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Date: 01-06-2021
Case Style:
Hallsville Independent School District v. Sabrina Garcia, Individually and as next friend of G.G., a Minor
Case Number: 06-20-00070-CV
Judge: Josh R. Morriss, III
Court: Court of Appeals
Sixth Appellate District of Texas at Texarkana
Plaintiff's Attorney: Hallsville Independent School District
Dan C. Kelley
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Texarkana, Texas - Civil attorney represented Hallsville Independent School District with a filing plea to the jurisdiction claiming that Garcia failed to allege a valid waiver of governmental immunity from suit charges.
In her original petition, Garcia claimed that G.G. was a student of the District when he
was being loaded onto a school bus by a District bus driver. Garcia claimed that the bus driver
failed to follow the proper procedures for loading G.G. and further failed to lock G.G.’s
wheelchair while attempting to load him. As a result, the wheelchair flipped forward causing
G.G. to fall and sustain serious injuries. Garcia alleged that these actions amounted to
negligence in the operation or use of a motor vehicle, thereby waiving the District’s sovereign
immunity.
In response, the District filed a plea to the jurisdiction claiming that, as a school district,
it is a unit of local government protected from suit by governmental immunity, except in cases
involving the operation or use of a motor vehicle. The District alleged that Garcia’s claims for
failing to follow the proper procedures for loading G.G. and for failing to lock his wheelchair
while attempting to load him onto the school bus did not constitute claims based on the operation
3
or use of a motor vehicle. In support of its plea to the jurisdiction, the District attached the
affidavit of Jana Hickson.
1 Hickson was a District employee and was present on the Hallsville
East Elementary campus on the date of the accident.
Hickson testified that, on October 27, 2017, an early release day, she was assisting with
assembling the special needs and handicap students outside the East Elementary school building
area where the school buses load and unload the children. This area is behind the school
building where there is a driveway for school buses to pull into a loading/unloading zone. There
is a curbed sidewalk with a ramp cut into the curb, allowing students in wheelchairs to enter or
leave the sidewalk onto the driveway without having to navigate the sidewalk curb. Hickson
explained that, on either side of the ramp located on the curb side of the sidewalk, there are
vertical metal poles that support the overhead awning for the sidewalk. According to Hickson,
the ramp area between the vertical poles is wide enough to permit a school bus equipped with a
mechanical/hydraulic wheelchair lift to use the lift to assist in loading and/or unloading a child in
a wheelchair.
Hickson explained that Charles Wheeler, a District bus driver, arrived at the elementary
campus and stopped the school bus near the sidewalk ramp used to load and unload students who
1Hickson’s affidavit was introduced and accepted by the trial court as an exhibit at the hearing. Although the
District also attached the affidavit of Jessica Purifoy to its plea to the jurisdiction, it did not offer that affidavit as a
hearing exhibit. Purifoy testified that she is a school nurse for the Hallsville East Elementary campus and was
employed in that capacity on October 27, 2017. At approximately 12:45 p.m. that day, Purifoy was called to the
school bus ramp to attend to the injured G.G. When she arrived, G.G. was seated in his wheelchair on the school
bus, his mouth was bleeding, he was complaining of neck pain, and he was unable to fully open his mouth. Purifoy
did not witness the incident in which G.G. was injured, but recalls Wheeler telling her that he failed to lock G.G.’s
wheelchair. She presumed that Wheeler had operated or used the school bus lift to load G.G. onto the bus, as that is
the usual procedure to load a wheelchair-bound student onto the bus. Purifoy testified, however, that she had no
personal knowledge of how G.G. was loaded onto the bus or how he sustained the injuries for which she treated him.
The accident report Purifoy prepared is not entirely accurate, because she did not have personal knowledge of
whether the wheelchair lift was used to load G.G. onto the bus that day.
