concluding section 101.021(1) not satisfied when plaintiff allegedly bumped her head while closing rear door of school bus that was “parked, empty, with the motor off”; the bus was “only the setting for the injury”
How later courts described this case
- concluding section 101.021(1) not satisfied when plaintiff allegedly bumped her head while closing rear door of school bus that was “parked, empty, with the motor off”; the bus was “only the setting for the injury”
- holding that a high school student who jumped out of her seat in an empty school bus and hit her head on the door frame was not “using” the bus, rather, the bus was merely the place she happened to injure herself
- holding that "arises from” in the Tort Claims Act, Tex. Civ. Prac. & Rem.Code § 101.021(1)(A), "requires a nexus between the injury ... and the operation or use of a motor-driven vehicle”
- holding that it must be governmental employee's negligent operation or use of motor-driven vehicle or piece of equipment that caused damage or injury
Written by the judges who cited it.
The opinion
COOK, Justice,
dissenting.
Because a fact issue remains regarding whether Monica’s injury arose from the operation or use of the school bus, I dissent.
The Court relies on the following facts in deciding that, as a matter of law, the injury did not arise from the driver’s use of the bus. First, at the time of Monica's injury, the bus was parked, empty, with the engine off. Second, neither the driver nor any other students were aboard. I fail to see how these facts foreclose the possibility that the injury arose from the driver’s use of the bus.
In Mount Pleasant Independent School District v. Lindburg, 766 S.W.2d 208 (Tex. 1989), the Court held that “ ‘use’ means ‘to put or bring into action or service; to employ for or apply to a given purpose’.... ” Id. at 211 (citation omitted). A jury could conclude that a “given purpose” of the bus was to provide a place for band students to await the end of the competition. Therefore, by leaving the bus open for students to enter, the driver could have been “employing” the bus for a given purpose. The fact that the driver was away from the bus does not establish, as a matter of law, that the bus was not being employed for a given purpose. His presence at the time of the injury is irrelevant.
For the above reasons, I believe a fact issue remains regarding whether the injury arose from the use or operation of the bus. Therefore, I dissent.
GAMMAGE, J., joins in this opinion.