Luna v. Harlingen Consol. Independent School Dist., 13-91-258-CV

• Decision Date: 19 December 1991
• Docket Number: No. 13-91-258-CV,13-91-258-CV
• Citation: 821 S.W.2d 442
• Parties: 71 Ed. Law Rep. 1261 Maria LUNA, Individually and as Next Friend of San Juanita Luna, a Minor and Elvira A. Sanchez, Individually and as Next Friend of Elvira Sanchez, a Minor, Appellants, v. HARLINGEN CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Appellee.
• Court: Texas Court of Appeals

Page 442

821 S.W.2d 442

71 Ed. Law Rep. 1261

Maria LUNA, Individually and as Next Friend of San Juanita

Luna, a Minor and Elvira A. Sanchez, Individually and as Next Friend of Elvira Sanchez, a Minor, Appellants, v. HARLINGEN CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 13-91-258-CV.

Court of Appeals of Texas,

Corpus Christi.

Dec. 19, 1991.

Rehearing Overruled Jan. 30, 1992.

Randall P. Crane, San Benito, for appellants.

Christopher H. Boswell, Stapleton, Whittington & Curtis, Harlingen, for appellee.

Before NYE, C.J., and BISSETT ¹ and SEERDEN, JJ.

OPINION

BISSETT, Justice.

This is an appeal by Maria Luna, individually and as next friend of San Juanita Luna, a minor, and Elvira A. Sanchez, individually and as next friend of Elvira Sanchez, a minor, plaintiffs in the trial court, from a summary judgment in favor of Harlingen Independent School District. We affirm.

Appellants alleged, and the summary judgment proof established conclusively, that the minor children, San Juanita Luna and Elvira Sanchez, were waiting at a school bus "stop" to be picked up by appellee's school bus, when they were struck by a motor vehicle then being driven by a third person. The children sustained severe injuries and appellants sued to recover damages for such injuries. Appellants, in particular, alleged:

On or about September 29, 1988, at approximately 7:45 a.m., Plaintiffs San Juanita Luna and Elvira Sanchez were waiting to be picked up by the school bus at Teege and Norma Road, in Cameron County, Texas, when suddenly and unexpectedly they were struck by a motor vehicle. The children had to wait for the school bus by standing in the traffic lane on Teege Road since the roads soft shoulder did not allow them to wait a safe distance away. The accident in question resulted in severe physical injuries to both Plaintiffs.

Plaintiff alleges that Defendant, its agents, servants, and employees negligently planned the points at which school children were picked up on bus routes since it was known or should have been known of the dangers that would be encountered if children were not provided "bus stops" a safe distance away from the traveled roadway. Defendant, its agents, servants, and employees knew, or in the exercise of ordinary care, should have known of the existence of the danger and that there was a likelihood that if the children stood in the traffic lane, that there was a likelihood that the children would be injured, as happened to Plaintiffs, San Juanita Luna and Elvira Sanchez.

Concerning the specific acts and omissions constituting negligence on the part of Harlingen Consolidated Independent School District, hereafter "appellee," appellant alleged (in summary) that appellee was negligent in the following particulars: 1) in failing to provide a safe place for children to stand while they waited for the school bus, 2) in failing to properly post signs to warn that the area was a school bus loading area, 3) in failing to have the bus driver stop all traffic on both sides of the street to allow the children to board safely, and 4) in allowing the children to wait for the school bus in the traffic lane.

Summary judgment proof conclusively showed: 1) the minor children involved in this case were struck by a private motor vehicle driven by a third party, Librada Villegas, on September 29, 1988, 2) the children were waiting to be picked up by the school bus at Teege and Norma Roads, 3) the school bus had not yet arrived when the children were struck, 4) no school bus had any contact with the children, since they were still waiting to be picked up at the time of the accident, 5) the school bus was not involved in the occurrence made the basis of this suit, 6) the minor children had not boarded a school bus, nor were they disembarking from a school bus when they were struck by the Villegas' motor vehicle, 7) the bus stop at which the children waited had recently been moved from one side of the street to facilitate the bus driver in picking the children up on his route, 8) the new location of the bus stop required the children to wait for the bus by standing in the oncoming traffic lane of Teege Road, or immediately next to that lane, since the soft shoulder of the road did not provide an area a safe distance from the road for them to stand, 9) the accident resulted in serious personal injuries to both children, and 10) appellee is a consolidated independent school district, a political subdivision within the State of Texas.

To be entitled to summary judgment, the movant must conclusively prove that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. MMP., Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). Generally, a defendant who seeks summary judgment, as is the case here, has the burden to establish, as a matter of law, that there is no genuine issue of material fact as to one or more essential elements of the plaintiff's cause of action or to establish his affirmative defense to plaintiff's cause of action as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Stewart v. City of Austin, 744 S.W.2d 682, 684 (Tex.App.--Austin 1988, writ ref'd).

Appellee set up governmental immunity under the Texas Tort Claims Act as an affirmative defense to appellants' cause of action. School districts are excluded from exposure to liability for personal injuries suffered by third parties caused by the torts of the district, its officials, agents, servants and employees by the Texas Tort Claims Act, except as to the operation and use of motor vehicles. TEX.CIV.PRAC. & REM.CODE ANN. §§ 101.021, 101.051 (Vernon 1986). Section 101.021 of the Act (Code) provides in relevant part:

A governmental unit in the State is liable for:

(1) property damage, personal injury and death proximately caused by the wrongful act or omission of 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 vehicle or motor driven equipment; ... [Emphasis supplied].

Section 101.051 of the Act provides in pertinent part:

Except as to motor vehicles, this Chapter (101) does not apply to a school district ...

This case does not...