4
use wheelchairs. Wheeler then exited the bus through the passenger door and walked to the side
of the bus where the mechanical/hydraulic wheelchair lift may be activated and placed on the
ground. Two children who were not wheelchair users then boarded the bus as G.G. sat in his
wheelchair waiting to board the bus. At that time, Wheeler discovered that he had not pulled the
bus forward far enough to allow the wheelchair lift to clear one of the vertical poles adjacent to
the sidewalk ramp. It appeared to Hickson that the bus would need to pull forward
approximately one more foot for the wheelchair lift to clear the vertical pole so it could be
activated. At that point, Hickson told Wheeler that he needed to “pull up some.” Rather than
pull the bus forward, Wheeler picked up G.G.’s wheelchair, with G.G. in it, and moved toward
the passenger door entrance of the bus. Hickman then saw the wheelchair pitch forward causing
G.G. to fall into the stairwell inside the passenger door of the bus.
In response to the District’s plea to the jurisdiction, Garcia filed her first amended
original petition in which she alleged that the District
violated the duty which it owed to Plaintiffs and to others to exercise ordinary
care in the performance of duties related to the operation and use of a motor
vehicle by stopping the school bus in such a manner and at a place that made it
impossible to use the wheelchair lift with which the school bus was equipped to
lift G.G. onto the bus and in failing to lock the student’s wheelchair while
attempting to load G.G. onto the bus, allowing the wheelchair to flip forward and
strike G.G.[’s] face on a step of the bus. Each of these acts and omissions,
singularly or in combination with others, constituted negligence which
proximately caused the occurrence made the basis of this suit and the injuries to
the minor student and damages to Plaintiffs.
5
Because the District’s employee was negligent in the operation or use of a motor vehicle, Garcia
alleged, its sovereign immunity was waived under the Texas Tort Claims Act (TTCA).
2
Following a hearing on the District’s plea to the jurisdiction, at which Hickson’s affidavit
was offered and admitted into evidence, the trial court denied the plea.3
Standard of Review
“Sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in
which the state or certain governmental units have been sued unless the state consents to suit.”
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). “A plea to the
jurisdiction seeks to dismiss a case for want of jurisdiction.” City of Waco v. Kirwan, 298
S.W.3d 618, 621 (Tex. 2009) (citing Miranda, 133 S.W.3d at 226). When reviewing the trial
court’s action on the plea, “we first look to the pleadings to determine if jurisdiction is proper,
construing them liberally in favor of the plaintiffs and looking to the pleader’s intent.” Id. at
221–22. “Whether a court has subject matter jurisdiction is a question of law.” Miranda, 133
S.W.3d at 226 (citing Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855
(Tex. 2002)). Likewise, “[w]hether a pleader has alleged facts that affirmatively demonstrate a
trial court’s subject matter jurisdiction is a question of law,” as is the issue of “whether
undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction.” Id. Therefore,
when the facts are undisputed, we review the trial court’s ruling on a plea to the jurisdiction de
novo. Id.
2Garcia conceded that Hallsville is a school district and a unit of local government subject to the TTCA.
3Hallsville also filed a supplemental plea to the jurisdiction, and Garcia filed a response.
6
It is undisputed that the District is a governmental unit under the TTCA and is immune
from Garcia’s claims unless the statutory waiver of immunity applies. See TEX. CIV. PRAC. &
REM. CODE ANN. § 101.001(3)(B) (defining “governmental unit” to include school district);
Miranda, 133 S.W.3d at 224 (sovereign immunity deprives trial court of subject-matter
jurisdiction unless State consents to suit); Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540,
542 (Tex. 2003) (discussing governmental immunity and statutory waiver of immunity under the
TTCA).
The District has not disputed the jurisdictional facts Garcia alleged, most of which were
based on the sole item of evidence introduced at the hearing—the affidavit of Hickson. We,
therefore, must determine on de novo review whether Garcia’s pleadings, together with the
undisputed evidence of jurisdictional facts, established a waiver of governmental immunity.
