Mount Pleasant Independent School District v. Estate of Lindburg Ex Rel. Lindburg

MAUZY, Justice,

concurring and dissenting.

This case involves the question of whether the standard of care owed by the operator of a school bus to a student passenger is a high degree of care or merely ordinary care and the interpretation of the phrase “operation or use of a motor-driven vehicle” as it pertains to the Texas Tort Claims Act. Tex.Civ.Prac. & Rem.Code § 101.021 (Vernon 1986 and Supp.1988). I believe that this case involved the operation or use of a school bus. I respectfully dissent because I cannot agree with the court’s refusal to hold school districts to a *216 high degree of care in transporting children of tender years.

The court correctly points out that it was Mount Pleasant Independent School District policy that a child was not to he allowed to get off the school bus at a different stop in the afternoon unless the child had a note from the principal or his parents. The court then attempts to explain away the bus driver’s failure to follow this policy by noting that Gullion transported approximately 175 students to and from school everyday and “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.”

If this is true, it does not excuse Gul-lion’s and Mount Pleasant Independent School District’s negligence. Gullion testified he had fifteen years of experience as a bus driver. Gullion had been driving Misty to and from school for six weeks. If Gul-lion found following standard safety policies was “a difficult, if not impossible, task,” he could have informed his superiors of that fact. If Mount Pleasant Independent School District has overburdened its bus drivers with more students than they can possibly manage to provide adequate care for, this is evidence of negligence, if not recklessness, and is not the kind of conduct that this court should condone.

Gullion further acknowledged at trial that it was a standard safety procedure of the Mount Pleasant Independent School District to keep his school bus stopped until all children had safely crossed the street, and that it was a standard safety procedure of the Mount Pleasant Independent School District for a bus driver to determine on which side of the highway a child lived. The court disposes of Gullion’s failure to wait until Misty crossed the road by stating, “Gullion waited a sufficient length of time to allow Misty to cross the highway although she did not appear to want to do so.” The court does not attempt to enlighten us as to what is “a sufficient length of time” to allow a seven year-old to cross a busy highway.

There was testimony at trial that after Misty got off the bus, she took several steps away from and to the back of the bus, and then bent over apparently to tie her shoe. When she stood up, the bus had already gone.

Significantly, the court does not address the question of why John Gullion did not ask Misty what side of the road she lived on. Misty and Jason Hinton got off the bus on the east side of the highway. Gul-lion testified that he knew that the house on the east side of the highway at the second bus stop was Jason Hinton’s home; and that the nearest house on the east side of the highway was approximately 150 yards north of Jason’s home. He further testified that, on the east side of the highway there were no homes south of Jason’s home for at least one-half mile; only forest and open pastures until U.S. Highway 271 connects with an interstate highway. The north entrance to the mobile home park where Misty lived was on the west side of the highway.

Although the court holds that the Lind-burgs’ recovery in this case is barred by sovereign immunity, and thereby disposes of the petitioner’s appeal, it goes on to address the question of what standard of care is applicable to the operation of school buses. The majority reasons that, since “there has been no suggestion that the school district will allow members of the general public to hire the bus for carriage” and “there is no evidence that the school children were required to furnish any type of consideration in order to be transported,” the school district is not a common carrier, and thus is held to an ordinary standard of care.

Texas courts have extended the duty to exercise a high degree of care to carriers transporting passengers without requiring the carrier to fall strictly within the common carrier definition. For example, the high degree of care standard has been applied to elevators and escalators. Brewer v. Otis Elevator Co., 422 S.W.2d 766 (Tex.App.—Houston [1st Dist.] 1967, writ ref’d n.r.e.); Mattox v. C.R. Anthony Co., 326 S.W.2d 740 (Tex.App.—Beaumont 1959, *217 writ ref'd n.r.e.). The court correctly points out that, “neither an escalator nor an elevator is a motor vehicle under the definition of the statute, § 101.021(l)(a),” but fails to delineate the relevance of this distinction.

This case deals with a child of tender years being struck and killed by a pickup truck after being left unattended by a school district employee on the roadside of a U.S. highway. The public policy considerations involved in the transportation of children of tender years are stronger than the public policy considerations which brought about an application of the high degree of care standard being applied to elevators and escalators.

A child riding in a school bus should be entitled to the same degree of care as that exercised for the benefit of a passenger on a common carrier. 1 A school child is not in a position to negotiate a contract containing the standard of care to be required of the bus driver. The school child may not have a choice as to the mode of transportation to and from school, and the child may be required to attend school until the age of sixteen. Tex.Ed.Code Ann. § 21.032 (Vemon 1987). The mere fact that a school bus is not available as transportation for the public in general, but is limited to students in the school district, is not a reason for treating those passengers differently from the passengers on a common carrier.

Parents demand that school districts exercise the highest degree of care in providing for their child’s safety. This demand is not unreasonable. I believe that our children are not only our legacy, but our society’s most cherished treasure. I would hold school districts to a high standard of care in the transportation of children of tender years.

. The United States Supreme Court in the case of Indianapolis and St. Louis Railroad Co. v. Horst, 93 U.S. (3 Otto) 291, 23 L.Ed. 898 (1876), determined that a high standard of care should be applied to a passenger accompanying his cattle on a freight train. The court stated:

But, upon principle, why should not the law be so in this case? Life and limb are as valuable, and there is the same right to safety, in the caboose as in the palace car.... The same considerations apply to freight trains; the same dangers are common to both.... There is no reason, in the nature of things, why the passenger should not be as safe upon one as the other. With proper vigilence on the part of the carrier, he is so. The passenger has no authority upon either, except as to the personal care of himself.... The public have no choice but to use it. The standard of duty should be according to the consequences that may ensue from carelessness.

Although this case did not contrast a common carrier versus a private carrier, the same reasoning is applicable.