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Maspero v. City of San Antonio

Court of Appeals of Texas, Fourth District, San Antonio

August 28, 2019

Jimmy MASPERO and Regina Maspero, Individually, and as Next Friends of W.M., W.M., W.M., Deceased, and W.M., Deceased, Minor Children, Appellants

          From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2014CI14946 Honorable David Peeples, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice Irene Rios, Justice Beth Watkins, Justice



         This is an appeal from an order granting the plea to the jurisdiction filed by the City of San Antonio in a personal injury suit brought by appellants, Jimmy Maspero and Regina Maspero, Individually and as Next of Friend of their two surviving children and their two deceased minor sons. The Masperos argue the trial court erred in granting the plea because their pleadings and evidence raised a fact question about whether the City is immune from their suit. We agree, so we reverse the trial court's order and remand the cause to the trial court for further proceedings.


         The Masperos sued the City after a horrific car crash killed their three-year-old and one-year-old sons and severely injured them and their two surviving small children. Their petition alleged that on the day of the crash, San Antonio Police Department Sergeant Dominic Scaramozi and Officer Kimberly Kory assisted narcotic detectives by initiating traffic stops on people suspected of carrying drugs from a rural property believed to be a drug distribution center. The detectives contacted Sergeant Scaramozi and Officer Kory, who were waiting at a nearby gas station, and requested a traffic stop of a black Suburban as it left the rural property. The detectives radioed that the driver changed lanes without using a turn signal. Officer Kory responded, followed the Suburban and activated her lights. The Suburban slowed and pulled onto the right shoulder, but then suddenly sped up and onto the main lanes of Loop 1604.

         According to the petition, Officer Kory initiated an unauthorized chase of the Suburban, which traveled more than 100 miles per hour while weaving in and out of rush-hour traffic. Officer Kory continued the chase onto IH-35 South even though she did not believe she could catch the Suburban. She relayed details of the chase to Sergeant Scaramozi who did not give Officer Kory the authorization required by SAPD procedures to continue the chase. The Suburban drove down a grassy median and onto the frontage road; Officer Kory followed and exited the interstate at a speed of up to 94 miles per hour. The Suburban then drove through an intersection, lost control, and spun out. Officer Kory continued toward the location where she believed the Suburban had crashed when it suddenly emerged, driving toward her vehicle. To avoid impact, she veered off the right shoulder. The Suburban drove past Officer Kory and crashed head-on into the Masperos' Volvo.

         The Masperos alleged the City was liable for their injuries because Officer Kory and Sergeant Scaramozi's negligent and reckless actions proximately caused the crash. The City filed a plea to the jurisdiction, arguing it was immune from suit because there was no nexus between Officer Kory's use of her vehicle and the crash and also because no evidence that Officer Kory's response to this emergency situation demonstrated conscious indifference or reckless disregard for the public's safety. The trial court granted the plea. This appeal followed.


         Standard of Review

         Governmental immunity from suit defeats a court's subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 926-27 (Tex. 2015). When, as here, a plea challenges the existence of jurisdictional facts, our review mirrors that of a traditional summary judgment motion. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). The burden is on the governmental unit to produce some evidence to support its plea. Id.; Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). If the governmental unit meets this burden, then the burden shifts to the nonmovant to establish that a disputed material fact exists regarding the jurisdictional issue. Garcia, 372 S.W.3d at 635; Miranda, 133 S.W.3d at 227-28. We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Miranda, 133 S.W.3d at 228. If the evidence raises a fact issue regarding jurisdiction, the plea cannot be granted, and a fact-finder must resolve the issue. Id. Whether a trial court has subject matter jurisdiction is a question of law we review de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007).

         Use of a Motor-Driven Vehicle

         The Masperos contend the trial court erred in granting the City's plea on the basis that there was no evidence of a nexus between their injuries and Officer Kory's use of her vehicle. According to the Masperos, the evidence raises a fact issue regarding the causal relationship, waiving immunity under section 101.021 of the Texas Tort Claims Act (TTCA). The City contends that since Officer Kory's vehicle was not involved in the crash, the Masperos' injuries did not arise from the operation or use of a motor-driven vehicle.

         Applicabl ...

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