Texas Court of Appeals Rules LODD Accident Case May Proceed Against Firefighter

A Texas court has refused to dismiss a lawsuit filed against a volunteer firefighter who struck two other firefighters, killing one of them. Steven Paul Henderson and Robert Popp were struck by John Weston Roades on October 7, 2019. Henderson, 60, died from his injuries.

All three firefighters had just responded to an emergency on behalf of the Louise Volunteer Fire Department and were clearing the scene.  Henderson and Popp were on a tanker that cleared the scene and were headed back to quarters. They pulled over to inspect the front tires when they were struck by a pickup truck being operated by Roades, who has similarly just left the scene.

Henderson’s family and Popp filed suit against Roades alleging negligence. Roades sought to have the case against him dismissed because:

  • he was an employee of a governmental unit;
  • he was acting in the general scope of employment at the time of the accident; and
  • the claim could have been brought against LVFD under the TTCA [Texas Tort Claims Act].
  • Accordingly, Roades contended that the suit was against him in his official capacity only and that LVFD was the proper defendant.

The trial court refused Roades’s request, concluding since he was headed home he was no longer engaged in an “emergency response.” That prompted Roades to appeal to the Texas Court of Appeals for the Thirteenth District. In upholding the trial court’s decision, the Court of Appeals held:

  • Whether the TTCA’s election-of-remedies provision applies to a volunteer firefighter is an issue of first impression that requires this Court to interpret the relevant statutory provisions.
  • We first observe that the Legislature did not include travel from the scene of a fire within the definition of “emergency response.
  • Here, by Roades’s own account, “the fire was under control” and he was travelling home in his personal vehicle when the accident occurred. Thus, it is undisputed that Roades was not involved in or providing an emergency response during or at the time of the accident. Accordingly, Roades is not entitled to the “exclusions, exceptions, immunities, and defenses” applicable to an employee under the TTCA.
  • For the foregoing reasons, we conclude that Roades has not established that he can be considered an employee of a governmental unit as required to invoke dismissal under §101.106(f).
  • Therefore, the trial court did not err in denying his motion to dismiss.

Here is a copy of the decision:

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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