Elgin Independent School Dist. v. R.N., 03-05-00174-CV.

• Decision Date: 02 March 2006
• Docket Number: No. 03-05-00174-CV.,03-05-00174-CV.
• Citation: 191 S.W.3d 263
• Parties: ELGIN INDEPENDENT SCHOOL DISTRICT, Emilia Lopez and Dora Morua, Appellants, v. R.N., a Minor Child By Victoria Newman, Individually and As Representative, Appellees.
• Court: Texas Court of Appeals

191 S.W.3d 263

ELGIN INDEPENDENT SCHOOL DISTRICT, Emilia Lopez and Dora Morua, Appellants, v. R.N., a Minor Child By Victoria Newman, Individually and As Representative, Appellees.

No. 03-05-00174-CV.

Court of Appeals of Texas, Austin.

March 2, 2006.

Rehearing Overruled March 24, 2006.

COPYRIGHT MATERIAL OMITTED

Eric G. Brown, Werstein & Rhodes, Austin, for appellants.

Bobby R. Taylor, Law Offices of Bobby R. Taylor, PC, Austin, for appellees.

Before Justices B.A. SMITH, PURYEAR and PEMBERTON.

OPINION

BOB PEMBERTON, Justice.

Elgin Independent School District (Elgin I.S.D.) appeals from the district court's denial of its plea to the jurisdiction raising sovereign immunity against a suit brought by Victoria Newman, individually and on behalf of her daughter, R.N. (collectively, "Newman"). The appeal presents the narrow question of whether Newman pleaded facts constituting a valid waiver of Elgin I.S.D.'s sovereign immunity under the tort claims act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2005). Applying our standard of review governing such issues, we affirm the district court's denial of the plea.

BACKGROUND

Consistent with our standard of review, discussed below, we take as true the following facts from Newman's pleadings. In the late morning of November 1, 2003, five-year-old R.N. was picked up by an Elgin I.S.D. school bus to go to her half-day pre-kindergarten class. Emilia Lopez was the driver and Dora Morua was the bus monitor. Newman alleged the following acts by Lopez and Morua thereafter:

Defendants Lopez and Morna [sic] had actual knowledge and knew Plaintiff Newman [the child] was seated on their bus and drove the minor child to school. Defendants arrived at school, exited the bus parked on the school campus and failed and refused to look in their bus to assure that Plaintiff Newman was off the bus and in school. Plaintiff Newman, a child of five years of age, fell asleep during the drive to school and was unaware the bus had arrived. Defendants locked Plaintiff inside the bus until approximately 3 PM without adequate ventilation, water and supervision. Plaintiff Newman awoke and tried to exit the bus but found herself locked inside the bus. Plaintiff Newman cried, screamed and tried to get the attention of Defendant's employees but her calls were ignored. Plaintiff was confined inside the hot uncomfortable vehicle through out [sic] the majority of the day. Plaintiff was frightened and physically and emotionally injured because of Defendants' negligence.

Newman made these allegations against Lopez and Morua the basis for a negligence claim against Elgin I.S.D., pleading that "[t]he negligent, careless and reckless disregard of duty of Defendant Elgin Independent School District consisted of leaving Plaintiff locke[d] inside their bus," as well as negligence claims against Lopez and Morua ("The negligent, careless and reckless disregard of duty of Defendants consisted of, but is not limited to ... failed to keep a proper lookout for Plaintiffs' safety ... and [f]ailure to monitor the presence of Plaintiff, a minor child, in the bus.").

Newman pleaded that "Plaintiffs have suffered physical and emotional trauma and damages" from R.N.'s being left on the bus, including R.N.'s past and future medical care, pain and suffering, physical impairment, mental anguish, "[f]ear of future disease or condition," and "[c]ost of medical monitoring and prevention in the future." Newman also sought her own past and future medical expenses, mental anguish, "[f]ear of future disease or condition," and "[c]ost of medical monitoring and prevention in the future."

Elgin I.S.D. filed a plea to the jurisdiction based on sovereign immunity, asserting that Newman had failed to demonstrate a valid waiver of immunity under the tort claims act. See id. The district court denied its plea to the jurisdiction on February 25, 2005. From this order, Elgin I.S.D. took this interlocutory appeal.¹ Id. § 51.014(8) (West Supp.2005).

DISCUSSION

Elgin I.S.D. presents two issues on appeal, together arguing that the district court erred in denying its plea to the jurisdiction because Newman fails to plead a valid waiver of sovereign immunity.

