Duson v. Midland County Independent School Dist.

• Citation: 627 S.W.2d 428
• Decision Date: 25 February 1981
• Docket Number: No. 6961,6961
• Parties: 2 Ed. Law Rep. 926 Doris DUSON, as Next Friend of Sufronia Duson, Appellant, v. MIDLAND COUNTY INDEPENDENT SCHOOL DISTRICT, Appellee.
• Court: Texas Court of Appeals

Page 428

627 S.W.2d 428

2 Ed. Law Rep. 926

Doris DUSON, as Next Friend of Sufronia Duson, Appellant, v. MIDLAND COUNTY INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 6961.

Court of Civil Appeals of Texas, El Paso.

Feb. 25, 1981.

Hirsch & Bartley, H. Thomas Hirsch, Melissa Hirsch, Odessa, for appellant.

Cotton, Bledsoe, Tighe & Dawson, P. C., Charles Tighe, Deborah J. Randerson, Midland, for appellee.

OPINION

WARD, Justice.

This appeal is from a summary judgment granted in favor of Midland County Independent School District as the Defendant in a common law negligence suit filed for the injuries suffered by a student when a swing she was using during school hours broke. We affirm.

Suit was brought by Doris Duson as next friend for her minor daughter, Sufronia Duson, for injuries the daughter sustained in April, 1978. Sufronia Duson was ten years old and was enrolled at the Anson-Jones Elementary School in Midland. It was alleged that while she was swinging on one of the School's swings during school hours, the swing broke, and she suffered a fracture of the left leg. It was alleged that the fall was caused by the defective equipment and that the ground immediately surrounding the area was extremely hard, the defect and conditions being known to the Defendant. Defendant moved for summary judgment on the ground that it was protected from suit under the doctrine of governmental immunity and under Section 19A of Article 6252-19, Tex.Rev.Civ.Stat.Ann. No answer was filed to the motion for summary judgment. The trial Court, after a hearing, granted the motion for summary judgment and a take nothing judgment was entered.

The Appellant's second point is an appeal that the courts abrogate the doctrine of governmental immunity. The point is without merit. The Supreme Court recently pointed that any waiver of governmental immunity is a matter to be addressed by the legislature. Barr v. Bernhard, 562 S.W.2d 844 (Tex.1978). It further pointed out that a 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 except for the limited waiver of immunity regarding use of motor vehicles. We are of the opinion that the furnishing of swings for the use of the school children on the playground during school hours is a governmental function since generally all the authorized functions of a school district are of a governmental character. Garza v. Edinburgh Consolidated Independent School District, 576 S.W.2d 916 (Tex.Civ.App.-Corpus Christi 1979, no writ); Braun v. Trustees of Victoria Independent School District, 114 S.W.2d 947 (Tex.Civ.App.-San Antonio 1938, writ...