Summary
holding school bus driver's failure to supervise child who jumped out of moving school bus was not operation or use of the school bus
Summary of this case from San Antonio Indep. Sch. Dist. v. HaleOpinion
NO. 03-14-00209-CV
04-14-2016
Austin Independent School District, Appellant v. Idolinda Salinas, Individually and as Next Friend of A.M.L., Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. D-1-GN-13-002874, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDINGMEMORANDUM OPINION
Appellee Idolinda Salinas, individually and as Next Friend of A.M.L, brought suit against the Austin Independent School District under the Texas Tort Claims Act (TCA), see Tex. Civ. Prac. & Rem. Code §§ 101.001-.109, to recover for injuries her son A.M.L. sustained after he opened the back exit door and jumped from the back of a moving school bus. The District filed a plea to the jurisdiction based on governmental immunity. After Salinas filed an amended petition, the District filed an amended plea to the jurisdiction also based on governmental immunity, and the trial court denied the District's amended plea. The District then perfected this interlocutory appeal. See id. § 51.014(a)(8). Because we conclude that the District is immune from Salinas's claims, we reverse the trial court's denial of the District's amended plea and render judgment dismissing this case for want of jurisdiction.
BACKGROUND
The recited facts are taken from Salinas's amended petition. Because the District's amended plea to the jurisdiction challenged jurisdiction based on her pleadings and not on the existence of jurisdictional facts, we take the facts as presented in her amended petition as true. See Westbrook v. Penley, 231 S.W.3d 389, 405 (Tex. 2007).
In August 2011, A.M.L., who is a child with a disability, was on a District school bus returning home at the end of the day. When the bus passed his stop, he asked the bus driver to pull over and let him out, but the bus driver did not stop the bus. He then unsuccessfully tried to climb out a window and "walked to the back of the bus." After standing at the back of the bus for "a significant amount of time," he "opened a handle on the back exit door, triggering a buzzer, that let the driver know that someone was trying to open the door." When the back exit door was "fully opened," he "jumped out" of the moving bus through the open door and suffered injury. After the bus driver saw A.M.L. on the ground, she pulled the bus to the side of the roadway and stopped.
Salinas sued the District seeking to recover for A.M.L.'s injuries and alleging negligence pursuant to section 101.021(1) of the TCA. See id. § 101.021(1). Salinas alleged negligent acts by the District's bus driver, including the driver's failure to (i) "keep a proper lookout for Plaintiff's safety," (ii) "drive attentively," (iii) "timely apply [the] brakes," and (iv) drive at a safe speed "for the circumstances and conditions." Salinas also alleged negligence per se based on Transportation Code violations. The District answered and filed a plea to the jurisdiction, contending that the facts as alleged by Salinas did not invoke the limited waiver of immunity under the TCA.
Section 101.021(1) of the TCA states:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; . . .
After the District filed its plea, Salinas filed an amended petition, adding claims concerning the bus driver's use or misuse of specific parts of the bus. In her amended petition, she alleged the following negligent acts by the bus driver:
• failing to use the rear-view mirror correctly when she saw A.M.L. and other students standing in the bus;Her pleaded facts included that the bus driver "specifically admit[ted] she did not look in her mirror and see A.M.L. standing up, did not see the door opening, did not see the door open and did not see A.M.L. jump" and that the bus driver "continued driving with her foot on the gas pedal. It is reasonably believed that she did so at a rate of at least 25 miles per hour and up to 50 miles per hour."
• failing to respond to the buzzer, "which let her know that the exit door of the bus was beginning to open";
• failing "to apply her brakes when she knew or should have known A.M.L. was attempting to exit the vehicle";
• driving the vehicle "at a speed greater than is reasonable and prudent under the conditions present"; and
• failing "to drive attentively."
Salinas also maintained her allegations asserting that the District had a duty to operate its school buses in compliance with the Transportation Code and claimed negligence per se based on the following violations of the Transportation Code:
• operating the bus "while the door of the school bus was open" in violation of Transportation Code section 545.426(a)(1);See Tex. Transp. Code §§ 545.351(a), (b)(1), .426(a)(1), (b)(1). She further alleged that the complained-of conduct by the bus driver proximately caused A.M.L.'s injuries.
• operating the bus "while failing to prohibit passengers from standing in the bus" in violation of Transportation Code section 545.426(b)(1);
• driving "without excuse, . . . at a speed greater than is reasonable and prudent under the circumstances then existing" and "having regard for actual and potential hazards then existing" in violation of Transportation Code section 545.351(a) and (b)(1).