Miranda, 133 S.W.3d at 226.
The Pleadings and Undisputed Evidence Established a Valid Waiver of Governmental Immunity
Under the TTCA, a governmental unit’s sovereign immunity is waived for personal
injury “proximately caused by the wrongful act or omission or the negligence of an employee
acting within his scope of employment if . . . the personal injury . . . 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).
On appeal, Garcia contends that Wheeler’s conduct of stopping the bus in such a manner
and at a place that made it impossible to use the wheelchair lift constituted the operation and use
of a motor vehicle under the TTCA, ultimately resulting in injury to G.G. Hickson’s affidavit
7
reflects that Wheeler stopped the bus approximately one foot short of permitting sufficient
clearance to use the bus’s wheelchair lift to load G.G. onto the bus. In fact, Hickson told
Wheeler that he needed to “pull up some” to clear one of the vertical metal poles supporting the
overhead awning for the sidewalk. It is apparent from the evidence that, had Wheeler moved the
bus forward approximately one foot, G.G. could have been loaded onto the bus by means of the
bus’s mechanical/hydraulic wheelchair lift. It is also apparent from the evidence that Wheeler
exited the bus for the purpose of activating the mechanical/hydraulic wheelchair lift and that two
children had already boarded the bus to be transported home before any attempt to load G.G.
onto the bus had been initiated. There is no evidence that the bus’s engine was disengaged.
In determining whether there was a waiver of sovereign immunity, we first analyze the
issue of whether the school bus was in use or operation at the time of the injury. See TEX. CIV.
PRAC. & REM. CODE ANN. § 101.021. Although the TTCA does not define the terms “use” and
“operation,” the Texas Supreme Court has defined “use” as “to put or bring into action or
service; to employ for or apply to a given purpose,” and has defined “operation” as “a doing or
performing of a practical work.” LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d
49, 51 (Tex. 1992).
Cases examining the question of whether a vehicle was used or operated are inherently
fact specific. See Diaz v. Canutillo Indep. Sch. Dist., 311 S.W.3d 588, 594 (Tex. App.—El Paso
2010, no pet.). Nevertheless, Texas courts have recognized a distinction between events
resulting from the negligent operation or use of a motor vehicle and those related to the direction,
control, and supervision of students. Using this distinction, “[w]hen a plaintiff’s injuries arise
8
from an employee’s acts or omissions involving only supervision or control of children,
immunity has not been waived even if the acts took place on or near the bus.” Gibson v.
Garland Indep. Sch. Dist., 378 S.W.3d 613, 618 (Tex. App.—Dallas 2012, no pet.);
Breckenridge Indep. Sch. Dist. v. Valdez, 211 S.W.3d 402, 408 (Tex. App.—Eastland 2006, no
pet.).
4
Negligent supervision, and thus non-waiver, has been found in a wide range of cases. See
Breckenridge, 211 S.W.3d at 405 (leaving child alone on hot bus); Montoya v. Houston Indep.
Sch. Dist., 177 S.W.3d 332, 337–38 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (permitting
child to escape restraints and jump out of moving school bus); King v. Manor Indep. Sch. Dist.,
No. 03-02-00473-CV, 2003 WL 21705382, at *4 (Tex. App.—Austin Jul. 24, 2003, no pet.)
(mem. op.) (dropping child off at bus stop, where child was then hit by car); Goston v.
Hutchison, 853 S.W.2d 729, 731 (Tex. App.—Houston [1st Dist.] 1993, no writ) (dropping child
off at non-designated stop); Luna v. Harlingen Consol. Indep. Sch. Dist., 821 S.W.2d 442, 443
(Tex. App.—Corpus Christi 1991, writ denied) (children injured while waiting at bus stop);
Heyer v. N.E. Indep. Sch. Dist., 730 S.W.2d 130, 130 (Tex. App.—San Antonio 1987, writ ref’d
n.r.e.) (children injured while waiting at bus stop); Estate of Garza v. McAllen ISD, 613 S.W.2d
526, 527 (Tex. Civ. App.—Beaumont 1981, writ ref’d n.r.e.) (child stabbed while riding on
school bus).
