Vidor Independent School District v. Levi Bentsen, by and Through Next Friend, Glynda Bentsen and Glynda Bentsen, Individually

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-04-401 CV

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VIDOR INDEPENDENT SCHOOL DISTRICT, Appellant

V.

LEVI BENTSEN, by and through his next friend, GLYNDA BENTSEN

and GLYNDA BENTSEN, individually, Appellees

On Appeal from the 260th District Court

Orange County, Texas

Trial Cause No. D030936-C

MEMORANDUM OPINION

Vidor Independent School District ("Vidor") brings this interlocutory appeal from the

trial court's denial of Vidor's plea to the jurisdiction, which was based on sovereign

immunity. The underlying suit was brought by Levi Bentsen and Glynda Bentsen, his

mother, against Vidor and Wilt Alexander, III, an employee of Vidor, for personal injuries

sustained by Levi. (1) Levi was injured when Alexander used a rope attached to his personal

truck to move a concrete picnic table. Levi became entangled in the rope while it was

attached to the truck and dragged by it. The Bentsens sued Vidor and Alexander alleging

Levi's injuries were caused by the operation or use of a motor-driven vehicle. See Tex. Civ.

Prac. & Rem. Code Ann. § 101.021 (1)(A) (Vernon 1997). The trial court severed the cause

against Alexander and pursuant to settlement dismissed all claims against him.

Subsequently, Vidor filed an amended plea to the jurisdiction noting the dismissal of

Alexander from the suit. In its amended plea, Vidor contended immunity has not been

waived because Alexander is no longer liable to the Bentsens, and because the Bentsens

failed to plead facts establishing a waiver, including any facts establishing proximate cause.

The trial court denied Vidor's plea. From that order, Vidor appeals raising two issues.

Sovereign immunity encompasses two distinct legal principles: immunity from suit

and immunity from liability. Tex. Dep't of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999)

(per curiam). Immunity from liability does not affect a court's jurisdiction to hear a case, but

rather is an affirmative defense and must be pleaded to prevent waiver. Id . Immunity from

suit defeats a trial court's subject-matter jurisdiction over a lawsuit and is properly asserted

in a plea to the jurisdiction. Id .

Because the question of subject-matter jurisdiction is a question of law, we review de

novo a trial court's order denying a jurisdictional plea based on sovereign immunity.

Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998). Where, as here, there was

no evidence presented to the trial court on the jurisdictional issue, we look solely to the

pleadings to determine whether the trial court's jurisdiction was properly invoked. See

Archibeque v. North Tex. State Hosp.-Wichita Falls Campus , 115 S.W.3d 154 , 157 (Tex.

App.--Fort Worth 2003, no pet.).

Vidor's first issue maintains the trial court erred in denying its plea because there is

no waiver of immunity from liability under Tex. Civ. Prac. & Rem. Code Ann. §

101.021 (1)(B) (Vernon 1997). A governmental unit is liable for personal injury caused by

the wrongful act or omission or negligence of an employee if "the employee would be

personally liable to the claimant according to Texas law." Id . Vidor reasons that because

of the settlement and release, Alexander could not be personally liable to the Bentsens and

therefore immunity has not been waived.

Vidor recognizes that in Driskill v. State , 787 S.W.2d 369, 371 (Tex. 1990), the

Supreme Court of Texas held "a claimant's release of a state employee does not have the

effect of releasing the State from liability." Vidor, however, claims the later case of DeWitt

v. Harris County , 904 S.W.2d 650, 654 (Tex. 1995), supports its position. Vidor also relies

upon K.D.F. v. Rex , 878 S.W.2d 589, 597 (Tex. 1994), and City of Houston v. Kilburn , 849

S.W.2d 810, 812 (Tex. 1993). All three of these cases recognized that if the employee is

entitled to official immunity, then the governmental unit's sovereign immunity remains

intact. DeWitt , 904 S.W.2d at 654 ; K.D.F. , 878 S.W.2d at 597 ; and Kilburn , 849 S.W.2d at

812 . As DeWitt explained, "official immunity, like any other affirmative defense the

employee may have, becomes relevant to the governmental entity's liability." DeWitt , 904

S.W.2d at 654 . The Court noted that a governmental entity, "were it a private person, . . .

would be entitled to assert any affirmative defenses its employee has to liability." Id.

Relying on DeWitt , Vidor contends "the employer is entitled to assert any defense

available to the employee." In this case, it is the affirmative defense of release that Vidor

seeks to assert. However, Vidor's argument ignores Knutson v. Morton Foods, Inc. , 603

S.W.2d 805, 806 (Tex. 1980), wherein the Texas Supreme Court held "the unity of release

rule does not apply to a settlement by an employee or agent to release his principal." See

also McMillen v. Klingensmith , 467 S.W.2d 193 (Tex. 1971). The Driskill court cited

Knutson as support for recognizing that "[a]s a general rule, the settlement with and release

of an employee does not bar a subsequent action against the employer under the doctrine of

respondeat superior for any damages that have not been fully satisfied." (2) Driskill . 787

S.W.2d at 370 (citing Knutson , 603 S.W.2d at 807 ). Nothing in DeWitt suggests the Court

intended that a governmental entity is entitled to assert affirmative defenses that, if it were

a private entity, the private entity would not be entitled to raise. DeWitt allows governmental

units to raise the same affirmative defenses private employers may raise. It did not overrule

Driskill and permit governmental units to raise an affirmative defense that is not available

to private employers.

