CORPUS CHRISTI — The Texas Military Department has governmental immunity from a lawsuit brought over an automobile collision allegedly caused by a member of the Army National Guard, the 13th Court of Appeals has opined.
Justices affirmed the immunity ruling on Oct. 22, finding that the Texas Tort Claim Act’s waiver of immunity does not apply to the TMD’s employee’s negligence.
The lawsuit was brought by Emmanuel Gonzalez, who alleges the collision occurred when the employee merged onto the highway and failed to control his speed, colliding into the rear of Gonzalez’s vehicle.
A Texas peace officer’s crash report faulted the employee for failing to control his speed, court records show.
According to TMD, the accident occurred after its adjutant general ordered the employee to go to the “South Texas Region” to support Joint Task Force – Operation Lone Star.
The employee stated he was in uniform at the time of the accident and was only in the area where the accident occurred as “a result of my military orders.”
Gonzalez filed a lawsuit alleging negligence and TMD filed an answer asserting it retained sovereign immunity, along with a plea to the jurisdiction and motion to dismiss arguing the motor-vehicle waiver of immunity did not apply because the employee was on active duty at the time of the collision, and, therefore, the claim arose out of activities of the state military forces, the opinion states.
Gonzalez argued that traveling to work is not an act within the course and scope of employment, but the trial court granted the plea and motion to dismiss.
On appeal, Gonzalez argued the trial court erred.
“In sum, we hold that Gonzalez’s claim arises from the activities of the state military forces because (the employee) was on activity duty pursuant to the adjutant general’s orders and following specific oral orders the morning of the accident,” the opinion states.
“Therefore, we conclude that, even when construing the facts in a light most favorable to Gonzalez, the TTCA’s waiver of immunity does not apply to (the employee’s) negligence.”
Appeals case No. 13-26-00281-CV
