Opinion
No. 05-18-01415-CV
06-19-2019
GRAND PRAIRIE INDEPENDENT SCHOOL DISTRICT, Appellant v. MANDY CASTRO AS NEXT FRIEND OF J.I.C., A MINOR, Appellee
On Appeal from the 191st Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-18-06947
MEMORANDUM OPINION
Before Justices Myers, Molberg, and Carlyle
Opinion by Justice Molberg
In two issues, Appellant Grand Prairie Independent School District (GPISD) challenges the trial court's denial of its plea to the jurisdiction in this negligence action that is subject to the Texas Tort Claims Act (TTCA), TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001-.109. Because we conclude that the minor plaintiff properly pleaded that his injuries arose from the negligent operation or use of a motor-driven vehicle, we affirm the trial court's denial of GPISD's plea to the jurisdiction without the need to address GPISD's second issue, and remand this cause to the trial court for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
JIC, a school child, was a frequent passenger on school buses operated by GPISD. On December 8, 2017, he was on a bus waiting to be transported from Kennedy Middle School to another destination. At some point after the bus driver started the bus to begin the trip, but while the bus remained stationary, JIC reached beneath his seat to place his backpack out of the way. When he did, three fingers on one of his hands were lacerated by the turning blades of an unscreened fan that became operational when the bus was started by its driver. GPISD personnel knew of the exposed fan blades before the bus was started.
Through his next friend, Mandy Castro, JIC sued the school district for negligence. The district filed its plea to the jurisdiction, claiming it is immune from plaintiff's claims because the TTCA does not waive the district's governmental immunity based upon the facts pleaded. The district court denied the plea and GPISD brought this interlocutory appeal.
ANALYSIS
In the sole issue material to our disposition of this appeal, GPISD argues that it is immune from suit under the TTCA because the minor plaintiff's injuries did not arise from the "operation or use" of the school bus, a motor-driven vehicle, within the meaning of the TTCA. Accordingly, GPISD argues it is entitled to the cloak of governmental immunity, and that the lower court erred by denying its jurisdictional plea and failing to dismiss JIC's claims.
As relevant here, the TTCA waives a school district's liability for,
(1) . . . personal injury . . . proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the . . . personal injury . . . arises from the operation or use of a motor-driven vehicle . . . ; and
(B) the employee would be personally liable to the claimant according to Texas law . . . .
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021.
"Sovereign immunity includes two distinct principles, immunity from suit and immunity from liability." Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The latter is an affirmative defense, while the former is a jurisdictional bar. "The [TTCA] creates a unique statutory scheme in which the two immunities are co-extensive," so that immunity from suit (the jurisdictional component) is waived "to the extent of liability created by this chapter." Id.
Governmental immunity is properly raised by a plea to the jurisdiction. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Where, as here, the facts pleaded are undisputed, we review the trial court's action de novo. Id. at 226. In such a case, we must determine whether the facts alleged demonstrate the court's jurisdiction. Id. (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). "We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent." Miranda, 133 S.W.3d at 226; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (construing the pleadings in the plaintiff's favor and accepting all allegations contained therein as true).
GPISD concedes in its briefing that it "does not contest the facts as alleged" by JIC. "However, in some cases, disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by the finder of fact." Miranda, 133 S.W.3d at 226.
GPISD claims that because "[t]he bus was stationary, and, at most, idling," this cannot constitute the operation or use of a motor vehicle within the meaning of the TTCA's waiver of immunity provision because the bus "was not doing or performing a practical work." GPISD maintains, "It was not being transported anywhere." Therefore, the district argues, JIC's injuries could not have arisen "from the operation or use of" the bus. We reject this contention.
The term "operation or use" must be given its ordinary meaning. Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex. 1989). "'Operation' refers to 'a doing or performing of a practical work,' and 'use' means 'to put or bring into action or service; to employ for or apply to a given purpose'." Id. (internal citations omitted). See also LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992).
