, Texas. At the same time, Officer Cooke was heading east-bound on 4th Street in response to an armed robbery that had occurred at a gas station located one-half mile east of the accident scene.

         At the time of the original robbery dispatch, Officer Cooke was responding to a shoplifting call at a Walmart store approximately one and one-half miles away from the scene of the robbery. A stationary dash cam video recording, reviewed by the trial court, shows Officer Cooke exiting his patrol vehicle and entering Walmart. A short time later, while still inside the business, Officer Cooke reported to dispatch that he would respond to the robbery in addition to the two other police officers already dispatched. At ten minutes and twenty-seven seconds, the dash cam recording shows Officer Cooke casually walking back to his patrol vehicle. The dash cam recording ends with Officer Cooke exiting the Walmart parking lot.[3] At that time, Officer Cooke made the conscious decision to respond to the robbery without the use of his patrol vehicle's emergency lights or siren in an attempt to avoid alerting the robbery suspect of his approach. In police lingo, this is known as an "invisible deployment." Because the dash cam recording of Officer Cooke's activities was deactivated once he left the Walmart parking lot, it does not depict his "invisible deployment" or the collision with the vehicle being driven by Alexa.

         Deposition testimony established that it is the policy of the City of Lubbock Police Department to always use the patrol vehicle's emergency lights and siren whenever exceeding the posted speed limit by an amount in excess of ten miles per hour. Here, although the posted speed limit in the area of the accident was forty-five miles per hour, Officer Cooke candidly conceded that he was traveling in excess of the speed limit by twenty-three miles per hour immediately prior to the collision. As such, he concedes that he was traveling more than thirteen miles per hour in excess of the City's policy for an invisible deployment.[4]

         In addition to disregarding the City's policy regarding excess speed and the use of emergency lights and sirens, Officer Cooke honestly admitted that, immediately prior to the accident, his eyes were also temporarily distracted from the road as he attempted to view his on-board mobile data computer (professionally referred to by police officers as their "MDC"). Whether this too was a violation of internal police policies was not clearly established because there was a discrepancy in the record regarding whether police department policies at the time prohibited an officer from viewing the MDC while a police patrol vehicle was in motion.

         The City of Lubbock filed a Plea to the Jurisdiction asserting governmental immunity pursuant to the "emergency exception" provision of the Texas Tort Claims Act. This provision provides, in relevant part, as follows:

         This chapter (the Texas Tort Claims Act) does not apply to a claim arising:

(2) from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others . . . .

See § 101.055(2).

         The City also alleged that Officer Cooke was protected by official immunity. Alexa and Jeremy filed a timely response asserting the City of Lubbock waived its governmental immunity by virtue of the use of a motor-driven vehicle. § 101.021(1)(A). The City responded that Officer Cooke was acting in the course and scope of his employment at the time of the accident and that he was reasonably responding to an emergency.

         Alexa and Jeremy contend that because Officer Cooke was not, in good faith, reasonably responding to an emergency, the exception did not apply because Officer Cooke's actions were not in compliance with the laws and ordinances applicable to an emergency action and his actions were taken with conscious indifference or reckless disregard for the safety of others. A hearing was held on July 6, 2017, ...


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