                            Fourth Court of Appeals
                                   San Antonio, Texas
                                  DISSENTING OPINION
                                       No. 04-18-00286-CV

                    Jimmy MASPERO and Regina Maspero, Individually,
    and as Next Friends of Wyitt Maspero, Wynnsday Maspero, Wesley Maspero, Deceased,
                        and Walter Maspero, Deceased, Minor Children,
                                         Appellants

                                                 v.

                                   CITY OF SAN ANTONIO,
                                          Appellee

                   From the 285th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2014CI14946
                           Honorable David Peeples, Judge Presiding

              DISSENT TO DENIAL OF MOTION FOR EN BANC RECONSIDERATION

Dissenting Opinion by: Sandee Bryan Marion, Chief Justice

Sitting en banc: Sandee Bryan Marion, Chief Justice
                 Rebeca C. Martinez, Justice
                 Patricia O. Alvarez, Justice (not participating)
                 Luz Elena D. Chapa, Justice
                 Irene Rios, Justice
                 Beth Watkins, Justice
                 Liza A. Rodriguez, Justice

Delivered and Filed: November 13, 2019

       I respectfully dissent to the court’s order denying the appellee’s motion for en banc

reconsideration because the panel opinion conflicts with a prior opinion of this court and en banc

reconsideration is necessary “to maintain uniformity of the court’s decisions.” TEX. R. APP. P.

41.2(c).
Dissenting Opinion                                                                   04-18-00286-CV


        As the panel opinion notes, “Officer Kory was turning her car around in an attempt to

continue [her] pursuit” of the Suburban. “Officer Kory testified she heard the Suburban accelerate

past her and barely had time to radio the direction of the Suburban’s travel before she heard the

crash.” The panel opinion holds, however, the crash was not “so attenuated from Officer Kory’s

operation of her car to sever the causal nexus between her use or operation of a motor-driven

vehicle and the Masperos’ injuries.”

        In Lopez v. Escobar, No. 04-13-00151-CV, 2013 WL 4679062 (Tex. App.—San Antonio

Aug. 28, 2013, no pet.) (mem. op.), this court previously addressed attenuation in a case involving

the pursuit of a pickup truck by law enforcement officers. While being pursued by the officers,

the driver of the pickup truck drove across a median crossover before darting out in traffic and

crashing into another vehicle. Id. at *1-2. This court held the officer’s use of the patrol car in

pursuing the pickup truck was too attenuated from the crash, reasoning:

                Captain Martinez’s use of the patrol car—by following or “pursuing” the
        truck with his overhead lights on while driving below the speed limit, by following
        the truck into the median, by leaving the overhead lights on, and by leaving the
        engine running when he got out of the car—did not actually cause Escobar’s
        injuries. The unknown driver of the truck’s decision to try to flee by darting out
        into traffic caused the injuries. The only connection between the use of the patrol
        car and Escobar’s injuries is that Captain Martinez was attempting to initiate a stop
        of the vehicle with which Escobar collided. That fact alone is nothing more than
        mere involvement of the official vehicle and is an insufficient nexus to result in a
        waiver of immunity.

Id. at *6.

        Because I believe the panel opinion clearly conflicts with this court’s decision in Lopez, I

respectfully dissent to the court’s order denying the appellee’s motion for en banc reconsideration.

                                                  Sandee Bryan Marion, Chief Justice




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