Ransom v. Center for Health Care Serv.

• Decision Date: 31 August 1999
• Docket Number: No. 04-98-00661-CV,04-98-00661-CV
• Citation: 2 S.W.3d 643
• Parties: (Tex.App.-San Antonio 1999) James RANSOM, Appellant v. THE CENTER FOR HEALTH CARE SERVICES, Appellee
• Court: Texas Court of Appeals

Page 643

2 S.W.3d 643 (Tex.App.-San Antonio 1999)

James RANSOM, Appellant v. THE CENTER FOR HEALTH CARE SERVICES, Appellee

No. 04-98-00661-CV

In the Fourth Court of Appeals San Antonio

August 31, 1999

Rehearing Overruled Aug. 31, 1999

From the 225th Judicial District Court, Bexar County, Texas, Trial Court No. 97-CI-07288, Honorable Martha Tanner, Judge Presiding

AFFIRMED

Sitting: Phil Hardberger, Chief Justice, Tom Rickhoff, Justice, Alma L. Lopez, Justice, Catherine Stone, Justice, Paul W. Green, Justice, Sarah B. Duncan, Justice, Karen Angelini, Justice

Dissenting Opinion by: Phil Hardberger, Chief Justice, joined by Justice Alma L. Lpez

OPINION ON APPELLEE'S MOTION FOR REHEARING EN BANC

Opinion by: Karen Angelini, Justice

Our opinion and judgment of February 24, 1999, are withdrawn, and the following opinion and judgment are substituted. Appellee's motion for rehearing en banc is granted.

James Ransom ("Ransom") appeals from a summary judgment granted in favor of the Center for Health Care Services, a Bexar County agency, ("The Center"). The Center moved for summary judgment based on sovereign immunity and sole proximate cause. We affirm.

Background Facts

Ransom, who is mentally retarded, lives in a group home. The Center had agreed to provide transportation services to Ransom. On March 8, 1997, Frank Moran, the Center's driver dropped Ransom across the street from his home. As Ransom crossed the street, he was hit by a vehicle driven by an intoxicated driver. The vehicle was owned by David Cheraso and was being driven by Brian Fleegle. Ransom sued Cheraso, Fleegle, and the Center for his injuries, but non-suited Cheraso and Fleegle after the Center's Motion for Summary Judgment was granted. The Center's motion for summary judgment was based on both sovereign immunity and sole proximate cause.

Standard of Review

In a motion for summary judgment, the movant has the burden to show that there exists no genuine issue of material fact and that he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant is entitled to summary judgment when each element of an affirmative defense to the plaintiff's cause of action has been established as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990) (citing Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984)). Upon review, all evidence which favors the non-movant is taken as true. Nixon, 690 S.W.2d at 548. Every reasonable inference is indulged and all doubts are resolved in favor of the non-movant. Id.

Sovereign Immunity

The Texas Tort Claims Act ("TTCA") creates a limited waiver of sovereign immunity. See Tex. Civ. Prac. & Rem. Code Ann. 101.021, 101.022 (Vernon 1997). Immunity is waived in three circumstances: (1) where the injury arises from the operation or use of a motor vehicle; (2) where the injury was caused by a condition or use of tangible personal or real property; and (3) where the claim arises from premise defects. Id.; See Alvarado v. City of Brownsville, 865 S.W.2d 148, 155 (Tex. App.-Corpus Christi 1993), rev'd on other grounds, 897 S.W.2d 750 (Tex. 1995). The issue in this appeal is whether Ransom's injuries arise from the operation or use of a motor vehicle within the waiver of immunity provision of the TTCA.

Ransom's allegation in this case is, essentially, that the Center committed acts of negligence which related to operation of the government vehicle but resulted in injury to Ransom by a third party. We are not without guidance on this issue as some of our sister courts of appeals have addressed this issue in similar fact situations.

In Goston v. Hutchison, 853 S.W.2d 729 (Tex. App.--Houston [1st Dist.] 1993, no writ), the First Court of Appeals engaged in a thorough and well-reasoned analysis of cases involving similar allegations. The facts in Goston are, in fact, strikingly similar to the facts in our case. In Goston, the bus driver dropped two students at a non-designated stop where they were picked up by a friend and subsequently injured in an accident. Id. at 731. The court discussed a number of cases involving allegations that a government entity committed some act of negligence related to the operation of a school bus which resulted in an injury to the student by a third party. The Goston court concluded that the proper distinction is as follows: "when the allegations of negligence are related to the direction, control, and supervision of the students, the suit is barred; when the allegations of negligence are related to the negligent use of the motor vehicle itself, the suit is not barred." Id. at 732-33 citing Luna v. Harlingen Consol. Indep. Sch. Dist., 821 S.W.2d 442 (Tex. App.--Corpus Christi 1991, writ denied) (holding where students killed while waiting at bus stop designated by school district, immunity not waived); Hitchcock v. Garvin, 738 S.W.2d 34 (Tex. App.--Dallas 1987, no writ) (holding where student hit by car after exiting school bus because bus driver did not activate flashing lights, immunity waived); Heyer v. North East Indep. Sch. Dist., 730 S.W.2d 130 (Tex. App.--San Antonio 1987, writ ref'd n.r.e.) (holding where student hit by another student's vehicle while waiting for school bus, immunity not waived); Estate of Garza v. McAllen Indep. Sch. Dist., 613 S.W.2d 526 (Tex. App.--Beaumont 1981, writ ref'd n.r.e.) (holding where student stabbed by non-student while riding on school bus, immunity not waived)). Because leaving a student at the wrong stop amounts to a failure to properly supervise the student and does not amount to negligent use or misuse of the motor vehicle itself, the court in Goston upheld the sovereign immunity claim. Id. at 734.

The only case that is at odds with Goston under the Houston court's analysis in Goston is Contreras v. Lufkin Indep. Sch. Dist., 810 S.W.2d 23 (Tex. App.--Beaumont 1991, writ denied). That case involved a similar allegation of a bus driver leaving a student at the wrong location; however, the Beaumont Court of Appeals found the plaintiff's claims were not barred by sovereign immunity. Id. at 25. The Contreras court did not engage in the same analysis as the Goston court but instead relied on Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208 (Tex. 1989). However, as the Goston court noted, the supreme court in Mount Pleasant did not reach the issue of sovereign immunity because it was waived and, therefore, unhelpful to the plaintiffs.

We agree with the Goston analysis which, when applied to the facts of this case, bars Ransom's suit based on sovereign immunity. Because we find that the summary judgment can be upheld on the basis of sovereign immunity, we need not consider sole proximate cause. We affirm the summary judgment in favor of the Center.

Karen Angelini, Justice

DISSENTING OPINION

Dissenting Opinion by: Phil Hardberger, Chief Justice, joined by Justice Alma L. Lpez

I would hold that sovereign immunity was waived in this case and respectfully dissent from the majority's opinion. As the majority states, immunity is waived when the plaintiff's injury arises from the operation or use of a motor vehicle. See Tex. Civ. Prac. & Rem. Code Ann. 101.021 (Vernon 1997). The majority concludes, however, that Moran's actions did not relate to the negligent use of a motor vehicle. I disagree.

In order for a claim to fall within the waiver of immunity at issue in this case, the damages suffered by Ransom must have been proximately caused by the negligence of an employee of the Center acting within the scope...