An attorney defending Kendall County and Sheriff Al Auxier against a lawsuit claiming a volunteer in a training exercise was hurt by deputies says the legal action has no merit.
The volunteer, Matthew Dietz of Hidalgo County, filed the lawsuit last month in which he said he suffered injuries during an active-shooter exercise two years ago at a Boerne church.
In a response to the petition, J. Eric Magee of Allison, Bass & Magee in Austin claims Dietz cannot sue the sheriff nor his office because Auxier’s office is not a legal entity subject to such an action.
Magee’s petition said Dietz failed to prove the Sheriff’s Office is a separate unit of government or a political entity from the county.
Magee’s filing also claims Dietz withheld information about his own actions during the drill.
“Plaintiff’s claims are barred by plaintiff’s own negligent and/or intentional acts and/or omissions,” Magee’s response reads. “Plaintiff should not be permitted to recover from defendants for his own failure to act responsibly and exercise the required duty of care to other participants in the voluntary training exercise.”
The Austin attorney’s response also claims the suit filed against Kendall County is invalid because Dietz failed to present his claim to Commissioners Court, leaving the court a chance to “pay all or part of the claim before the 60th day” after his presentation.
Dietz is seeking up to $250,000 in relief after volunteering to participate in the drill at Boerne First Baptist Church March 12, 2021.
Dietz’s attorney, Dennis Ramirez of Donna, filed the suit March 10 in the 451st state District Court.
According to Dietz’s petition, “While in the course of participating in the active-shooter training exercise on March 12, 2021, plaintiff Matthew Dietz was excessively physically manhandled, grabbed and thrown about…” The civil petition alleges deputies caused Dietz to hit the ground, a wall and nearby objects.
“The (deputies’) extreme conduct was outside the course and scope of the training exercise being conducted and rose to the level of a physical assault on (the) plaintiff,” according to the filing.
Dietz said he suffered a broken nose and a tear to his right shoulder requiring several surgeries.
In addition, Dietz suffered “severe traumatic personal injuries,” racked up medical expenses and lost work time resulting in missed wages, according to the filing.
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