IN THE

TENTH COURT OF APPEALS

No. 10-18-00027-CV

BRAZOS TRANSIT DISTRICT,

Appellant

v.

TWILA PHILLIPS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 16-002093-CV-272

MEMORANDUM OPINION

Appellee Twila Phillips was injured when a bus operated by Appellant Brazos 

Transit District ran over her legs. Phillips filed suit against the District under the Tort 

Claims Act. The District filed a combined plea to the jurisdiction, no-evidence summary 

judgment motion, and traditional summary judgment motion raising the issue of 

sovereign immunity. The trial court partially granted the District’s motion and dismissed 

all of Phillips’ claims except one—whether the bus driver, a District employee, was 
Brazos Transit v. Phillips Page 2

negligent in failing to keep a proper lookout. The District appeals the trial court’s order 

asserting that its motion should have been granted in its entirety. We will affirm.

Background

The undisputed evidence in the record reflects that Phillips was a passenger on a

bus operated by the District on November 5, 2014. It was a rainy day, and the streets 

were wet. Phillips exited the bus, but then remembered that she had left her umbrella on 

the bus. Phillips turned and began knocking on the bus door to get the driver’s attention. 

The bus, however, pulled away. While Phillips continued to bang on the side of the bus, 

she fell and the right rear wheel of the bus rolled over both of her legs. Phillips was 

transported to the hospital for treatment.

Standard of Review

A. Immunity. Governmental units are immune from suit unless the state consents. 

Alamo Heights Ind. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). In the Tort Claims 

Act, the Legislature has expressly waived the state’s immunity in limited circumstances, 

including when an injury is caused by the negligent operation or use of a public-owned, 

motor-driven vehicle by a government employee acting within the scope of his 

employment. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1) (West 2011); see also City 

of Balch Springs v. Austin, 315 S.W.3d 219, 224 (Tex. App.—Dallas 2010, no pet.). In such 

a circumstance, the governmental entity is liable if an individual’s injuries are the result 

of the negligence of an employee acting within the scope of his employment and the 

employee would be personally liable for that injury under Texas law. TEX. CIV. PRAC. &

REM. CODE ANN. § 101.021(1).
Brazos Transit v. Phillips Page 3

It is undisputed that the District is a governmental entity. The issue in this case is 

whether the bus driver, Michael Raymond Willey, violated a duty of care owed to Phillips 

thereby proximately causing her injuries. The parties conducted discovery, including 

deposing both Phillips and Willey. The District included Phillips’ deposition as an 

attachment to its Plea to the Jurisdiction, or Alternatively, Motion for Summary 

Judgment. Phillips included her own deposition and Willey’s deposition as attachments 

to her response to the District’s motion. Immunity from suit may be raised through a 

plea to the jurisdiction or other procedural vehicle, such as a motion for summary 

judgment. Alamo Heights, 544 S.W.3d at 770. As noted, the District asserted immunity 

through a combined plea to the jurisdiction and motion for summary judgment.

B. Plea to the Jurisdiction. Sovereign immunity from suit implicates a trial court’s 

subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. See 

Engelman Irrigation District v. Shields Brothers, Inc., 514 S.W.3d 746, 751 (Tex. 2017). 

Whether a court has subject matter jurisdiction is a question of law, and we review a trial 

court’s ruling on a plea to the jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 

133 S.W.3d 217, 226 (Tex. 2004). When a plea to the jurisdiction challenges the existence 

of jurisdictional facts, the trial court considers any relevant evidence submitted by the 

parties when necessary to resolve the jurisdictional issues raised. Id. at 227; see also Tex.

