Black v. Nueces County Rural Fire Prevention District No. 2

695 S.W.2d 562, 28 Tex. Sup. Ct. J. 553, 1985 Tex. LEXIS 1472

• Court: Texas Supreme Court
• Decided: July 10, 1985
• Docket: C-4154
• Status: Published

Opinions

ROBERTSON, Justice.

This cause presents a question of interpretation of the Texas Tort Claims Act. Tex.Rev.Civ.Stat.Ann. art. 6252-19 (Vernon 1970). The Nueces County Rural Fire Prevention District No. 2 provides fire protection under a contract with the City of Corpus Christi. Ron Black, a volunteer fireman, was struck and injured by a fire truck as it backed into position at the scene of a fire.

Mr. Black obtained judgment, based on favorable jury findings, against the Fire Prevention District and the City. The court of appeals reversed and rendered, holding that the Texas Tort Claims Act did not waive sovereign immunity under the facts of the case. 693 S.W.2d 492. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

The waiver of sovereign immunity in the Texas Tort Claims Act, Tex.Rev.Civ.Stat. Ann. art. 6252-19 § 4 (Vernon 1970), extends to situations involving “use of a motor-driven vehicle ... under circumstances where [the] officer or employee [of the unit of government] would be personally liable to the claimant in accordance with the law of this state.” Tex.Rev.Civ.Stat.Ann. art. 6252-19 § 3(b) (Vernon Supp.1985). The instant cause falls squarely within this provision. The waiver of liability, however, is “subject to the exceptions contained herein.” Id.

The Fire Protection District and the City assert, and the court of appeals agreed, that this situation is controlled by the exception set forth in Tex.Rev.Civ.Stat.Ann. art. 6252-19 § 14(8) (emphasis added):

“The provisions of this Act shall not apply to: ... (8) Any claim arising out of the action of an officer, agent or employee while responding to emergency calls or reacting to emergency situations when such action is in compliance with the laws and ordinances applicable to emergency action.”

Testimony from the training chief of the Corpus Christi Fire Department, however, established that there were no laws or ordinances pertaining to this emergency situation. In the absence of laws or ordinances applicable to emergency action, there is no exception to the waiver of sovereign immunity. The District and the City in this case are thus liable for the negligence of their employees. This conclusion follows from the plain language of the statute: The District and the City could not comply with an ordinance unless an ordinance in fact existed.

The court of appeals viewed subsection 8 as exempting emergency action from liability unless that action violated a law or ordinance. That interpretation is contrary to the clear language of subsection 8, when read in conjunction with the waiver of immunity contained in sections 3 and 4. It is also contrary to the act’s mandate of liberal construction. See id. § 13.

Fot this reason, the judgment of the court of appeals is reversed and the judgment of the trial court is affirmed.

HILL, C.J., dissents with opinion in which McGEE and GONZALEZ, JJ., join.