5
4Cases employing the operation or use versus supervision distinction can also be explained in terms of the required
nexus between the operation or use of the motor-driven vehicle and the plaintiff’s injuries.
5Although it did not employ the supervision/use dichotomy, the Tyler court held that injuries to a mentally impaired
man who was injured while he actively resisted being loaded onto a bus did not arise from use or operation of the
vehicle. Starkey v. Andrews Ctr., 104 S.W.3d 626, 628–29 (Tex. App.—Tyler 2003, no pet.).
9
Conversely, “[w]hen a plaintiff’s injuries arise from an employee’s ‘affirmative action’
actually using or operating the bus, the school district’s immunity has been waived.”
Breckenridge, 211 S.W.3d at 408; see Harlingen Consol. Indep. Sch. Dist. v. Miranda, No. 13-
18-00391-CV, 2019 WL 1187151, at *4 (Tex. App.—Corpus Christi Mar. 14, 2019, no pet.)
(mem. op.) (driving bus at unsafe speed causing bus to bounce, thereby allowing something or
someone to be thrown against emergency exit door); La Joya Indep. Sch. Dist. v. Gonzalez, 532
S.W.3d 892 (Tex. App.—Corpus Christi 2017, pet. denied) (stopping bus in crossover and
activating warning lights, thereby indicating to passenger that it was safe to cross expressway);
Elgin Indep. Sch. Dist. v. R.N., 191 S.W.3d 263, 272 (Tex. App.—Austin 2006, no pet.)
(negligently locking bus door while child was on bus); Dallas Area Rapid Transit v. Willis, 163
S.W.3d 814, 817 (Tex. App.—Dallas 2005, pet. denied) (parking bus in way contributing to
alighting passenger’s accident); Austin Indep. Sch. Dist. v. Gutierrez, 54 S.W.3d 860, 863–64
(Tex. App.—Austin 2001, pet. denied) (bus driver’s honking horn to signal to children it was
safe to cross street); Hitchcock v. Garvin, 738 S.W.2d 34, 36 (Tex. App.—Dallas 1987, no writ)
(bus driver’s failure to activate flashers to signal that students were exiting bus).
While these cases provide guidance on the issue before us, we also recognize that “[t]he
concept that [loading] a bus is part of the transportation process finds some support in the
language from LeLeaux.” Elgin Indep. Sch. Dist., 191 S.W.3d at 268 (citing LeLeaux, 835
S.W.2d at 50). In LeLeaux, a high school band student jumped into an empty, parked school bus
through a rear emergency door that had been left open. LeLeaux, 835 S.W.2d at 50. When she
10
stood up, she hit her head on the top of the door frame. Id. at 50–51. The Texas Supreme Court
held that the student’s injuries did not arise from the use of the bus:
The bus in this case was not in operation; it was parked, empty, with the motor
off. The driver was not aboard; there were no students aboard. The bus was not
“doing or performing a practical work”; it was not being “put or [brought] into
action or service”; it was not being employ[ed] or applied to a given purpose.”
The bus was nothing more than the place where [the plaintiff] happened to injure
herself.
Id. at 51. Despite the facts in LeLeaux, the court nevertheless recognized that “[t]here is no
sound reason why the acts of loading and unloading students on and off school buses should not
be considered a part of the transportation process.” Id. at 52. In LeLeaux, however, “the manner
in which school district employees loaded and unloaded students had nothing to do with [the]
injuries.” Id.; see Finnigan v. Blanco Cty., 670 S.W.2d 313, 316 (Tex. App.—Austin 1984, no
pet.) (“The use or operation of a motor-driven vehicle such as an automobile involves the
transportation of a person from one place to another, and such transportation necessarily includes
the act of stopping the vehicle when one has reached one’s destination.”).