Southern Univ. v. Mouton, 541 S.W.3d 908, 912-13 (Tex. App.—Houston [14th Dist.] 2018, 

no pet.). If the evidence creates a fact question regarding jurisdiction, then the trial court 

must deny the plea, and the fact issue will be resolved by the factfinder. Miranda, 133 
Brazos Transit v. Phillips Page 4

S.W.3d at 227-28. In such cases, the summary judgment standard found in Rule 166a(c) 

of the Rules of Civil Procedure is applicable. See Sampson v. Univ. of Tex. at Austin, 500 

S.W.3d 380, 384 (Tex. 2016) (“[I]f the plaintiffs’ factual allegations are challenged with 

supporting evidence necessary to consideration of the plea to the jurisdiction, to avoid 

dismissal plaintiffs must raise at least a genuine issue of material fact to overcome the 

challenge to the trial court’s subject matter jurisdiction.”).

C. No-Evidence Summary Judgment. We review de novo a trial court’s ruling on 

a summary judgment motion. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 

S.W.3d 844, 848 (Tex. 2009). When a party moves for both traditional and no-evidence 

summary judgment on the same ground, we first review the trial court’s ruling under the 

no-evidence standard of review. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 

2004).

A no-evidence motion for summary judgment is essentially a motion for pretrial 

directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006); see 

also Humphrey v. Pelican Isle Owners Ass'n, 238 S.W.3d 811, 813 (Tex. App.—Waco 2007, 

no pet.). Once such a motion is filed, the burden shifts to the nonmoving party to present 

evidence raising an issue of material fact as to the elements specified in the 

motion. Tamez, 206 S.W.3d at 583. The nonmovant must produce “summary judgment 

evidence raising a genuine issue of material fact.” TEX. R. CIV. P. 166a(i). When 

determining if more than a scintilla of evidence has been produced, the evidence must be 

viewed in the light most favorable to the nonmovant. Ford Motor Co., 135 S.W.3d at 601.
Brazos Transit v. Phillips Page 5

The party moving for summary judgment bears the burden of proof. Roskey

v. Tex. Health Facilities Comm'n, 639 S.W.2d 302, 303 (Tex. 1982). Though 

these burdens vary for traditional and no-evidence motions, the summary 

judgment motion here was a hybrid motion and, as noted, both parties 

brought forth summary judgment evidence; therefore, the differing 

burdens are immaterial and the ultimate issue is whether a fact issue 

exists. Buck v. Palmer, 381 S.W.3d 525, 527 & n. 2 (Tex. 2012). A fact issue 

exists if there is more than a scintilla of probative evidence. See id. at 

527; TEX. R. CIV. P. 166a(c), (i).

 

Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013).

D. Traditional Summary Judgment. In reviewing a traditional summary 

judgment, we must consider whether reasonable and fair-minded jurors could differ in 

their conclusions in light of all of the evidence presented. See Goodyear Tire & Rubber Co. 

v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). The movant carries the burden of establishing 

that no material fact issue exists and that it is entitled to judgment as a matter of law. TEX.

R. CIV. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 

2000). The nonmovant has no burden to respond to a summary-judgment motion unless 

the movant conclusively establishes its cause of action or defense. M.D. Anderson Hosp. 

& Tumor Inst., 28 S.W.3d at 23. Once the movant produces sufficient evidence 

conclusively establishing its right to summary judgment, the burden shifts to the 

nonmovant to present evidence sufficient to raise a fact issue. Centeq Realty, Inc. v. Siegler, 

899 S.W.2d 195, 197 (Tex. 1995). In reviewing a traditional summary judgment, we must 

consider all the evidence in the light most favorable to the nonmovant, indulging every 
Brazos Transit v. Phillips Page 6

reasonable inference in favor of the nonmovant and resolving any doubts against the 

motion. See Goodyear Tire & Rubber Co., 236 S.W.3d at 756.

Negligence Cause of Action

In order to establish a negligence cause of action, a plaintiff must establish “a duty, 

a breach of that duty, and damages proximately caused by the breach.” Kroger Co. v. 

Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam); see also Western Invs., Inc. v. Urena, 

162 S.W.3d 547, 550 (Tex. 2005). In four issues, the District asserts that Phillips has failed 

to establish the breach of any duty of care owed to Phillips and that the breach of any 

duty, if one exists, proximately caused her injuries.