After Salinas amended her petition, the District filed an amended plea to the jurisdiction on the same grounds as it did in its initial plea but also addressed Salinas's amended petition. The District argued that the allegations in the amended petition still did not invoke the limited waiver of immunity under the TCA and that her "own allegations show no waiver of immunity under the [TCA]." After a hearing, the trial court denied the District's plea to the jurisdiction. The District then brought this interlocutory appeal.
ANALYSIS
Standard of Review
We review a plea questioning the trial court's subject matter jurisdiction de novo. See Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When, as here, the challenge is to the plaintiff's pleadings, we focus first on the plaintiff's petition to determine whether the facts that were pled affirmatively demonstrate that subject matter jurisdiction exists. Id. We construe the pleadings liberally in favor of the plaintiff. Id. "If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend." Id. at 226-27. "If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend." Id. at 227.
Limited Waiver of Governmental Immunity Under the TCA
It is undisputed that the District is a governmental unit under the TCA and immune from Salinas's claims unless the statutory waiver of immunity applies. See Tex. Civ. Prac. & Rem. Code § 101.001(3)(B) (defining "governmental unit" to include school district); Miranda, 133 S.W.3d at 224 (noting that sovereign immunity deprives trial court of subject matter jurisdiction unless State consents to suit); Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003) (discussing governmental immunity and statutory waiver of immunity under TCA). "We interpret statutory waivers of immunity narrowly, as the Legislature's intent to waive immunity must be clear and unambiguous." See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (citing Tex. Gov't Code § 311.034).
For purposes of this appeal, "a school district is not liable [under section 101.021(1) of the TCA] for personal injury proximately caused by a negligent employee unless the injury 'arises from the operation or use of a motor-driven vehicle.'" LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992) (quoting Tex. Civ. Prac. & Rem. Code § 101.021(1)(A)); see also Tex. Civ. Prac. & Rem. Code § 101.051 (excluding school districts from TCA "[e]xcept as to motor vehicles"). The Texas Supreme Court has defined "use" and "operation" in section 101.021(1) according to their ordinary meanings. See Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex. 1989) (defining "use" to mean "to put or bring into action or service; to employ for or apply to a given purpose" and "operation" as "doing or performing of a practical work").
As to the phrase "arises from" in section 101.021(1)(A), the Texas Supreme Court has interpreted this phase to require "a nexus between the operation or use of the motor-driven vehicle or equipment and the plaintiff's injuries" and "more than mere involvement of property." Whitley, 104 S.W.3d at 543 (citation omitted). The operation or use of a motor vehicle "'does not cause injury if it does no more than furnish the condition that makes the injury possible.'" Id. (quoting Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998)); see LeLeaux, 835 S.W.2d at 52 (concluding that, when school bus "is only the setting for the injury," injury does not arise from use or operation of bus and immunity is not waived); Gibson v. Garland Indep. Sch. Dist., 378 S.W.3d 613, 618 (Tex. App.—Dallas 2012, no pet.) (concluding that "school bus was merely the setting for the injury" and consequently that plaintiff had not alleged waiver of governmental immunity). To invoke the TCA's limited waiver of immunity, an alleged injury must have been caused by the "actual use" of the property, not the "failure to use it." Texas Nat. Res. Conservation Comm'n v. White, 46 S.W.3d 864, 869 (Tex. 2001); see Whitley, 104 S.W.3d at 543 (noting that vehicle's "'use must have actually caused the injury'" to invoke limited waiver of immunity (quoting White, 46 S.W.3d at 869)).
"'[W]hen the injuries arise from an employee's acts or omissions involving only supervision or control of children, immunity has not been waived even if the acts took place on or near [a school] bus.'" Gibson, 378 S.W.3d at 618 (quoting Breckenridge Indep. Sch. Dist. v. Valdez, 211 S.W.3d 402, 408 (Tex. App.—Eastland 2006, no pet.) (citation omitted)); see Elgin Indep. Sch. Dist. v. R.N., 191 S.W.3d 263, 272 (Tex. App.—Austin 2006, no pet.) ("[I]njuries arising from supervision of bus passengers do not arise from the operation or use of a vehicle."); see also Simon v. Blanco Indep. Sch. Dist., No. 03-10-00122-CV, 2011 Tex. App. LEXIS 651, at *4 (Tex. App.—Austin Jan. 28, 2011, no pet.) (mem. op.) (noting that "when the allegations of negligence are related to 'the direction, control, and supervision of the students' on the bus, rather than negligent use of the bus itself, the suit is barred" (citation omitted)). Guided by these principles and the standard of review, we turn to the District's issues.
