Mount Pleasant Independent School Dist. v. Estate of Lindburg By and Through Lindburg, C-7379

• Court: Supreme Court of Texas
• Citation: 766 S.W.2d 208
• Docket Number: No. C-7379,C-7379
• Parties: 52 Ed. Law Rep. 797 MOUNT PLEASANT INDEPENDENT SCHOOL DISTRICT et al., Petitioners, v. ESTATE OF Misty Dawn Steck LINDBURG By and Through its Administratrix, Saundra LINDBURG et al., Respondents.
• Decision Date: 15 February 1989

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766 S.W.2d 208 52 Ed. Law Rep. 797 MOUNT PLEASANT INDEPENDENT SCHOOL DISTRICT et al., Petitioners,
v.
ESTATE OF Misty Dawn Steck LINDBURG By and Through its
Administratrix, Saundra LINDBURG et al., Respondents. No. C-7379. Supreme Court of Texas. Feb. 15, 1989.
Rehearing Denied March 29, 1989.

Page 209

Robert W. Weber and John R. Mercy, Atchley, Russell, Waldrop & Hlavinka, Texarkana, for petitioners.

Randell C. Roberts and Bruce L. Roberts, Loftis & Roberts, Tyler, for respondents.

SPEARS, Justice.

At issue in this case is the standard of care imposed upon a school district to ensure a student's safety after disembarking a district provided school bus, and the limits of the legislature's waiver of sovereign immunity. The trial court held the district owed a duty of ordinary care to its student passengers and that the doctrine of sovereign immunity did not protect the school district from suit. The court of appeals reversed, holding that the school district owed a high degree of care to its student passengers, similar to the duty owed by common carriers. 746 S.W.2d 257 (Tex.App.--Texarkana 1987). That court further held the school district waived its claim of sovereign immunity by failing to obtain a trial court ruling on the issue. 746 S.W.2d at 260. We reverse the judgment of the court of appeals and render judgment that plaintiffs take nothing.

Misty Lindburg, a seven-year-old, third-grade student, lived in the Northtown East mobile home park on the west side of U.S. Highway 271 in Mount Pleasant, Texas. Misty often rode the bus home from school and got off on the east side of Highway 271 near the southernmost entrance to the park. The bus also stopped about forty yards north of this entrance near the home of Jason Hinton, a student, and roughly across the highway from a northern entrance to the trailer park. Misty occasionally got off the bus at this stop to pick up her little sister from a nearby neighbor in the mobile home park. This neighbor sometimes watched the younger sister, and it was Misty's chore to take the child home and wake her mother.

The bus Misty rode was driven by John Gullion, a Special Education teacher. Gullion had fifteen years of experience as a bus driver and had initially taken a thirty-hour certification course. Every three years thereafter he had taken a ten-hour refresher course to remain certified. The Mount Pleasant Independent School District also provided a safety program for school bus drivers at the beginning of each school year.

Gullion was responsible for driving approximately 175 students to and from school in the fall semester of 1984. He testified that the local bus safety rules required each child to exit the bus at the same stop from which the child had been picked up. The child was not supposed to get off at a different stop in the afternoon unless he had a note from the principal or his parents. Gullion described this procedure but explained that knowing where 175 children get on and off was a difficult, if not impossible, task because of the constantly changing demographics of the bus route. He had been driving Misty only six

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weeks and testified that he did not yet know where she lived.

On October 18, 1984 Gullion was transporting many students, including Misty, to the bus stops near their homes. He stopped the bus at the southernmost entrance to the mobile home park and checked to see that traffic in both directions had stopped. He then opened the bus doors, and six to eight children exited, walked to the front of the bus and safely crossed the highway.

Gullion then drove approximately forty yards north to a bus stop near the home of Jason Hinton. This stop was across Highway 271 from the northern entrance to the mobile home park in which Misty lived. Again Gullion made sure that all traffic had stopped and then opened the bus's doors. Misty Lindburg and Jason Hinton exited the bus at this stop. Hinton walked directly to his home. Misty exited and walked away from the bus into the grass on the east side of the highway. There was testimony that she then bent down and tied her shoe. Another witness testified that Misty appeared to be talking to Jason after she exited the bus. Gullion waited a sufficient length of time to allow Misty to cross the highway although she did not appear to want to do so. After this stop the bus drove away to continue its route.

