The line determining discretionary duties verses ministerial duties should not be drawn based on whether there is a specific statute in place. Instead, the line should be drawn based upon the nature of the situation, emergency versus non-emergency.
Houston, TX (PRWEB) March 09, 2012
J. Edward Allen of Wilhite & Lea, P.C. was named by Texas Lawyer as the Texas Appellate Lawyer for the week of March 5 through March 9, 2012, for his work in Houston's Fourteenth Court of Appeals reversing the trial court’s decision in David Jenkins v. City of Houston (Cause No. 2009-13235).
The case involved Allen’s client, David Jenkins, a Montgomery County Deputy Sheriff who sued the City of Houston and Houston Police Officer David Thomas after he was seriously attacked and mauled by a police dog trained for law-enforcement work, named Rudy, under Thomas’ supervision on May 4, 2007.
The trial court, the 152nd District Court in Harris County, found that the handler of the dog was performing a discretionary duty, as opposed to a ministerial duty, while in the course and scope of his employment because there were no laws with requirements how to restrain police dogs. Since the court found the handler had official immunity because the duty was discretionary, the court granted a motion for summary judgment in favor of the City of Houston.
Houston civil litigation lawyer, J. Edward Allen states, “The line determining discretionary duties versus ministerial duties should not be drawn based on whether there is a specific statute in place. Instead, the line should be drawn based upon the nature of the situation, emergency versus non-emergency.”
Allen and his client appealed the court’s decision arguing the emergency versus non-emergency test allows relief to private citizens, yet still affords governmental protection when most appropriate. Allen additionally argued official immunity did not bar his client’s claims since Thomas was performing a ministerial act rather than a discretionary act when Thomas walked Rudy back to his vehicle. Also, governmental immunity is waived in Texas for claims involving the negligent use of tangible personal property under the Texas Tort Claims Act.
The Fourteenth Court of Appeals agreed that the City failed to conclusively establish the function was discretionary, that Thomas was entitled to official immunity or that the City’s governmental immunity was not waived under the Texas Tort Claims Act. The Court’s majority opinion in favor of Jenkins was issued on February 14, 2012. The case has been reversed and remanded to trial court.
According to Houston dog attack injury attorney J. Edward Allen, “If the attack would have occurred during the search, during an emergency, then official immunity would apply and we would not have had a case. However, the emergency was over, the suspect was apprehended and everyone was simply walking back to their cars. So the function was ministerial, and immunity should not apply.”
Each week the Texas Lawyer selects one attorney currently practicing in the state of Texas as Texas Appellate Lawyer of the Week and highlights the awarded persons work on a difficult case. Texas Lawyer is an association of Texas Lawyer by Law.com.
J. Edward Allen is a North Houston personal injury lawyer at Wilhite & Lea, P.C. The personal injury attorneys at Wilhite & Lea, P.C., represent individuals who have been injured by a dog bite or canine attack throughout Harris County including Houston, Northwest Houston, Champions, Spring, Tomball, Klein, the FM 1960 area, as well as the Woodlands and Conroe in Montgomery County. Call (281) 537-2171 immediately to schedule a free consultation with J. Edward Allan if you have experienced a dog bite injury and would like to discuss your case with an animal attack attorney in Houston, TX.