Austin Independent School District v. Maria Teresa Gutierrez, Individually and as Independent Administratrix of the Estate of Adriana Pamela Gutierrez

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-00-00645-CV

Austin Independent School District, Appellant

v.

Maria Teresa Gutierrez, Individually and as Independent Administratrix of the Estate of

Adriana Pamela Gutierrez, Deceased, Appellee

FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY

NO. 71,523-A, HONORABLE GUY S. HERMAN, JUDGE PRESIDING

Immediately after disembarking from a school bus, eight-year-old Adriana Gutierrez

was struck and killed by a passing motorist. Appellee Maria Teresa Gutierrez, Adriana's mother,

filed suit against several defendants, including appellant, Austin Independent School District

("AISD"). Even though Gutierrez's pleadings alleged a cause of action against AISD pursuant to

the Texas Tort Claims Act, AISD filed a plea to the jurisdiction contending that its immunity from

suit deprived the trial court of subject-matter jurisdiction. The trial court denied AISD's plea to the

jurisdiction. AISD brings this interlocutory appeal from that denial. We will affirm.

THE CONTROVERSY

On the afternoon of February 9, 1999, an AISD school bus driven by Barbarita Ruiz

stopped in the 2100 Block of Burton Drive in Austin to drop off eight-year-old Adriana and her

cousin, Raul. The school bus was parked across the street from Adriana's home, so the two children

had to cross Burton Drive. Ruiz honked the bus's horn to signal the children that it was safe to cross

the street. Raul went across safely, but as Adriana crossed the street she was hit by a third-party

vehicle. It was later determined that the driver of that vehicle was intoxicated. Adriana was taken

to Brackenridge Hospital where she died the following morning.

In Gutierrez's pleadings, she argued that AISD "was negligent in the operation or use

of a motor-driven vehicle" and was liable pursuant to section 101.021(1)(A) of the Texas Tort

Claims Act ("the Act"). (1) Gutierrez claims that through specific actions taken by the bus driver

involving negligent use or operation of the school bus, AISD waived its immunity under the Act.

The actions described by Gutierrez were (1) the failure to use safe and appropriate procedures during

the transportation process, which includes the unloading of school children, and (2) the use of the

horn to signal Adriana to cross when it was not safe for her to do so.

In response to Gutierrez's pleadings, AISD filed a plea to the jurisdiction and a

motion for summary judgment. In the district's plea to the jurisdiction, AISD contended that it was

immune from suit and its immunity was not waived by the bus driver's actions. AISD alleged that

the bus driver's actions did not, through the use or operation of a motor-driven vehicle as case law

has defined those terms, cause Adriana's death. The district argued that any actions taken by the

driver as alleged by Gutierrez involved only supervision or control of children (or the failure

thereof), which does not waive the school district's immunity from suit. AISD concluded that as

there was no waiver of immunity from suit, the trial court lacked subject-matter jurisdiction.

The trial court denied both the plea to the jurisdiction and the motion for summary

judgment. AISD filed an interlocutory appeal from the denial of the plea to the jurisdiction. (2)

SCOPE OF REVIEW

This is an interlocutory appeal from the denial of a plea to the jurisdiction. AISD

contends that it is immune from suit and that Gutierrez is barred from bringing an action against the

school district. (3) Therefore, the only issue before this Court is whether the trial court has subject-matter jurisdiction over Gutierrez's cause of action. We do not address the denial of the motion for

summary judgment as it is not before this Court.

The Texas Supreme Court recently discussed pleas to the jurisdiction in the context

of the Texas Tort Claims Act. See Texas Dep't of Criminal Justice v. Miller , 44 Tex. Sup. Ct. J. 963

(June 21, 2001). The court found that because the Act defines a narrow set of circumstances in

which a government entity waives sovereign immunity, an appellate court must first determine the

scope of the waiver granted by the terms of the Act, and second examine the specific facts of the case

to determine if they fall within the Act's scope. Id . at 964 (citing Kerrville State Hosp. v. Clark , 923

S.W.2d 582, 584 (Tex. 1996), for the first step). (4) To determine the scope of the waiver we will

examine the applicable sections of the Act with an emphasis on the terms "use" and "operation" as

they relate to a motor-driven vehicle. In examining the facts of the case, we take the factual

allegations of the plaintiff's petition as true, as required for a plea to the jurisdiction. Brannon v.

Pacific Employers Ins. Co. , 224 S.W.2d 466, 469 (Tex. 1949).

At this jurisdictional stage of the proceedings, we are not permitted to address the

merits of this case. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). Gutierrez need

not prove that the bus driver's actions did constitute a "use" or "operation" of a motor-driven vehicle

for this Court to affirm the trial court's order. However, for this Court to find that AISD has not

waived its immunity from suit, AISD must prove as a matter of law that the driver's actions did not

constitute "use" or "operation" of a motor vehicle.