Three motorists observed Misty after she left the bus. All agreed that she made no indication of an intention to cross the highway while the bus was stopped. After the bus had pulled away, one of the motorists tried to "wave" Misty across the street; however, the girl declined to cross and continued to walk south on the east side of the road. The bus by this time had passed over the crest of a hill approximately 200 yards away. A pickup truck driven by Kenneth Foley was headed south on Highway 271. Misty darted onto the highway where Foley's pickup struck and killed her.

The administratrix of Misty's estate, Saundra Lindburg, brought this suit, in various capacities, against Gullion and the Mount Pleasant Independent School District. Before trial began the trial court ruled on the school district's special exceptions. It granted one of them and struck that portion of Lindburg's petition alleging that the school district was a common carrier of the students. It denied the other, which concerned an assertion by the school district that the suit was barred by the doctrine of sovereign immunity. After the close of evidence, the court refused Lindburg's proposed submission imposing a high degree of care on the school district and bus driver and instead submitted the case upon traditional standards of ordinary negligence.

The jury found that the driver, Gullion, was not negligent in the operation of the school bus; that Misty Lindburg had failed to maintain a proper lookout while crossing the highway; and that such failure was a proximate cause of the accident which caused her death. Based on the jury's verdict, the trial court rendered judgment that the estate of Misty Lindburg take nothing.

Lindburg appealed and argued that the trial court erred in sustaining the school district's special exception forcing Lindburg to eliminate the allegations in her petition that referred to the school district as a "common carrier." Lindburg also contended the trial court erred in failing to submit negligence issues imposing a high degree of care on the school district rather than ordinary care. The court of appeals reversed, holding that a child transported by a school bus was entitled to the same standard of care as a passenger on a common carrier, i.e., a high degree of care, and reversed the trial court. The court held the trial court erred in refusing Lindburg's instruction on this issue. 746 S.W.2d at 260. The case was remanded for a new trial.

In its motion for rehearing in the court of appeals, the school district reurged its trial court special exception concerning sovereign immunity. The court of appeals, however, held that the school district had failed to preserve the issue of sovereign immunity. The Mount Pleasant Independent School District argues that the court of appeals erred in finding the sovereign immunity issue waived. We hold the doctrine

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of sovereign immunity bars Lindburg's prosecution of this case. SOVEREIGN IMMUNITY

The court of appeals incorrectly states that no trial court ruling on the sovereign immunity contention appears in the record and thus the defense of sovereign immunity was not preserved. 746 S.W.2d at 260. The transcript reveals that before trial the trial court explicitly overruled the school district's special exception asserting sovereign immunity. Because the trial court overruled this special exception, and because it was properly raised on appeal, the defense of sovereign immunity was properly raised. Now we must ascertain the extent of the waiver of governmental immunity contained in the Texas Tort Claims Act. Tex.Civ.Prac. & Rem.Code Ann. § 101.001 et seq. (Vernon 1986 & Supp.1989).

Under the doctrine of sovereign immunity, the state is not liable for the torts of its agents or officers unless there is a constitutional or statutory waiver of immunity. Texas Highway Dept. v. Weber, 147 Tex. 628, 219 S.W.2d 70 (1949). By enacting the Texas Tort Claims Act in 1969, the legislature has allowed suits against a governmental unit of the state under certain circumstances. Now codified as section 101.021 of the Texas Civil Practices and Remedies Code, the Act provides:

§ 101.021. Governmental Liability

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; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex.Civ.Prac. & Rem.Code Ann. § 101.021 (Vernon 1986). Although the defense of sovereign immunity has been waived by the legislature in certain instances, see, e.g., Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex.1976), this court must determine the limits of the waiver from the language used. Only when the legislature has clearly and explicitly waived the state's sovereign immunity may a cause of action accrue. Duhart v. State, 610 S.W.2d 740, 742-43 (Tex.1980).

The statute is clear that school districts may not assert the defense of sovereign immunity in cases involving the "operation or use of a motor-driven vehicle." Tex.Civ.Prac. & Rem.Code Ann. § 101.051. However,...