Barr v. Bernhard

• Decision Date: 15 February 1978
• Docket Number: No. B-6698,B-6698
• Citation: 562 S.W.2d 844
• Parties: Paul BARR et al., Petitioners, v. Milton Johnny BERNHARD et al., Respondents.
• Court: Texas Supreme Court

Page 844

562 S.W.2d 844

Paul BARR et al., Petitioners, v. Milton Johnny BERNHARD et al., Respondents.

No. B-6698.

Supreme Court of Texas.

Feb. 15, 1978.

Rehearing Denied April 5, 1978.

Groce, Locke & Hebdon, Edward P. Fahey and J. Michael Myers; Clark, Thornton & Summers, Robert Summers, San Antonio, for petitioners.

Bob Gibbins, Bill Zook, Austin, for respondents.

McGEE, Justice.

This is a summary judgment case involving the liability of the Kerrville Independent School District and certain of its individual employees for personal injuries sustained by Mark William Bernhard, a student at Tivy High School of the Kerrville Independent School District. The trial court granted the School District's plea in bar on the basis of governmental immunity and granted the individual defendants' motion for summary judgment. The court of civil appeals affirmed the holding of the trial court regarding the School District, but reversed the judgment granting the individual defendants' motion for summary judgment and remanded the cause to the trial court for a new trial. 547 S.W.2d 685. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

Mark Bernhard was a student at Tivy High School and was enrolled in a vocational-agricultural course that called for him to raise a calf in order to satisfy the course requirements. The School District maintained a 73-acre facility, hereinafter referred to as the Ag Farm, where the students in the course could keep or raise their animals. It was not mandatory that the students keep their animals at the Ag Farm; but they could do so after obtaining permission from their instructors.

The Saturday on which the accident occurred, Mark was at the Ag Farm with his parents and some friends to care for his calf. There were no school personnel present at that time. After weighing his calf, Mark and his friends attempted to lead the calf back into an old army barracks that was used as a barn. The calf struck a metal pole which supported a gable roof over the entrance to the barn. The pole gave way and the roof collapsed, pinning Mark underneath the structure and severely injuring him.

Bernhard brought suit against the Kerrville Independent School District and certain of its individual employees alleging that they were negligent in several respects: (1) by failing to properly inspect the facility; (2) by failing to maintain or supervise the facility; and (3) by allowing the facility to be used while in a condition of disrepair.

THE LIABILITY OF THE SCHOOL DISTRICT

The law is well settled in this state that an independent school district is an agency of the state and, while exercising governmental functions, is not answerable for its negligence in a suit sounding in tort. See, e. g., Braun v. Trustees of Victoria Independent School District, 114 S.W.2d 947 (Tex.Civ.App. San Antonio 1938, writ ref'd); Coleman v. Beaumont Independent School District, 496 S.W.2d 245 (Tex.Civ.App. Beaumont 1973, writ ref'd n. r. e.). The Texas Tort Claims Act was enacted in 1970, and Section 3 of that Act provided for waiver of governmental immunity for the use of publicly-owned motor vehicles, premises defects, and injuries arising out of conditions or use of property. ¹ With respect to the liability of a school district, however, the Legislature provided for a more limited waiver of immunity. Section 19A of the Act states that a school district's liability is limited to causes of action arising from the use of motor vehicles.

Bernhard seeks to avoid the preclusive effect of section 19A on his cause of action against the School District by arguing that this Court should abolish the provisions of section 19A that restrict a school district's amenability to suit. He also argues that the School District waived any governmental immunity by the purchase of general liability insurance.

By his first argument, he urges this Court to judicially abrogate section 19A and place school districts on the same basis as other governmental units in waiving their immunity to the extent provided for under Section 3 of the Act. We recently held that any waiver of governmental immunity is a matter to be addressed by the Legislature, Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex.1976), and we are still of the opinion that it is the proper forum for such action. ²

Bernhard then argues that the School District waived its governmental immunity by purchasing liability insurance. ³ He points out that several states have adopted this "insurance-waiver theory" in order to relieve unjust results that are sometimes produced by the doctrine of governmental immunity. We are not persuaded by this argument.