DISCUSSION

School districts are immune from liability for personal injuries under the Texas Tort

Claims Act, unless the injury arises from a governmental employee's operation or use of a motor-driven vehicle. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021 (1)(A), .051 (West 1997);

LeLeaux v. Hamshire-Fannett Indep. Sch. Dist. , 835 S.W.2d 49, 51 (Tex. 1992). To establish a

waiver of immunity from suit, a plaintiff need only allege that a government motor vehicle was used

or operated, and that there was a nexus between the injury and the operation or use of the motor

vehicle by a government employee. Martinez v. Via Metro. Transit Auth. , 38 S.W.3d 173, 176 (Tex.

App.--San Antonio 2000, no pet.); see also LeLeaux , 835 S.W.2d at 51 .

The first step in determining if there was a waiver of immunity is to decide if there

was a use or operation of a motor vehicle. The Texas Tort Claims Act does not define the terms

"use" or "operation," so we apply their common and ordinary meanings. Satterfield v. Satterfield ,

448 S.W.2d 456, 459 (Tex. 1969). "Use" is defined as "to put or bring into action or service; to

employ for or apply to a given purpose." 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)). Gutierrez

points to a broad reading of the term "use" by the Texas Supreme Court. See Mid-Century Ins. Co.

v. Lindsey , 997 S.W.2d 153, 164 (Tex. 1999) (holding in liability insurance contract case that

accidental discharge of gun mounted over rear window of parked pickup truck by child while

climbing through rear window is "use" of motor vehicle as required by policy). The definition of

"operation" 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.)).

In general, when applying the term "use" or "operation" in school bus cases, appellate

courts have examined whether the employee's act involved actual use or operation of the vehicle,

rather than the supervision of children. Ransom v. Center for Health Care Servs. , 2 S.W.3d 643, 645

(Tex. App.--San Antonio 1999, pet. denied); Goston v. Hutchinson , 853 S.W.2d 729, 733 (Tex.

App.--Houston [1st Dist.] 1993, no writ); Estate of Garza v. McAllen Indep. Sch. Dist. , 613 S.W.2d

526, 528 (Tex. Civ. App.--Beaumont 1981, writ ref'd n.r.e.). If the employee's act involved only

supervision or control, immunity has not been waived, even if the act took place on or near the motor

vehicle. Goston , 853 S.W.2d at 733 ; see also Estate of Garza , 613 S.W.2d at 528 .

The second step requires an understanding of the nexus between the injury and the

use or operation of the vehicle that is required. The Texas Supreme Court determined in LeLeaux

that the statutory phrase "arises from" requires that there be some connection between the injury and

the act of using or operating the vehicle. 835 S.W.2d at 51 . The school employee's negligent act

in using or operating the vehicle must have played some role in causing the injury. See id .

In the present case, AISD argues that it is immune from suit and that the actions of

the bus driver did not result in a waiver of immunity. AISD contends that the procedures used by

the bus driver when unloading passengers, including honking the horn, do not constitute a use or

operation of the vehicle. Instead, AISD claims that these procedures are supervisory in nature and

are analogous to the actions taken by an individual supervising children at a crosswalk.

On the other hand, Gutierrez contends that the only "use" of a school bus is to

transport students and the process of transporting them does not end until the children have safely

crossed the street. Gutierrez specifically points to the bus driver's use of the horn to signal Adriana

that it was safe to cross the street as evidence that this use or operation of the motor vehicle

contributed to the accident. Gutierrez argues that this means of signaling students was an

inappropriate use of the vehicle. For support, she cites the training manual for bus drivers, which

describes a preferred method for ensuring students' safety when crossing the street. Gutierrez argues

that although Martinez's drunk driving was a factor contributing to the accident, the incident may

have been prevented if the bus driver had followed standard procedures as described in the bus driver

training manual. Instead, the bus driver honked the horn, confusing both Adriana and the other

drivers.

The parties have cited us to most of the Texas school bus cases in which injured

students attempted to sue the school district on the theory that immunity was waived through the use

or operation of a motor vehicle. Our review, however, reveals that most of these cases are clearly

distinguishable. (5) We will not discuss cases in which the injury occurred on the bus itself or where

the injury occurred before a bus arrived at the scene. See LeLeaux , 851 S.W.2d at. 50-51 (resolving

case in which student hit her head jumping through emergency door on parked and unattended school

bus); Luna v. Harlingen Consol. Indep. Sch. Dist. , 821 S.W.2d 442 , 443 (Tex. App.--Corpus Christi

1991, writ denied) (resolving case in which children were hit by third party's vehicle while awaiting

arrival of school bus at poorly planned location); Heyer v. North E. Indep. Sch. Dist. , 730 S.W.2d

130, 130-31 (Tex. App.--San Antonio 1987, writ ref'd n.r.e.) (resolving case in which driver lost

control of private vehicle and hit students waiting at bus stop on school grounds); Estate of Garza ,

613 S.W.2d at 527 (resolving case in which student was stabbed to death by third party while riding

school bus). We will discuss only those cases in which students were hit by another car after they

disembarked from a school bus.

