Duross v. Freeman

831 S.W.2d 354, 1992 Tex. App. LEXIS 1606, 1992 WL 137830

• Court: Court of Appeals of Texas
• Decided: April 15, 1992
• Docket: 04-91-00333-CV
• Status: Published

Opinions

OPINION

BIERY, Justice.

In January, 1991, Leslie M. Miller, was a student at the Earl Rudder Middle School in the Northside Independent School District, located in Bexar County, Texas. During her science class supervised by appellee Jack Freeman, Miss Miller participated in an experiment using potassium hydroxide (POH), a dangerously caustic chemical compound. Dry crystals of POH came into contact with Leslie’s thigh. Because the chemical was in crystalline form, it did not burn her until it interacted with the moisture of her skin. POH is an alkaline substance; therefore, the effects of the burn were not felt until the injury had progressed. Later in the day, Leslie went to appel-lee Ruth Horn, the school nurse. Allegedly, there was not time to treat Leslie. When Leslie reached home, the injury was severe. Immediately upon reaching home, Leslie went to receive medical treatment; however, she contends the initial injury and the delay in treatment caused severe, permanent, disabling and disfiguring injury which will require reconstructive surgery in the future.

Leslie, through her parents Lawrence and Karen Duross, sued Jack Freeman and Ruth Horne for negligence in supervising the handling of the dangerous chemical and for delay in treating the injury. Appellants Freeman and Horne moved for summary judgment. All parties stipulated, for purposes of the summary judgment motion, that no issues of material fact exist. The parties further stipulated the only question presented by the defendants’ motion for summary judgment is the legal interpretation of § 21.912(b) of the Texas Education Code.¹

The trial court granted the defendants’ motion for summary judgment based upon the Texas Supreme Court’s analysis and interpretation of § 21.912(b) in Barr v. Bernhard, 562 S.W.2d 844 (Tex.1978). In Barr, the supreme court reversed this court’s unanimous decision in Bernhard v. Kerrville Indep. School Dist., 547 S.W.2d 685 (Tex.Civ.App.—San Antonio 1977). Further, the supreme court in Barr held that “a professional school employee is not personally liable for acts done within the scope of employment, and which involve the exercise of judgment or discretion, except in circumstances where disciplining a student, the employee uses excessive force or his negligence results in bodily injury to the student.” Barr, 562 S.W.2d at 849. (emphasis added). Nine years after Barr, the supreme court reexamined and reaffirmed its interpretation of § 21.-912 of the Texas Education Code in Hopkins v. Spring Indep. School Dist., 736 S.W.2d 617 (Tex.1987). As the court noted in Hopkins, the legislature had eight years between Barr and Hopkins to disagree with the supreme court’s interpretation of § 21.912 and did not do so. Id. at 618.

Leslie and her parents forthrightly ask this court to reaffirm our position in Bernhard v. Kerrville Ind. School Dist. and, in effect, disregard the Texas Supreme Court’s decisions in Barr v. Bernhard and Hopkins v. Spring Indep. School Dist. While we sympathize with Leslie’s plight and recognize that Barr and Hopkins were not unanimous decisions, we are, as an intermediate appellate court, bound to follow the majority holdings in Barr and Hopkins.

Accordingly, the judgment of the trial court is affirmed.

1 . “No professional employee of any school district within this state shall be personally liable for any act incident to or within the scope of the duties of his position of employment, and which act involves the exercise of judgment or discretion on the part of the employee, except in circumstances where professional employees use excessive force in. the discipline of students or negligence resulting in bodily injury to students.” Tex.Educ.Code Ann. § 21.912(b) (Vernon 1987).