In support of his argument, Bernhard cites the case of Christie v. Board of Regents, 364 Mich. 202, 111 N.W.2d 30 (1961). There was no direct holding by the Michigan Supreme Court in that case that the governmental unit had waived its immunity by the purchase of the insurance. That court merely held that a trial court did not abuse its discretion by requiring the production of a liability insurance policy obtained by the Board of Regents as possible admissible evidence that the Board had waived its immunity to the extent of the policy limits. In fact, subsequent Michigan decisions have held that there is no waiver of immunity when a governmental unit purchases liability insurance. Sayers v. School District No. 1, 366 Mich. 217, 114 N.W.2d 191 (1962); Pichette v. Manistique Public Schools, 50 Mich.App. 770, 213 N.W.2d 784 (Mich.Ct.App.1973); Branum v. State of Michigan, 5 Mich.App. 134, 145 N.W.2d 860 (Mich.Ct.App.1966).

Bernhard also relies on the case of Schoening v. United States Aviation Underwriters, 265 Minn. 119, 120 N.W.2d 859 (1963). We do not consider this decision to be in point either. In Schoening, certain aircraft owners sued the municipality and its insurer for damages to the aircraft resulting from the collapse of a hangar at the municipal airport. Governmental immunity was held not to be a defense to the action to the extent that the municipality had purchased liability insurance to cover such risks. Id. at 865. In reaching its decision, the court relied on a statute that explicitly stated that governmental immunity was waived to the extent of the coverage of the liability insurance policy that was purchased. See Minn.Stat.Ann. § 466.06 (1977).

As was the situation in Minnesota, the waiver of governmental immunity by statutes expressing in clear and unambiguous terms that such immunity is waived only to the extent of the liability insurance purchased appears to be the trend among those states adopting the "insurance-waiver theory." Holmes v. School Board, 301 So.2d 145 (Fla.D.Ct.App.1974) (construing Fla.Stat.Ann. § 234.03(4) (West's 1977)); Longpre v. Joint School District No. 2, 151 Mont. 345, 443 P.2d 1 (1968); Clary v. Alexander County Board of Education, 286 N.C. 525, 212 S.E.2d 160 (1975) (construing N.C.Gen.Stat. § 115-53 (1975)). Therefore, Section 9 of the Texas Tort Claims Act is distinguishable in this respect since the language of that provision merely authorizes units of government to purchase liability insurance; no language is contained therein that expresses an intent on the part of the Legislature to waive governmental immunity by the purchase of liability insurance. ⁴

Moreover, Texas cases dealing with other governmental agencies have rejected the argument that the act of procuring liability insurance waives any governmental immunity. In Sears v. Colorado River Municipal Water District, 487 S.W.2d 810 (Tex.Civ.App. Eastland 1972, writ ref'd n. r. e.) the plaintiffs sued the water district for damages resulting from a fire that the water district started on lake property. The trial court rendered summary judgment in favor of the water district based on the district's claim of governmental immunity. The plaintiffs asserted that the district had waived its defense of governmental immunity because it had procured liability insurance. The court of civil appeals held that the trial court was correct in rendering summary judgment in favor of the district and stated, in accordance with prior cases, that "the all-important factor is that the procuring of indemnity insurance cannot create liability where none exists in the absence of such insurance." Id. at 811; see Watkins v. Southcrest Baptist Church, 399 S.W.2d 530, 534-35 (Tex.1966); Jones v. Texas Gulf Sulphur Co., 397 S.W.2d 304, 307 (Tex.Civ.App. Houston 1965, writ ref'd n. r. e.); Texas Prison Board v. Cabeen, 159 S.W.2d 523, 527 (Tex.Civ.App. Beaumont 1942, writ ref'd).

Therefore, we hold that the School District is immune from liability under the doctrine of governmental immunity, and the trial court was correct in granting its plea in bar.

THE LIABILITY OF THE INDIVIDUAL DEFENDANTS

This case involves the initial interpretation of Section 21.912 of the Texas Education Code (Supp.1976-1977) by this Court. That section reads as follows:

"(a) The board of trustees of each school district within this state shall adopt policies specifying the duties of each of its professional positions of employment. The board of trustees shall assign positions of employment earned under the minimum foundation program to meet the specific needs of the district.

"(b) No professional employee of any school district within this state shall be personally liable for any act incident to or within the scope of the duties of his position of employment, and which act involves the exercise of judgment or discretion on the part of the employee, except in circumstances where professional employees use excessive force in the discipline of students or negligence resulting in bodily injury to students.

"(c) This section is not applicable to the operation, use, or maintenance of any motor vehicle.

"(d) 'Professional employee,' as used in this section, includes superintendents, principals, classroom teachers, supervisors, counselors, and...