One of the first school bus cases to discuss a school district's waiver of immunity

when a student was injured was Hitchcock v. Garvin , 738 S.W.2d 34 (Tex. App.--Dallas 1987, no

writ). A student exited the bus and was crossing the street when a car hit her. Id . at 35. The

plaintiffs alleged that the bus driver did not activate his flashers to signal that students were exiting

the bus, which both the bus driver training guide and Texas traffic statutes required. Id . at 36. The

Dallas court held that the issue of whether the driver had activated his flashers was a question of fact

and remanded the case to the trial court for a trial on the merits. Id . at 37-38. In addition, the court

stated that if the driver had failed to operate his flashers it would constitute an "act or omission

arising from the operation or use" of a motor vehicle which waives immunity. (6) Id . at 37.

In Mount Pleasant , the school bus left the scene before the accident occurred. Mount

Pleasant Indep. Sch. Dist. v. Estate of Lindburg , 766 S.W.2d 208, 210 (Tex. 1989). Two students

were delivered safely to a bus stop on the east side of the highway. One student crossed the highway

without incident. The bus driver waited for the seven-year-old girl to cross, but left when she failed

to do so. Another driver also tried to signal the girl to cross, but she remained on the east side of the

highway. Once the bus was approximately 200 yards from the girl, she attempted to cross the

highway; a car hit and killed her. The Texas Supreme Court did not discuss whether the accident

arose from the operation or use of a motor vehicle, but instead found that the district had not waived

its immunity because the bus driver acted in the manner expected of a reasonably prudent person in

the same position. Id . at 213. The court focused its attention on the point that school bus drivers are

not common carriers and should not be held to a heightened standard of care. Id .

A second case in which a student was hit by a car after the school bus left the scene

is Contreras v. Lufkin Independent School District , 810 S.W.2d 23, 24 (Tex. App.--Beaumont 1991,

writ denied). In that case, a six-year-old girl's proper bus stop was located across the street from her

home. The bus erroneously delivered her to a stop around the corner. The school bus had left the

scene when the girl attempted to cross the street and was struck by a car. The court found that

dropping the girl off at the wrong stop did arise from the operation and use of the motor vehicle, and

therefore immunity was waived. Id . at 26.

The Contreras decision, however, was criticized in Goston v. Hutchison , 853 S.W.2d

729, 733 (Tex. App.--Houston [1st Dist.] 1993, no writ). In that case, a bus driver allowed two

students to exit the bus at an undesignated stop at their request. They got into a car driven by a

friend and were involved in a collision. One of the students was killed and the other was seriously

injured. The Houston court decided that leaving a student at the wrong stop was a failure to properly

supervise the student and did not involve the use or operation of a motor vehicle. Id . at 734. Thus,

the court concluded that the bus driver's actions did not waive immunity. Id .

The final case is Ransom v. Center for Health Care Services, 2 S.W.3d 643 (Tex.

App.--San Antonio 1999, pet. denied). Ransom is not a school bus case, but it does involve a

governmental entity transporting an individual, and the San Antonio court relied on previous school

bus cases in making its decision. Ransom, a mentally retarded man, was delivered to the bus stop

across the street from his group home at three o'clock in the morning. The driver waited for Ransom

to cross the street, but when he did not, the driver left the scene. When Ransom attempted to cross

the street, a drunk driver hit him. The court followed the rationale in Goston and held that the

plaintiff's suit was barred by sovereign immunity. Id . at 645. The court decided that any action

taken by the driver was supervisory rather than a use or operation of the motor vehicle. Id .

The present case has facts that are unique when compared with the above cases. In

both Contreras and Goston , the bus driver dropped the student off at the wrong stop and then left

the scene. The appellate courts in those cases differed regarding whether the drivers' actions were

supervisory or were an aspect of a use or operation of the motor vehicle. In both Mount Pleasant

and Ransom , the injured individual was left at the correct stop but delayed crossing the street, and

the bus left. All four of these cases are factually distinguishable from the present case because

Adriana's bus was still at the scene when the incident occurred. It is much easier to find there was

not "use" or "operation" when there was no bus present at the scene to use or operate. Even with

this distinction, Contreras provides authority for the argument that use or operation can be found

even when the bus is no longer present if the bus driver took affirmative action (leaving the child at

the wrong stop) that may have contributed to the accident.

