Pierson v. Houston Independent School Dist.

• Citation: 698 S.W.2d 377
• Decision Date: 15 August 1985
• Docket Number: No. C14-84-848-CV,C14-84-848-CV
• Parties: 28 Ed. Law Rep. 652 William Grant PIERSON, et al, Appellants, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, et al, Appellees. (14th Dist.)
• Court: Court of Appeals of Texas

Page 377

698 S.W.2d 377

28 Ed. Law Rep. 652

William Grant PIERSON, et al, Appellants, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, et al, Appellees.

No. C14-84-848-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Aug. 15, 1985.

Rehearing Denied Sept. 19, 1985.

John Gano, of Gano & Donovan, P.C., G. Robert Friedman, of Friedman & Chaffin, Ronald L. Bair, of Lorance & Thompson, Houston, for appellants.

Robert A. Plessala, of Reynolds, Allen & Cook, Robert L. Adams, of Dunn, Kacal, Adams, Livingston, Pappas & Law, Timothy Cooper, of Bracewell & Patterson, Warren Taylor, of Butler & Binion, Gordon M. Carver, III, of Dunn, Kacal, Adams, Livingston, Pappas & Law, all of Houston, for appellees.

Before JUNELL, ROBERTSON and CANNON, JJ.

OPINION

ROBERTSON, Justice.

This is a summary judgment case involving the liability of the Houston Independent School District (HISD), certain of its employees and others for personal injuries sustained by William Grant Pierson and Teresa Ann Holland during a homecoming parade. We find no error and affirm.

On October 19, 1979, Robert E. Lee High School (Lee), a member of the HISD, organized a homecoming parade as part of its annual homecoming activities. Student members of the Lee chapter of the Texas Association of Future Farmers of America (FFA), including appellants Pierson and Holland, designed and assembled a float for the parade. The float, which was approved by Lee principal L.J. Bergen and teacher/FFA sponsor Roy Sheffield, consisted of a mock Apollo space capsule. One part of the capsule contained a small amount of "black powder" and was designed to emit smoke when ignited via an electrical spark generated by a battery and flash bulb device. The space capsule was carried on a long-bed trailer pulled by a truck owned by Stephen Smith's business, Health Care Services, Inc., and driven by Smith's son, Stephen Smith, Jr. (the Smiths). During the parade the smoke device did not detonate as planned, so Pierson picked up the device and ignited it with a cigarette lighter. The device exploded, injuring Pierson and Holland, who was standing near the trailer.

Pierson brought suit under the Texas Tort Claims Act against HISD, FFA, Sheffield, Bergen, the Smiths, Health Care Services, Inc., and Kevin Shook, another Lee student who designed the smoke device. Teresa Ann Holland and her mother, Dorothy, brought suit against HISD, FFA, Sheffield, the Smiths and Health Care Services, Inc. The Smiths and Health Care Services, Inc., filed a cross-action for indemnity and/or contribution against Shook, Pierson, HISD, FFA, Sheffield and Bergen. Pierson's suit was consolidated with the Hollands', after which motions for summary judgment filed by HISD, FFA, Sheffield and Bergen were granted against Pierson and the Hollands based upon the defense of governmental immunity. Also granted were the motions for summary judgment filed by HISD, FFA, Bergen and Sheffield against the Smiths' cross-action. The Smiths' motions for summary judgment filed against Pierson and the Hollands were denied. The parties for whom summary judgment was granted were severed from the suit, leaving Pierson and the Hollands as plaintiffs, and Shook, the Smiths and Health Care Services, Inc., as defendants.

Appellants (Pierson in points of error one through three and the Hollands in points of error one and two) allege the trial court erred in granting HISD's motion for summary judgment. Appellants contend that summary judgment is precluded by the existence of fact issues concerning whether they have a cause of action within the waiver of governmental immunity under the Texas Tort Claims Act.

Texas recognizes the principle of governmental immunity for agencies of the state acting within their governmental capacities. As an agency of the state, HISD is immune from liability for the alleged negligence of its agents or employees except to the extent the immunity is waived by the Texas Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 3(b) (Vernon Supp.1985). The Act provides that "each unit of government in the state shall be liable for money damages ... for personal injuries ... when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle ..." Thus the Act contains a limited waiver of immunity for injuries and damages arising from the use of motor vehicles. Appellants allege that the approval by HISD and its agents of the use of the float and smoke device constitutes an act falling within the motor vehicle exception to governmental immunity.

The standards for review of summary judgment renditions are well established. Defendants moving for summary judgment must expressly present and conclusively prove all essential elements of their defense as a matter of law; there can be no genuine issues of material fact. Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). In deciding whether there is a disputed material fact issue precluding summary judgment, every reasonable inference from the evidence must be indulged in favor of the non-movants and any doubts resolved in their favor. Id.

The appellants' allegations and the summary judgment evidence show that while there were perhaps errors in judgment on the part of HISD and its employees in allowing the smoke device to be used, or in failing to supervise its use adequately, the injuries complained of were not caused by the operation or use of the motor vehicle. While it is true that the unfortunate event took place on a motor vehicle, it was not through the motor vehicle's use or operation of the motor vehicle itself that the incident occurred. Estate of Garza v. McAllen Independent School District, 613 S.W.2d 526, 528 (Tex.Civ.App.--Beaumont 1981, writ ref'd n.r.e.). See also Jackson v. City of Corpus Christi, 484 S.W.2d 806 (Tex.Civ.App.--Corpus Christi 1972, writ ref'd n.r.e.). The accident was caused when appellant Pierson lighted the smoke device with a cigarette lighter. Thus the trailer was merely the site, not the cause of the accident. Pierson's act and not the operation or use of the truck and trailer was the cause of appellants' injuries. The trial court properly granted HISD's motion for summary judgment. Appellant Pierson's first three points of error and the Hollands' first two points of error are overruled.

Pierson, in points of error four through nine, and the Smiths and Health Care Services, Inc., in point of error four, allege the trial court erred in granting the motions for summary judgment of appellees Bergen and Sheffield. In points of error three and four the Hollands also contest the granting of Sheffield's motion for summary judgment. These motions were granted based upon the professional immunity provision found in § 21.912 of the Texas Education Code, which grants a qualified immunity to professional school employees for acts done within the scope of their employment involving judgment or discretion. This immunity does not, however, apply when excessive force is used in the discipline of a student...