Strong Arm Loses to Dallas Fire

A prominent Dallas personal injury attorney has lost his lawsuit against the Dallas Fire Department over a 2008 apparatus accident.

Brian Loncar, who advertises himself extensively on television as “The Strong Arm”, was driving his new $180,000 Bentley in May, 2008 when he collided with a Dallas engine that was responding to an alarm at a local Home Depot.

According to a witness “Loncar ‘was accelerating into the intersection’ and, in the witness’s opinion, Loncar was trying to ‘beat’ the yellow light. Another witness stated Loncar ‘did not yield’ to [the] engine.” The Bentley was totaled and the engine sustained significant damage.

Loncar sued claiming the engine driver "accelerat[ed] from the middle of the left turn and never brak[ed]..[which was] dangerous because the driver admits he saw Loncar approaching the intersection." The department sued Loncar for damages to the engine.

Last Thursday, the Texas Court of Appeals for the 5th District concluded that Loncar’s suit could not proceed because the driver of the apparatus and the city were protected by official immunity.  As explained by the court:

Official immunity is an affirmative defense. … A governmental employee has official immunity for the performance of discretionary duties within the scope of the employee’s authority, provided the employee acts in good faith. … Loncar does not dispute that Ferguson was performing a discretionary duty and acting within the scope of his employment. Thus, as Loncar concedes in his brief, the only question in this appeal is “whether the City conclusively established that Ferguson acted in good faith.”

The record shows the need to which Ferguson was responding was a potentially life threatening fire at Lowe’s Home Improvement. Ferguson’s engine was the closest available firefighting equipment to Lowe’s, and its immediate presence was necessary to prevent injury or loss of life in the fire. Ferguson drove in the left-turn-only lane because it was the only option available allowing him to continue westbound on Lemmon in response to the emergency call. On the other hand, the risks involved were that Ferguson’s engine would collide with another vehicle or vehicles, resulting in serious injuries or death. However, the road was dry, rush hour had ended, and Ferguson was operating his emergency siren, horn, and lights. Although Ferguson saw Loncar traveling on Lomo Alto, the other cars on Lomo Alto had stopped and yielded the right-of-way to Ferguson. We conclude this evidence conclusively established Ferguson acted in good faith.

Besides dismissing the case the judge ordered Loncar to pay court costs.

Apparently content to kick a fellow Texas attorney when he is down, The Kielich Law Firm posted on it’s blogEven the strong arm can't muscle past qualified immunity”. … note the court based its ruling on “official immunity” not qualified immunity.

Here is a copy of the ruling: Dallas v. Loncar

 

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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