Do Salinas's pleadings demonstrate a waiver of governmental immunity under the TCA?
In three issues on appeal, the District argues that the trial court erred when it denied the District's amended plea to the jurisdiction that was based on governmental immunity. Consistent with its arguments in its plea to the jurisdiction before the trial court, the District argues that Salinas's pleaded facts do not demonstrate that A.M.L.'s alleged injuries arose from the operation or use of a motor vehicle or that there is a nexus between the District's use or operation of a motor vehicle and A.M.L.'s alleged injuries and, therefore, that Salinas's claims do not fall within the limited waiver of immunity under section 101.021(1). See Tex. Civ. Prac. & Rem. Code § 101.021(1). The District argues that Salinas's allegations are claims of negligent supervision of the bus passengers, which claims do not waive the District's governmental immunity under the TCA, and further argues that it was A.M.L.'s "own affirmative conduct in opening the exit door and jumping out of the bus"—not an affirmative act by the bus driver in the operation or use of the school bus—that "actually caused" A.M.L.'s alleged injuries. See Whitley, 104 S.W.3d at 543.
As support for its position that Salinas's allegations are negligent supervision claims, the District cites Montoya v. Houston Independent School District, 177 S.W.3d 332 (Tex. App.—Houston [1st Dist.] 2005, no pet.). In that case, a child who was restrained in a special child-proof harness, "freed himself from the harness and, while the [school] bus was in motion, opened and fell through the emergency exit, sustaining the personal injuries giving rise to [the] lawsuit." Id. at 334. The child was eight years old at the time and enrolled in special education in the school district. Id. The allegations against the school district included that the bus driver was negligent by "failing to maintain a reasonable lookout, and notice that [the child] had disengaged the harness," and "failing to stop the bus before [the child] reached the emergency exit, opened it, and fell through it." Id. at 335.
Our sister court concluded that the plaintiffs' allegations did not fall within the limited waiver of immunity set forth in section 101.021(1). Id. at 339. In reaching this conclusion, the court explained:
While it is generally true that a driver's negligent failure to timely stop a vehicle to avoid a collision would relate to the operation of that vehicle, here the [plaintiffs'] allegation concerns the bus driver's failure to stop the bus to prevent [the child] from opening the rear door and falling out of the bus. This allegation actually relates to the bus driver's duty to supervise and respond to [the child]'s behavior on the bus, not the driver's operation or use of the bus itself. Furthermore, the [plaintiffs'] argument, that [the child]'s injuries would not have occurred if the bus had stopped prior to [the child]'s exiting the emergency door, does not demonstrate that [the child]'s injuries arose from the operation of the bus. For example, [the child]'s injuries would not have occurred if he had not boarded the bus altogether. But an allegation to this effect would not be sufficient to demonstrate that [the child]'s injuries arose from the operation of the bus. In order to establish the required nexus, the [plaintiffs] must allege that the bus driver's operation of the bus actually caused [the child]'s injuries.Id. at 337 (emphases in original, citation omitted).
The court in Montoya also concluded that the allegation that the bus driver failed to maintain a reasonable lookout "relates to the bus driver's duty to supervise the bus passengers and does not concern the actual operation or use of the bus," "falls squarely into the category of cases related to the direction, control, or supervision of students," and "fails to demonstrate the required nexus between the driver's negligent act and the injuries sustained by [the child]." Id. The court further concluded that the plaintiffs' allegations demonstrated that the child's injuries "were caused by [his] affirmative actions of opening the school bus emergency door and exiting the bus while it was in motion" and that, "even if the bus driver's failure to adequately supervise the students on the bus contributed to the accident, her actual operation and use of the bus did not cause the injuries." Id. at 338.
Salinas argues that the plaintiffs' allegations in Montoya are distinguishable from the allegations in this case because Salinas has alleged that "the driver actually continued to operate the bus for [a] period of time after A.M.L. opened the rear exit door and additionally, that she in fact applied the gas pedal while the door was open." She argues that the driver's "subsequent negligent acts or omissions in the operation or use of the vehicle" made the District liable even if the failure to supervise was a component of the injury. She further challenges the analysis in Montoya, arguing that an operator's acts or omissions need not be the sole cause of the injury, but "only to have 'contributed to' the injuries." We agree with Salinas that the phrase "arises from" in section 101.021(1)(A) does not require a showing that the "operation or use" of a motor vehicle was the sole cause of a plaintiff's injuries. See Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 928-29 (Tex. 2015) (noting that phrase "arises from" in section 101.021(1)(A) of TCA is satisfied by "something more than actual cause but less than proximate cause"); see also Whitley, 104 S.W.3d at 543 (concluding that governmental unit's immunity remained when "no use of the DART bus . . . contributed to [plaintiff]'s injuries"). The District does not contend otherwise.
