### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00122- CV

Donnea Simon, as Next

F riend of

M. S., Appellan t

v. Blan co Independ ent School District, A ppellee

F ROM TH E DISTRI CT COURT O F B LANCO CO UNTY, 424 TH JUDICI AL DISTRICT NO. CV0686 8, H ONO RAB LE DANIEL H . M ILLS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N
The issue in this case is whether a school district’s g over n m en t al immunit y for a neg lige nce cause of action is waived under the Texas Tort Claims Act when the plaintiff is assaulted 1

on a school bus by

fellow students. We hold that g overnme ntal immunit y is not waived under the circ umstances he re a

nd aff irm the judg ment of the district cour t. M.S. was assaulted by fellow students while a passeng er on a school bus opera ted by appellee Bla

nco I ndepende nt School District. M.S., by next friend, filed suit ag ainst the District alleg ing neg lige nce by the bus driver, a District empl o y ee , based on the driver’ s failure s to stop the assault and seek immediate medical attention for M.S. The District filed a plea to the jurisdiction

asser ting g overnme ntal immunit y . The district court g rante d the District’s plea and di s m i s s ed appellant’ s suit with prejudice

. Appellant challeng es the g rant of the District’s plea to the jurisdiction.

Tex. Ci v. Prac. & Rem. Code Ann. §§ 101.001-.109 (West 2005 & Supp. 2010). 1A plea to the jurisdiction challeng es the trial court’s authority to deter mine the subject matter of a specific cause of action. See Bland Indep. Sch. Dist. v. Blue , 34 S.W .3d 547, 553- 54 (Tex. 2000). Whether a court has subject-matter jurisdiction and whether a plaintiff has alleg ed fac ts that affi rm at i v ely demonstrate subject-matter jurisdiction are questions of law that we revie w de novo. Texas De p’t of Parks & W

ildlif e v. M iranda , 133 S.W .3d 217, 226 (Tex. 2004). I n deci d i n g a p lea to the jurisdiction that challeng es the pleading s, we deter mine if the pleade r has allege d fac ts that aff

irmativ ely demonstrate the court’s jurisdiction to hear the cause. Id. We construe the pleading s liberally in favor of

the plaintiff and look to the plea der’ s intent. Id. Absent an express statutory waiver , g overnme ntal immunit y protec t s political subdivisions of the State from suit

. S ee Fede ral Sign v. Texas S. Univ. , 951 S.W .2d 401, 405 (Tex. 1997). As a public school district, appellee is a “g overnme ntal unit” under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)( B) (West 2005). As a result, the District’s neg lige nce liability is lim ited by

the Act to:

proper ty damag e, persona l injury , and death proxi mately cause d by the wrong ful act or omission or the neg lige nce of an employ ee acting within his scope of employ ment if: (A) the proper

ty damag e, persona l injury , or death arises from the opera tion or use of a motor-driven ve hicle . . . and (B ) the employ ee would be persona lly liable to the claimant acc ording to T exas law . . . .

Id. § 101.021(1) ( West 2005).

2Appellant alleg es that M.S.’s injury “ar ises from t h e o p er ation or use of a motordriven vehicle” based on alleg ations that the bus driver (1) allowed students to stand in the bus while he was driving , (2) failed to stop the bus or turn on the inside light or exterior flasher s while t h e assault was occur

ring , and (3) continued on to the destination rathe r than seeking immediate medical

car e and tr eatment f

or appe llant. The phrase “arises from” in section 101.021(1)(A) of the Tort Claims Act requires

a nexus betwee n the injury and the opera tion or use of the motor vehicle. LeLeaux v. HamshireFannett Indep. Sch. Dist. , 835 S.W .2d 49, 51 (Tex. 1992)

. When a n injury occur s on a school bus and “the bus is only the setting for the injury ,” immunit y for liability is not waived. Id. at 52. Thus, when the alleg ations of neg lige nce ar e re lated to “the direc tion, control, and supervision of the students” on the bus, rathe r than neg lige nt use of the bus itself, the suit i s b ar re d

. Goston

v. Hutchison , 853 S.W .2d 729, 733 (Tex. App.—Houston [1st Dist.] 1993, no writ); see Elgin Indep. Sch. Dist. v. R.N. , 191 S.W .3d 263, 272 (Tex. App.—Austin 2006, no pet.) (“[I ]nj uries arising from supervision of bus passe ng ers do not ar ise from the ope ration or use of a ve hicle.”)

.