6
More closely aligned with this case, Willis stands for the proposition that taking the
affirmative action of stopping a bus in a manner which makes unloading the bus unsafe
constitutes the use or operation of a motor vehicle. Willis, 163 S.W.3d at 817. In that case,
Willis alleged that the driver was negligent in failing to properly stop the bus close to the curb,
causing her to fall and injure herself while attempting to exit the bus. Id. During her deposition
6
In Finnigan, a peace officer parked his patrol car near the jail’s exercise yard from which a prisoner escaped and
fled in the patrol car. During pursuit by officers, the escape vehicle was involved in a fatal collision with Finnigan.
Finnigan, 670 S.W.2d at 316. The court found that the officer’s act in parking the running vehicle so close to the
exercise yard waived liability under the TTCA even though the conditions that permitted the prisoner’s escape from
the exercise yard were also a cause of the accident. Id.
11
Willis stated that she noticed there was a “long step” down to the ground before she got off the
bus and that the bus was stationary the entire time she was exiting. Id.
The transit authority argued that those allegations did not implicate a “use” of the bus and
that the bus did nothing more than furnish the condition that made the injury possible. The
Dallas court disagreed and stated that the fact that the bus was stationary was not determinative
of whether it was being used or operated. Id. (citing Employers Mut. Cas. Co. v. St. Paul Ins.
Co., 154 S.W.3d 910, 915) (decision to stop truck in the left lane in fast-moving traffic resulted
in accident); Finnigan, 670 S.W.2d at 316. Ultimately, the court held that Willis’s claims “that
the bus driver took the affirmative action of parking the bus in a way that may have contributed
to her accident . . . serve[d] as the basis for her liability claim,” rendering her pleading “sufficient
to state a cause of action within the ‘motor-driven vehicle’ exception to governmental immunity”
under the TTCA. Id. (citing Gutierrez, 54 S.W.3d at 867) (holding that the cause of action fell
within exception to the TTCA where the “bus driver took the affirmative action of honking the
horn which may have contributed to the accident”).
Taking Garcia’s allegations as true, together with the undisputed evidence, we conclude
that the bus driver’s affirmative act of parking the bus in a manner such that the bus’s wheelchair
lift could not be used to safely load G.G. onto the school bus was a practical, purposeful action
that is encompassed within the definitions of “operation” and “use.” See Gonzalez, 532 S.W.3d
at 903; Willis, 163 S.W.3d at 817. Unlike LeLeaux, the bus in this case was not parked, empty,
and unused; instead, the bus was in the process of being loaded to transport students—as
evidenced by the fact that two students were already onboard at the time of the accident. And,
12
although Wheeler was not inside the bus at the time of the accident, the undisputed evidence
shows that his purpose in exiting the bus was to load G.G. onto the bus.7
That the wheelchair lift
was not used for this purpose as intended stemmed from Wheeler’s affirmative act of parking the
bus in such a manner that it could not be used. As in Willis, parking the bus in a way that may
have contributed to G.G.’s injuries was an affirmative act to establish a waiver of immunity. See
Willis, 163 S.W.3d at 817. Beyond that, the pleadings and the undisputed evidence show that the
bus was brought “into action or service” for the purpose of loading students. LeLeaux, 835
S.W.2d at 51. “There is no sound reason why” such action “should not be considered a part of
the transportation process.” Id. at 52.