Similar to the allegations made by the plaintiffs in Montoya, however, the gravamen of Salinas's allegations—including the failure to use the rear-view mirror correctly or to respond to the buzzer, applying the gas pedal and not the brakes after the buzzer sounded, and failing to drive attentively—is the bus driver's alleged failure to supervise and control A.M.L. so as to prevent him from jumping out of the exit door while the school bus was moving. See Montoya, 177 S.W.3d at 337; see also Simon, 2011 Tex. App. LEXIS 651, at *5 (citing Montoya to support conclusion that allegations that "the bus driver should have illuminated the interior lights, stopped the bus, or turned on the flashers" after assault started on moving bus "relate to supervision or control of the bus passengers"); cf. Elgin Indep. Sch. Dist., 191 S.W.3d at 272 (noting that failure to ensure that child exited school bus was supervisory in nature but that allegation of driver's subsequent "affirmative action" of locking bus was "use of the bus" and basis for waiver of immunity under TCA). Thus, we conclude that Salinas's allegations are of negligent supervision by the bus driver and that her references to certain parts of the school bus do not alter the nature of her allegations such that the District's immunity would be waived. See Breckenridge, 211 S.W.3d at 411 (analyzing allegation that bus driver drove bus to barn and parked it there, leaving student alone and trapped on bus, and concluding that injury "arose from failure of supervision, not from a use or operation of the bus itself" and, thus, that plaintiff did not allege valid waiver of governmental immunity).
Further, as was the case in Montoya, the allegations in Salinas's amended petition fail to show the required nexus between the use or operation of the school bus and A.M.L.'s injuries. See Montoya, 177 S.W.3d at 337-38 (noting that plaintiff must show "injuries arose from the operation of the bus" and that, "to establish the required nexus, the [plaintiffs] must allege that the bus driver's operation of the bus actually caused [the child]'s injuries"); see also Whitley, 104 S.W.3d at 543 (noting requirement of "nexus between operation or use of the motor-driven vehicle or equipment and a plaintiff's injuries"); White, 46 S.W.3d at 869-70; LeLeaux, 835 S.W.2d at 51; Simon, 2011 Tex. App. LEXIS 651, at *7 (concluding that allegations that focused on "supervision of the children's activities on the bus" failed to show "nexus between appellant's injury and the District's operation or use of a motor vehicle").
The allegations in Salinas's amended petition show that the use or operation of the school bus, at most, furnished the condition that made A.M.L.'s injuries possible. See Whitley, 104 S.W.3d at 543; Simon, 2011 Tex. App. LEXIS 651, at *5 (concluding that school bus driver's failure to illuminate interior lights, stop bus, and turn on flashers "did not actually cause appellant's injuries but, at most, merely furnished the condition that made the injury possible"); see also LeLeaux, 835 S.W.2d at 52 (collecting cases in which bus was "only the setting for the injury" such that immunity was not waived). According to Salinas's own allegations, it was A.M.L. who affirmatively took the action of opening the exit door and jumping out of the bus. See Montoya, 177 S.W.3d at 338. Compare Elgin Indep. Sch. Dist., 191 S.W.3d at 272 (concluding that allegation that bus driver's "negligent locking of the bus door" was sufficient to satisfy requirement that accident arose from operation or use of motor vehicle for waiver of governmental immunity under TCA), and Austin Indep. Sch. Dist. v. Gutierrez, 54 S.W.3d 860, 866 (Tex. App.—Austin 2001, pet. denied) (concluding that school district did not demonstrate as matter of law that accident did not arise from operation or use of motor vehicle because of bus driver's alleged "affirmative action of honking the horn, which may have contributed to the accident"), with Breckenridge, 211 S.W.3d at 411 (concluding that student's inability to exit bus after bus driver left student on bus could not "satisfy the requirement of an 'affirmative action'" on part of school district for waiver of immunity under TCA).