“A driver has a general duty to exercise the ordinary care a reasonably prudent 

person would exercise under the same circumstances to avoid a foreseeable risk of harm 

to others.” Ciguero v. Lara, 455 S.W.3d 744, 748 (Tex. App.—El Paso 2015, no pet.). 

Additionally, drivers have a general duty to keep a proper lookout. Id.; Montes v. 

Pendergrass, 61 S.W.3d 505, 509 (Tex. App.—San Antonio 2001, no pet.).

“[A] proper lookout encompasses the duty to observe, in a careful and 

intelligent manner, traffic and the general situation in the vicinity, 

including speed and proximity of other vehicles as well as rules of the road 

and common experience.” Carney v. Roberts Inv. Co., 837 S.W.2d 206, 211 

(Tex. App.—Tyler 1992, writ denied); see also Gomez [v. Adame], 940 S.W.2d 

[249] at 251 [Tex. App.—San Antonio 1997, no writ)]; Lopez [v. City Towing 

Assocs., Inc.], 754 S.W.2d [254] at 263 [Tex. App.—San Antonio 1988, writ 

denied)]. Proper lookout requires the motorist “to see what a person in the 

exercise of ordinary care and caution for the safety of herself and others

would have seen under like circumstances” and to take “such steps to 

guard against accidents which the conditions observed by her would 

necessarily indicate to be necessary.” Lopez, 754 S.W.2d at 263. “Although 

not required to anticipate negligent or unlawful conduct on the part of 

others, [a motorist] is not entitled to close her eyes to that which [is] plainly 

visible and which would have been observed by a person of ordinary 
Brazos Transit v. Phillips Page 7

prudence similarly situated.” Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 

273] at 275 [(Tex. 1958)].

Montes, 61 S.W.3d at 509.

Whether viewed in the light of a plea to the jurisdiction, a traditional motion for 

summary judgment, or a no-evidence motion for summary judgment, Phillips has 

presented more than a scintilla of evidence that Willey failed to keep a proper lookout. 

See Ford Motor Co., 135 S.W.3d at 600 (more than a scintilla exists when evidence “rises to 

a level that would enable reasonable and fair-minded people to differ in their 

conclusions.”). Phillips testified that Willey looked at her as she was knocking on the 

side of the bus and that he drove off. She also testified at one point that the bus knocked 

her down when it drove away. This is directly contrary to the deposition testimony of 

Willey who denied seeing Phillips after she left the bus. Taking Phillips’ testimony and 

all inferences as true, there is a factual dispute over whether Willey failed to keep a proper 

lookout.

The next issue is whether Willey’s actions were a proximate cause of Phillips’ 

injuries. The components of proximate cause are cause-in-fact and foreseeability. 

Williams v. Parker, 472 S.W.3d 467, 470 (Tex. App.—Waco 2015, no pet.). “The failure to 

keep a proper lookout can be a proximate cause of an accident where the motorist should 

have seen something in time to have avoided the accident by evasive action and but for 

such failure the collision could have been avoided.” Ciguero, 455 S.W.3d at 748 (quoting 

Montes, 61 S.W.3d at 510). Whether viewed under the standard of a plea to the 

jurisdiction, a no-evidence motion for summary judgment, or a traditional motion for 
Brazos Transit v. Phillips Page 8

summary judgment, Phillips’ testimony and the inferences to be drawn from it constitute 

more than a scintilla of evidence that if Willey failed to keep a proper lookout, it was a 

proximate cause of Phillips’ injuries. The trial court did not err, therefore, in denying the 

District’s motion as there are fact issues presented that preclude finding the District 

immune from liability as a matter of law.

Having determined that all of the District’s issues are without merit, we affirm the 

trial court’s order denying the District’s combined plea to the jurisdiction, no-evidence 

summary judgment motion, and traditional summary judgment motion. We remand the 

case for further proceedings not inconsistent with this opinion.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and 

Justice Scoggins

(Chief Justice Gray concurs in the judgment of the Court to the extent it affirms 

the trial court’s order. A separate opinion will not issue.)

Affirmed and remanded

Opinion delivered and filed December 5, 2018

[CV06]