We, likewise, conclude that the pleadings and undisputed evidence reveal a nexus
between G.G’s injuries and the operation or use of the bus. The Texas Supreme Court has
“consistently required a nexus between the operation or use of a motor-driven vehicle or
equipment and a plaintiff’s injuries.” Whitley, 104 S.W.3d at 543; see LeLeaux, 835 S.W.2d at
51 (“The phrase ‘arises from’ requires a nexus between the injury negligently caused by a
governmental employee and the operation or use of a motor-driven vehicle or piece of
equipment.”). This is because the “operation or use of a motor vehicle ‘does not cause injury if it
does no more than furnish the condition that makes the injury possible.’” Whitley, 104 S.W.3d at
543 (quoting Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343
(Tex. 1998)).
7
“The statute does not explicitly require that the operation or use be ‘active’ or that it be ongoing ‘at the time of the
incident.’” PHI, Inc. v. Tex. Juvenile Justice Dep’t, 593 S.W.3d 296, 305 (Tex. 2019). Instead, “Ryder correctly
suggests that whether a government vehicle was in ‘active’ operation ‘at the time of the incident’ is an important
consideration in determining whether an alleged injury arises from the operation or use of a vehicle.” Id. (citing
Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 928–29 (Tex. 2015) (per curiam).
13
The “threshold” for this requirement is “something more than actual cause but less than
proximate cause.” Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 928–29
(Tex. 2015) (per curiam) (citing Utica Nat’l Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198,
203 (Tex. 2004) (“[A]rise out of means . . . there is but[-]for causation, though not necessarily
direct or proximate causation.”)). “Accordingly, a plaintiff can satisfy the ‘arising from’
standard by demonstrating proximate cause.” Id. at 929.8
“The components of proximate cause are cause in fact and foreseeability.” Id. (citing W.
Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005)). “A tortious act is a cause in fact if [it]
serves as ‘a substantial factor in causing the injury and without which the injury would not have
occurred.’” Id. (quoting Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010)).
The pleadings allege that the District was negligent in “stopping the school bus in such a manner
and at a place that made it impossible to use the wheel chair [sic] lift with which the school bus
was equipped to lift G.G. onto the bus” and that “this act . . . , singularly or in combination with
others, constituted negligence which proximately caused the occurrence made the basis of this
suit and the injuries to the minor student.” Understood liberally, as they must be, these
allegations, along with the undisputed evidence, satisfy the cause-in-fact prong of proximate
cause—had the driver stopped the bus approximately one foot forward, the wheelchair lift could
have been used to place G.G. on the bus and the accident would not have happened.
8The court noted that “[t]his is particularly appropriate in the context of the TTCA, which only reaches injuries
‘proximately caused by the wrongful act or omission or the negligence of an employee.’” Ryder, 453 S.W.3d at 929
(quoting TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)).
14
The foreseeability prong of proximate cause requires that “the injury be of such a general
character as might reasonably have been anticipated; and that the injured party should be so
situated in relation to the wrongful act that the injury to him or to one similarly situated might
reasonably have been foreseen.” Id. (quoting Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,
551 (Tex. 1985) (quoting Carey v. Pure Distrib. Corp., 124 S.W.2d 847, 849 (Tex. 1939)). The
undisputed evidence showed that, due to Wheeler’s parking error or his failure to correct it, the
mechanical/hydraulic wheelchair lift could not be used. It is foreseeable in such a situation that
the failure to load onto a school bus a child in a wheelchair without a proper lift could result in
injury to the child. The attempt to load G.G. onto the bus by picking up his wheelchair and
attempting to carry it up the stairs of the bus, according to the undisputed evidence, resulted in
the child’s injuries. We, therefore, conclude that the pleadings and the undisputed evidence
reveal the requisite nexus between the use and operation of the bus and G.G.’s injuries. See
Ryder, 453 S.W.3d 928–29; Gonzalez, 532 S.W.3d at 903–04.
For the foregoing reasons, we conclude that Garcia’s allegations and the undisputed
evidence indicate that G.G.’s injuries arose from the use or operation of the bus for purposes of
Section 101.021 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.021. Therefore, the trial court did not err in denying the plea to the
jurisdiction.
Outcome: We affirm the trial court’s judgment.
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