Further, the statutory language of section 101.021(1)(B) clearly states the issue as

whether the employee would be liable. Official immunity protects individual employees

from liability . See DeWitt , 904 S.W.2d at 653 . Therefore, as DeWitt recognized and in

accordance with the statue, an employee who has official immunity would not be liable; i.e.,

liability never arose. The statute does not provide, as Vidor seeks to interpret it, that a

governmental unit is not liable if the employee would have been, but no longer is, liable. We

overrule issue one.

In issue two, Vidor asserts the Bentsens failed to plead facts establishing a waiver of

sovereign immunity. The Bentsens allege Levi was injured when Alexander dragged him

by a rope attached to a motor-driven vehicle. Vidor claims Levi was injured when his feet

became entangled in the rope and he fell, thereby allowing him to be dragged several feet.

Thus, Vidor contends, Levi's injuries were caused by the rope, not the vehicle.

To establish a waiver of immunity from suit under section 101.021(1), a plaintiff need

only allege that a motor-driven vehicle was used or operated, and that there was a nexus

between the injury and the operation or use of the motor-driven vehicle by a government

employee. See LeLeaux v. Hamshire-Fannett Ind. Sch. Dist ., 835 S.W.2d 49, 51 (Tex.

1992). The Texas Supreme Court in LeLeaux held that "'use' means 'to put or bring into

action or service; to employ for or apply to a given purpose' and '[o]peration' refers to 'a

doing or performing of a practical work.'" LeLeaux , 835 S.W.2d at 51 (quoting Mount

Pleasant Indep. Sch. Dist. v. Estate of Lindberg , 766 S.W.2d 208, 211 (Tex. 1989)(citations

omitted)). In the present case, "use" occurred when Alexander put his vehicle into action

for the purpose of moving the concrete table. Consequently, the Bentsens have alleged that

a motor-driven vehicle was used or operated.

We next examine whether the Bentsens alleged a nexus between the injury and use

of the motor-driven vehicle. The statute provides the injury must "arise from" the use of the

vehicle. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (1)(A). The Court determined

in LeLeaux that "arises from" requires there be some connection between the injury

negligently caused by a governmental employee and the act of using or operating the vehicle.

See LeLeaux , 835 S.W.2d at 51 . The Bentsens contend the injuries are connected to the use

of the truck because Levi's injuries resulted from being dragged by the truck.

Vidor argues Levi's injuries were not caused by the use of the vehicle, but rather by

Levi becoming entangled in the rope. Vidor suggests the motor vehicle was "the setting"

for Levi's injuries, thus the injury did not arise from the use of the vehicle. Vidor relies on

a number of cases in support of its contention. That reliance is misplaced because in those

cases the vehicle was merely the situs of the injury and the operation of the vehicle did not

cause it to become an active participant in the events which caused the injury. See LeLeaux ,

835 S.W.2d at 51 (school district was not liable when a student hit her head jumping through

emergency door on parked and unattended school bus); Hopkins v. Spring Indep. Sch. Dist. ,

736 S.W.2d 617, 619 (Tex. 1987) (school district was not liable for failing to provide

adequate medical care to a student with cerebral palsy who suffered convulsions while on a

school bus); Luna v. Harlingen Consol. Indep. Sch. Dist ., 821 S.W.2d 442 , 445 (Tex. App.--Corpus Christi 1991, writ denied) (even though the school district had control over the

planning and layout of the bus stop, the school district was not liable when children were hit

by third party's vehicle while awaiting arrival of school bus at the poorly planned location);

Naranjo v. Southwest Indep. Sch. Dist ., 777 S.W.2d 190, 192-93 (Tex. App.--San Antonio

1989, writ denied) (school district was not liable when students suffered injuries while

working on a privately owned vehicle in an auto mechanics class); Heyer v. North East

Indep. Sch. Dist ., 730 S.W.2d 130, 132 (Tex. App.--San Antonio 1987, writ ref'd n.r.e.)

(school district was not liable when a third party lost control of a private vehicle and hit

students waiting at bus stop on the school grounds); Estate of Garza v. McAllen Indep. Sch.

Dist ., 613 S.W.2d 526 (Tex. Civ. App.--Beaumont 1981, writ ref'd n.r.e.) (school district was

not liable when a student was stabbed to death by third party while riding school bus).

In the case at bar, Alexander's vehicle was not simply the "place" where the injury

happened. The facts alleged do not establish that the rope, by itself, dragged Levi or that his

injuries were caused when he became entangled in the rope and fell. The alleged facts show

Levi's injuries were caused when the vehicle was put in operation and pulled on the rope,

causing Levi to be dragged by the vehicle. The rope as an inanimate object was incapable

of inflicting dragging injuries without the aid of a force acting upon the rope, which in this

case was the motor vehicle. Issue two is overruled and the trial court's order is affirmed.

AFFIRMED.

CHARLES KREGER

Justice

Submitted on February 24, 2005

Opinion Delivered July 14, 2005

Before Gaultney, Kreger, and Horton, JJ.

1.

We note the current Election of Remedies Statute, Tex. Civ. Prac. & Rem. Code

Ann. § 101.106 (Vernon Supp. 2005), does not apply to this case, as the filing date of this

action (June 30, 2003) predates the effective date of the relevant amendments to the statute.

2.

We do not address the issue of satisfaction, or whether a plea to the jurisdiction

would be the appropriate vehicle to raise that issue, as it has not been presented to either this

court or the trial court.