In Hitchcock v. Garvin, 738 S.W.2d 34, 37 (Tex. App.—Dallas 1987, no writ), we concluded that the bus driver's failure to activate flashers or warning signals "constitutes 'an act or omission arising from the operation or use of [the bus]'" within the meaning of the TTCA, so as to result in a waiver of immunity. 738 S.W.2d at 37. Similarly, in Dallas Area Rapid Transit v. Willis, 163 S.W.3d 814 (Tex. App.—Dallas 2005, pet. denied), we said the action of parking the bus in a way that may have contributed to an alighting passenger's accident constituted operation or use of a motor vehicle, and "[t]he fact that the bus was stationary is not determinative of whether it was being used or operated." 163 S.W.3d at 817. Some of our sister courts of appeals have reached the same result in comparable settings when finding a waiver of immunity under the TTCA. See, e.g., La Joya Indep. Sch. Dist. v. Gonzalez, 532 S.W.3d 892 (Tex. App.—Corpus Christi-Edinburg 2017, pet. filed) (stopping bus and activating warning lights to pick up passenger constitutes operation or use of bus); El Paso Indep. Sch. Dist. v. Apodaca, 346 S.W.3d 593 (Tex. App.—El Paso 2009, no pet.) (operation of part of stationary vehicle—a disability lift—constitutes operation or use of vehicle); Elgin Indep. Sch. Dist. v. R.N., 191 S.W.3d 263 (Tex. App.—Austin 2006, no pet.) (driver's or monitor's act in locking school child on stationary bus involves use of the bus); Austin Indep. Sch. Dist. v. Gutierrez, 54 S.W.3d 860 (Tex. App.—Austin 2001, pet. denied) (bus driver honking horn of stopped bus indicating it was safe for student to cross street constitutes operation or use of bus).
Central to the holdings of all these authorities is the acknowledged requirement that the operation or use involved must actually be a causative factor of the injury. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003) ("We have consistently required a nexus between the operation or use of the motor-driven vehicle . . . and a plaintiff's injuries."). "When an injury occurs on a school bus but does not arise out of the use or operation of the bus, and the bus is only the setting for the injury, immunity for liability is not waived." LeLeaux, 835 S.W.2d at 52. The vehicle's operation or use "must have actually caused the injury." Tex. Nat. Res. Conservation Comm'n v. White, 46 S.W.3d 864, 869 (Tex. 2001).
For example, injuries caused by negligent supervision, rather than by the vehicle's operation or use, are subject to an immunity challenge unless the immunity is otherwise waived by the TTCA. See, e.g., Whitley, 104 S.W.3d at 542-43.
Instructive here is Lipan Indep. Sch. Dist. v. Bigler, 187 S.W.3d 747 (Tex. App.—Fort Worth 2006, pet. denied). In Bigler, a high school student was injured during a fence-building project by an auger that was power-sourced by a stationary tractor. The court noted that "because the auger works only when someone is operating the tractor," id. at 752, the auger "would be incapable of causing injury to Bigler in the manner it allegedly did without the power provided by the tractor's engine." Id. at 753. Thus, "the tractor's use actually caused the injury." Id.
Here, the bus motor powered the fan that caused injury to JIC, and absent the motor's power, the fan would have been incapable of causing the injury. We conclude that like the use of the tractor in Bigler, the bus's use here actually caused the injury.
CONCLUSION
JIC has properly pleaded a waiver of the district's governmental immunity and invoked the trial court's jurisdiction by alleging that he sustained personal injury as a result of negligence arising from the operation or use of a motor-driven vehicle. We therefore affirm the court's denial of GPISD's plea to the jurisdiction, and remand this cause to the trial court for further proceedings consistent with this opinion.
/Ken Molberg/
KEN MOLBERG
JUSTICE 181415F.P05
JUDGMENT
On Appeal from the 191st Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-18-06947.
Opinion delivered by Justice Molberg. Justices Myers and Carlyle participating.
In accordance with this Court's opinion of this date, the trial court's denial of appellant GRAND PRAIRIE INDEPENDENT SCHOOL DISTRICT's plea to the jurisdiction is AFFIRMED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellee MANDY CASTRO AS NEXT FRIEND OF J.I.C., A MINOR recover her costs of this appeal from appellant GRAND PRAIRIE INDEPENDENT SCHOOL DISTRICT. Judgment entered this 19th day of June, 2019.