Eac h of appellant’ s alleg atio n s rela tes to supervision responsibilities that are independe nt of t he operation or use o f the bus

. Appellant’s alleg ation that the bus driver allowed students to stand in the bus rela tes to control of the behavior of passenge rs , n o t the opera tion or
use of the bus itself. See Estate of Garza v. McAllen Indep. Sch. Dist. , 613 S.W

. 2 d 5 26, 527-28 (T ex . Civ. App.—B eaumont 1981, writ ref ’d n.r.e.) (holding that when school bus passenge r stabbed student on bus, school d i s trict not liable beca use injury arose out of failure to supervise,
not opera tion or use of bus). L ikewise, appellant’ s alleg ations t h at , once the assault started, the

3bus driver should have illumi nated the interior lights, stopped the bus, or turned on the flasher s also

rela te to supervision and control of the bus passeng ers. See Montoya v. Houston Indep. Sch. Dist. , 177 S.W .3d 332, 337 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (explaining that failure to stop bus to avoid collision rela tes t o o p er at i o n of vehicle, but failure to stop bus to reg ulate passeng er behavior does n ot). Moreove r, the driver’ s failure to take such actions did not actua lly cause appellant’ s injuries but, at most, mere ly furnished the condition tha t ma de the injury possible. See Dallas Area Rapid Transit v. W hitley , 104 S.W .3d 540, 543 (Tex. 2003). Finally , the alleg ed failure
to stop the bus to provid e medical car e also rela tes to supervision of the bus passeng ers rathe r than the t ra n s portation function. See Hopkins v. Spring Indep. Sch. Dist. , 736 S.W .2d 617, 619 (Tex. 1987) (holding that alleg ation of failure to provide adequate medical car e to bus passeng er did not evidence nexus between injury and oper ation or use of

school bus). Appellant relies on Austin Indepe ndent School District v. Gutierrez , 54 S.W .3d 860 (Tex. App.—Austin 2001, pet. denied) , and Hitch c o c k v . G a r v in , 738 S.W .2d 34 (Tex. App.—Dallas 1987, no writ ), fo r t h e p roposition that injuries direc tly cause d by third parties have a sufficie nt

nexus to the opera tion of a school bus as lon g as the bus driver’ s action or inaction in opera ting the bus “play ed some role” in causing the inj u ri es . I n Gutierrez , a child disembarke d from the school bus, the bus driver honked to signa l the child that it was safe to cross t h e street, and a motor vehicle driven by a third party struck the child. See 54 S.W .3d at 861. I n Hitchcoc k , a child disembarke d from the school bus, the bus driver failed to a ctivate the require d war ning lights, and

a motor vehicle driven by a third party struck the child. See 738 S.W .2d at 35-36. I n both case s, the court concluded that the s chool di strict’s pl ea to the jur isdiction should be denied. See Gutierrez ,

454 S.W .3d at 866-67; Hi t ch co ck , 738 S.W .2d at 37-38. I n both case s, howeve r, t he inj uries were

rela ted to the proce ss of transporting of children o n t h e b u s fr om one location to another

. See LeLeaux , 835 S.W .2d at 52 (obser ving that loading and unloading students on and off of school bus is part of “ transporta tion process” ). I n contra st, this i s not a case a lleg ing ne g lige nce in the use of the school bus itself; rathe r, appellant’ s alleg ations focus on the supervision of the children’ s activities on the bus

. I n other words, as i n LeLeaux , the s chool bus was merely the s etting for the injury

. See id. As such, there is no nexus betwee n appellant’ s injury and the District’s opera tion

or use of a motor vehicle. Appellant failed to establish a waiver of go v ernmental immunit y , and there fore , the district court did not err in g ranting the District’s plea to the jurisdiction. We aff irm 2 the judg ment of the district cour t.

__________________________________________

J eff Rose, J ustice Be fore J ustices Henson, Rose a nd Goodwin Affir med Filed: January

28, 2011

I f the pleading s do not af fi rmatively demonstrate incura ble defe cts in jurisdiction, the 2 plaintiff may be aff

orded the opportunity to amend his pleading s. Texas Dep’ t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 226-27 (Tex. 2004). Howeve r, the district court i n t h i s ca s e h ad alre ady provided appellant a rea sonable opportunity to do so. Therefore , dismiss al of appellant’ s suit with prejudice wa s proper . See H arris Count

y v. Sy kes , 136 S.W .3d 635, 639 (Tex. 2004). 5