The case closest to the facts in this cause is Hitchcock from the Dallas court of

appeals. See 738 S.W.2d at 34 . In Hitchcock , the bus driver allegedly failed to take action that could

have helped the student cross the street safely, in that he did not turn on his flashing lights. In this

case, the driver attempted to take the affirmative action of honking the horn to help the student cross

the street. See id . at 36. In both cases, the decisions made by the drivers (either to act or not to act)

were contrary to their training. In reviewing all of the other appellate cases, we find that Hitchcock

is the most analogous to the current cause. Its holding, that the bus driver's action constituted a use

or operation of a motor vehicle, is highly persuasive and applicable to this case.

AISD has an extremely heavy burden in this appeal from a denial of its plea to the

jurisdiction. AISD must demonstrate from the body of appellate case law that the factual allegations

contained in Gutierrez's petition cannot, as a matter of law, constitute an operation or use of a motor

vehicle. After reviewing the cases cited by AISD, we hold that the school district has not met this

burden. Most of the cases upon which AISD relies involve situations in which the school bus was

not present at the scene when the accident occurred, or in which the accident occurred on the bus

itself, but did not result from actions taken by the bus driver. It is easy to argue that those cases

involved supervisory actions rather than "use" or "operation" of a motor vehicle by a governmental

employee. Here, the bus was present at the time of the accident, and the bus driver took the

affirmative action of honking the horn (7) which may have contributed to the accident. The cases cited

by the parties would seem to establish that this constitutes a "use." See, e.g., Hitchcock , 738 S.W.2d

at 34 . This case may be even stronger than Hitchcock where the bus driver took no action, because

the driver of Adriana's bus took affirmative action. Cases relied on by AISD focus on the fact that

the bus was not present at the time of the accident to determine that the bus driver's actions were

supervision rather than "use" or "operation." Here, the bus's presence at the accident scene

distinguishes it from those cases. Based on these facts, the court was correct in denying AISD's plea

to the jurisdiction.

CONCLUSION

In conclusion, we hold that AISD has not demonstrated as a matter of law that the bus

driver's honking of the horn did not constitute "use" or "operation" of a motor vehicle. We affirm

the judgment of the trial court.

Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: August 30, 2001

Publish

1. Section 101.021of the Act reads:

§ 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:

the property damage, personal injury, or death arises from the operation or use

of a motor-driven vehicle or motor-driven equipment . . . .

Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (1)(A) (West 1997) (emphasis added); s ee also id.

§ 101.051.

2. A party may appeal from an interlocutory order only under certain circumstances. See id .

§ 51.014 (West Supp. 2001). These include the denial of a plea to the jurisdiction by a government

entity. Id . § 51.014(8). However, a party is not allowed to appeal an interlocutory order denying

summary judgment , unless it is based on the assertion of immunity by an individual officer or

employee of the state , or unless the claim involves a member of the print or electronic media. Id .

§ 51.014(5), (6). As neither of these circumstances were present in this case, AISD is unable to

appeal the denial of the motion for summary judgment. Therefore, the denial of AISD's motion for

summary judgment will not be considered by this Court. See Novak v. Stevens , 596 S.W.2d 848, 849

(Tex. 1980).

3. A governmental entity may claim immunity from suit or immunity from liability . Texas Dep't

of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999). Immunity from suit completely bars an action

against the state unless the state waives its immunity and consents to suit. Id . This is a jurisdictional

issue because, without the state's consent, a trial court lacks jurisdiction to hear the case. Id .

Immunity from liability protects a government entity from judgment, but does not prevent the case

from going to trial. Id . This is an affirmative defense that must be pleaded, rather than an issue to

be raised in a plea to the jurisdiction. Id . At this stage of the proceeding, the issue of immunity from

liability is not before us. The denial of AISD's plea to the jurisdiction only raises the issue of

immunity from suit .

4. The statute reads as follows:

§ 101.025. Waiver of Governmental Immunity; Permission to Sue

Sovereign immunity to suit is waived and abolished to the extent of liability created by

this chapter.

A person having a claim under this chapter may sue a governmental unit for damages

allowed by this chapter.

Tex. Civ. Prac. & Rem. Code Ann. § 101.025 (West 1997).

5. We note at the outset that none of the cases cited by either party involve pleas to the

jurisdiction. Most of the case law regarding the parameters of use of a motor vehicle have arisen in

a summary judgment context.

6. Appellant seeks to distinguish Hitchcock on the basis that failure to activate the flashers was

a violation of a statute and therefore negligence per se . A review of the case demonstrates that the

court's decision was not based on this rationale. Hitchcock v. Garvin , 738 S.W.2d 34, 37 (Tex.

App.--Dallas 1987, no writ).

7. We take as true, as we must for jurisdictional purposes, Gutierrez's contention that the bus

driver honked the horn to signal Adriana to cross the street. Brannon v. Pacific Employers Ins. Co. ,

224 S.W.2d 466, 469 (Tex. 1949).