### IN THE TENTH COURT OF APPEALS
No. 10
- 18
- 00027
- CV
BRAZOS TRANSIT DISTR ICT , 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 mot ion, 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, wasBrazos Transit v. Phillips Page 2

negligent in fa iling 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 circum stances, 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. S ee T EX

. C IV
. P RAC

. & R EM
. C ODE A NN
. § 101.021(1) (West 2011); see al so 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. T EX

. C IV
. P RAC

. &
R EM
. C ODE A NN . § 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, Mich ael 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 t o the Jurisdiction, or Alternatively, Motion for Summary Judgment. Phillips included her own deposition and Willey’s deposition as attachments
to her re s ponse to the District’s motion . Immunity from suit may be raised through a plea to the jurisdiction o r 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 h a s s ubject 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 existe nce 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 , 133Brazos 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
suppor ting 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 Sum mary 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 th e same ground , we first review the trial court’s ruling under the

no - evidence standard of review. See Ford Motor Co. v. Ridgway , 13 5 S.W.3d 598, 600 (Tex. 2004).
A no

- evidence motion for summary judgment is essentially a motion for pretrial
directed verd ict. 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.” T EX

. R. C IV

. P. 166a(i). When determining i f 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; T EX

. R. C IV

. 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. T EX

. R. C IV

. 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, I nc. 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 everyBrazos 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 C o. 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 ordi nary 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 sp eed 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, n o 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 other s would have seen under lik e circumstances” and to take “such steps to guard against accident s 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 ordinaryBrazos Transit v. Phillips Page 7

pru dence 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 f air

- 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 afte r 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 is sue 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 l ookout 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 forBrazos 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 issue s presented th at preclude finding the D istrict
immune fro m 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 t raditional 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 r emanded Opini on delivered and filed December 5, 2018 [CV06]