Standard of review

Sovereign immunity deprives a trial court of subject-matter jurisdiction in suits against the State or certain governmental units, including school districts, unless the governmental unit consents to suit. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004); see Tex. Civ. Prac. & Rem.Code Ann. § 101.051 (West 2005). Because sovereign immunity, if not waived, defeats a trial court's jurisdiction, it is properly asserted in a plea to the jurisdiction. Miranda, 133 S.W.3d at 225-26; Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex.1999). Subject-matter jurisdiction presents a question of law; we review de novo the district court's grant or denial of a plea to the jurisdiction. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Texas State Employees Union/CWA Local 6184 v. Texas Workforce Comm'n, 16 S.W.3d 61, 65 (Tex.App.-Austin, 2000, no pet.).

Key to our disposition is the procedural posture of Elgin I.S.D.'s jurisdictional challenge. Elgin I.S.D. did not dispute the underlying jurisdictional facts Newman alleged, and no record was brought forward indicating that the district court heard evidence regarding jurisdictional facts. See Miranda, 133 S.W.3d at 225-26. Rather, Elgin I.S.D.'s plea to the jurisdiction challenged only Newman's pleadings for failing to affirmatively demonstrate the district court's jurisdiction. We consider de novo whether Newman met her burden of alleging facts affirmatively demonstrating the district court's jurisdiction over the cause, id. at 226, which here requires allegations demonstrating a valid waiver of Elgin I.S.D.'s immunity. See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003); Texas Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). To determine whether Newman met that burden, we "construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent." Miranda, 133 S.W.3d at 226. And, because Elgin I.S.D. does not challenge them, we accept as true the pleadings' factual allegations. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993).

Do Newman's pleadings state a valid waiver of sovereign immunity?

Newman contends that her pleadings demonstrate a valid waiver of sovereign immunity under the following provision of the tort claims act:

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.

Tex. Civ. Prac. & Rem.Code Ann. § 101.021; see also id. § 101.051 (exempting school districts from tort claims act waivers of immunity "[e]xcept as to motor vehicles"). Elgin I.S.D. does not dispute that Newman adequately pleaded that Lopez and Morua were acting within the scope of their employment with the district and that their actions proximately caused R.N. and Newman damages. It does dispute whether Newman has sufficiently alleged that such personal injury "arises from the operation or use of a motor-driven vehicle."

When construing statutory immunity waivers under the tort claims act, the supreme court has emphasized that the act "provides a limited waiver of sovereign immunity, allowing suits to be brought against governmental units only in certain, narrowly defined circumstances." Texas Dep't of Crim. Justice v. Miller, 51 S.W.3d at 587; see also Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341-42 (Tex.1998) (surveying legislative history of act to illustrate that "the waiver of immunity in the Tort Claims Act is not, and was not intended to be, complete"). We defer to the legislature's intent, as the policy "decision as to who should bear responsibility for governmental employees' misconduct should be made by the people's representatives" rather than courts. Bossley, 968 S.W.2d at 341.

To determine whether Newman's allegations state a valid waiver of immunity, we consider whether Newman alleges injuries proximately caused by Elgin I.S.D.'s negligence that have a nexus to the "use" or "operation" of the school bus. See Whitley, 104 S.W.3d at 543; LeLeaux v. Hampshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992); Austin Indep. Sch. Dist. v. Gutierrez, 54 S.W.3d 860, 863-64 (Tex.App.-Austin 2001, pet. denied); Michael Shaunessy and Sarah Wells, Sovereign Immunity: "Bring Lawyers, Guns and Money" State Bar of Texas, Suing & Defending Governmental Entities (July 28-29, 2005).

Use or operation

The supreme court has construed "use" under section 101.021 as "to put or bring into action or service; to employ for or apply to a given purpose." Whitley, 104 S.W.3d at 542; Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex.1989) (quoting Beggs v. Texas Dep't of Mental Health & Mental Retardation, 496 S.W.2d 252, 254 (Tex.Civ. App.-San Antonio 1973, writ ref'd)). "Operation" under the provision is "a doing or performing of practical work." Mount Pleasant, 766 S.W.2d at 211 (citing Jackson v. City of Corpus Christi, 484 S.W.2d 806, 809 (Tex.Civ.App.-Corpus Christi 1972, writ ref'd n.r.e.)). The use or operation must be by a governmental employee, not a third person. LeLeaux, 835 S.W.2d at 51.

Throughout her briefing, Newman identifies the relevant "use" or "operation" of the bus as the utilization of it to transport R.N. to school, arguing that (1) transporting R.N. and other students constitutes use or operation of the bus; (2) stopping and...