Salinas relies on alleged violations of the Transportation Code to support her position that she has pleaded a claim within the TCA's limited waiver of immunity. Salinas argues that the bus driver violated the Transportation Code by (i) not applying the brakes but "rather decid[ing] to apply the accelerator, continuing to operate the bus at a high rate of speed" after the rear exit door was open and (ii) permitting students to stand while the bus was being operated. See Tex. Transp. Code § 545.426(a)(1) (prohibiting operation of school bus when "the door of the school bus is open"), (b)(1) (requiring operator of school bus to prohibit "standing in the bus"). According to Salinas, it was "this unsafe and unlawful operation of the bus that [she] alleges caused A.M.L.'s injuries." In her amended petition, she also raises other violations of the Transportation Code and contends that the violations of the Transportation Code are negligence per se.
Salinas, however, has not cited, and we have not found, any case to support the conclusion that violations of the cited sections of the Transportation Code would, even if negligence per se, be sufficient to waive the District's immunity. See, e.g., King v. Manor Indep. Sch. Dist., No. 03-02-00473-CV, 2003 Tex. App. LEXIS 6346, at *6-7, 12 (Tex. App.—Austin July 24, 2003, no pet.) (mem. op.) (addressing Transportation Code provisions in analyzing plaintiff's allegations and concluding no waiver of immunity); see also Moughon v. Wolf, 576 S.W.2d 603, 604 (Tex. 1978) ("Negligence per se is a tort concept whereby the civil courts adopt a legislatively imposed standard of conduct as defining the conduct of a reasonably prudent person."); Kelly v. Brown, 260 S.W.3d 212, 218 (Tex. App.—Dallas 2008, pet. dism'd) (noting that "doctrine under which courts rely on a penal statute to define a reasonably prudent person's standard of care is referred to as negligence per se" (citing Reeder v. Daniel, 61 S.W.3d 359, 361-62 (Tex. 2001))). The Transportation Code sections do not contain language to support a waiver of the District's governmental immunity. See Tex. Gov't Code § 311.034 (providing that "statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language"); Garcia, 253 S.W.3d at 655. And this Court has already concluded that an "allegation that the bus driver allowed students to stand in the bus relates to control of the behavior of passengers, not the operation or use of the bus itself." Simon, 2011 Tex. App. LEXIS 651, at *4-5. On these grounds, we conclude that Salinas's allegations in her amended petition that are based on Transportation Code violations do not fall within section 101.021(1) of the TCA's limited waiver of immunity.
Taking Salinas's factual allegations in the amended petition as true, we conclude that they do not demonstrate that A.M.L.'s alleged injuries arose from the operation or use of a motor vehicle or that there is a nexus between the District's use or operation of a motor vehicle and A.M.L.'s alleged injuries. Thus, they fail to demonstrate a waiver of the District's governmental immunity under section 101.021(1) of the TCA. Accordingly, we sustain the District's issues.
Opportunity for Limited Discovery and Amendment
In her briefing, Salinas requests that, in the event that we sustain the District's issues, we remand the case to the trial court to provide her with an opportunity to conduct limited discovery and to amend her pleadings after such discovery. She contends that the opportunity for discovery has not been provided, and she seeks discovery regarding the school bus's surveillance video. On this record, we decline to do so. Salinas has already had an opportunity to amend her petition after the District filed its initial plea to the jurisdiction in which it raised the arguments that it raises on appeal, but Salinas has been unable to identify or allege facts that would support the trial court's jurisdiction under the limited waiver of governmental immunity in section 101.021(1) of the TCA. See Harris Cty. v. Sykes, 136 S.W.3d 635, 639-40 (Tex. 2004) (noting that, "if a plaintiff has been provided a reasonable opportunity to amend after a governmental entity files its plea to the jurisdiction, and the plaintiff's amended pleading still does not allege facts that would constitute a waiver of immunity, then the trial court should dismiss the plaintiff's action").
According to Salinas's allegations in the amended petition, the District reported that it did not have a copy of the video from the camera on the bus "that captured the entire incident." --------
CONCLUSION
We recognize that the plaintiff in this case suffered terrible injuries that may nevertheless be unrecoverable under the tort system because the legislature has enacted only a narrow waiver of governmental immunity. See Whitley, 104 S.W.3d at 543-44. The terms of that waiver do not permit recovery in this case. Thus, we reverse the trial court's order denying the District's amended plea to the jurisdiction and render judgment dismissing this case for want of jurisdiction.
/s/_________
Melissa Goodwin, Justice Before Justices Puryear, Goodwin, and Field Reversed and Rendered Filed: April 14, 2016
Tex. Civ. Prac. & Rem. Code § 101.021(1).