AUSTIN – The Texas Supreme Court recently opined that a City of Mesquite police officer was acting in good faith when his dog unexpectedly bit a suspect fleeing from a burglary scene.
Anthony Wagner sued Mesquite in 2022, alleging his injury was caused by an officer’s negligent handling of Kozmo – a police service dog that carried multiple agency certifications assuring proper obedience and control in response to commands.
Court records show that officers from the Garland Police Department were dispatched to a commercial building in response to a burglary-in-progress call. An officer from Mesquite was called in for assistance. When he arrived, he was advised of the need to pursue fleeing suspects on foot. Kozmo was deployed.
Wagner was told to stop and get to the ground. He slowly compiled but yelled back at an officer, who then attempted to handcuff him on the ground. Kozmo’s handler shortened his lead and moved him to his left in pursuit of the other suspects.
Kozmo, however, abruptly cut across the officer’s path toward Wagner, causing him to trip and fall. Kozmo then bit Wagner on the shoulder. Wagner was treated at the scene and later at a nearby hospital for a single dog bite, court records state.
Wagner argued the city’s governmental immunity had been waived under the Texas Tort Claims Act because the officer had not acted in good faith.
Court records show the trial court denied the city’s plea to the jurisdiction and the ruling was affirmed on appeal.
On May 2, the Texas Supreme Court reversed the ruling, holding that the city presented adequate evidence to establish that the officer was protected by official immunity at the time of Wagner’s injury.
Justices found the city presented adequate evidence because the officer chose to pass Wagner on the left, “as the only apparent alternative would have required him to traverse unstable terrain in the dark while pursuing at-large criminal suspects.”
“At best, Wagner presented evidence of negligence by (the officer), but evidence that he ‘may have acted negligently, or did not consider and assess all possible subsidiary alternatives,’ is not sufficient to overcome proof of good faith,” the opinion states.
“Thus, Wagner did not satisfy the ‘elevated standard of proof’ required to controvert the City’s evidence of (the officer’s) good faith.”
Attorney Joe Tooley represents the city.
Wagner is represented by attorney Niles Illich.
Case No. 23-0562