Gibson v. Garland Independent School District

378 S.W.3d 613, 2012 WL 3704933, 2012 Tex. App. LEXIS 7210
CourtCourt of Appeals of Texas
DecidedAugust 27, 2012
DocketNo. 05-11-00731-CV
StatusPublished
Cited by1 cases

This text of 378 S.W.3d 613 (Gibson v. Garland Independent School District) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gibson v. Garland Independent School District, 378 S.W.3d 613, 2012 WL 3704933, 2012 Tex. App. LEXIS 7210 (Tex. Ct. App. 2012).

Opinions

OPINION

Opinion By Justice LANG-MIERS.

This is an appeal from the trial court’s order granting appellee Garland Independent School District’s plea to the jurisdiction and dismissing the claims filed by appellant Constance Gibson, individually and as next friend of her minor son, M., for want of jurisdiction. Gibson sued GISD for injuries M. allegedly sustained as he was exiting the rear door of a school bus during an emergency exit drill. We affirm the trial court’s order.

Factual and Procedural Background

On the morning of October 18, 2006,1 the driver of a GISD school bus stopped in a [615]*615shopping center parking lot to conduct an emergency exit drill. The driver turned off the bus engine and instructed the children that she was conducting an emergency exit drill and that they would be required to exit the bus through the rear door. Gibson alleged that the bus driver had never instructed M., a student at Row-lett High School, about how to exit through the rear door and that M. did not know how. Gibson alleged that the bus driver was outside the bus near the emergency exit. M. watched as other children exited and, when it was his turn, he exited the bus as the others had done. He sat down on the floor of the bus at the rear door and jumped to the ground. When he did so, he landed hard on the parking lot and felt pain in his left leg. Gibson alleged that M. broke his ankle.

Gibson sued GISD alleging negligence and gross negligence. In her original petition, Gibson alleged that GISD negligently used an emergency exit for drills or practice, negligently used the school bus for conducting emergency exit drills or practice, negligently trained personnel relating to the use of the school bus, and negligently conducted an emergency exit drill or practice.2

GISD filed a plea to the jurisdiction in which it asserted that Gibson had not alleged an operation or use of the school bus for which the bus driver would be personally liable. GISD argued that the bus was stopped and the engine was off and, as a result, the bus was not being operated or used at the time of M.’s alleged injury. It argued that the school bus provided no more than the setting where M. was allegedly injured. GISD also argued that the gist of Gibson’s claims “appears to be that the emergency exiting drill was conducted on a school bus,” and it argued that the National Highway Traffic Safety Administration recommends that school districts conduct emergency exit drills at least once per semester.

After GISD filed its plea to the jurisdiction, Gibson amended her petition. She alleged that

• the bus driver failed “to use reasonable care to assist [M.] while he was attempting to exit”;
• the bus driver “failed to do as a reasonable bus driver would do in the same or similar circumstances in assisting [M.] in exiting from the rear emergency exit door”;
• “there were no assistants standing at the emergency exit to help [M.] exit from the bus ... ”;
• M. “exited off the back of the bus without assistance” and “landed and fell to the ground and felt immediate pain in his leg and knee”;
• the bus driver required M. “to exit the school bus through the rear emergency exit of the school bus ... without the exiting assistance and supervision mandated by [GISD] for the purpose of ensuring the safe use of the rear emergency exit of the school bus by the students who were compelled to participate in the emergency exit or evacuation practice or drill ...”;
• the bus driver stopped the bus on a hard asphalt or concrete parking lot and required the students to exit from the rear door of the bus;
[616]*616• the drop off from the floor of the bus at the emergency exit to the ground was several feet down;
• the intentional and mandated operation and use of the school bus on the asphalt or concrete surface for emergency evacuation practice actually caused the injury to M.; and
• the bus driver was negligent by situating the school bus on a hard asphalt or concrete surface and using the bus for mandatory and non-voluntary participation of students to practice emergency exiting or evacuating from the rear emergency exit of the bus without adequate safety precautions.

Simultaneously with filing the first amended petition, Gibson filed her response to GISD’s plea to the jurisdiction. Gibson’s response included allegations similar to those in her amended petition: the bus driver stopped the bus in a parking lot for the purpose of performing an emergency exit drill, the bus driver required the students to exit the bus through the rear door, there were no assistants at the rear door to assist M. in exiting, the drop off from the floor of the bus to the ground was several feet down, the parking lot was asphalt or concrete, and M. sustained a broken ankle as a result of the use and misuse of the bus for the emergency exit drill.

GISD responded to Gibson’s new allegations by stating that her “factual contentions have not changed ... and that Plaintiff still contends that [M.] was injured while the District’s bus was stopped and while the bus driver conducted an emergency evacuation drill.” GISD argued that none of Gibson’s allegations stated a claim within GISD’s waiver of immunity.

The trial court granted GISD’s plea to the jurisdiction and dismissed the plaintiffs claims for want of subject matter jurisdiction. The court stated that in making its ruling it considered GISD’s plea to the jurisdiction, Gibson’s response, and GISD’s reply. It did not state the basis for its ruling.

In three issues on appeal, Gibson argues that the trial court erred by granting GISD’s plea to the jurisdiction because (1) GISD did not have immunity from suit, (2) GISD’s employee was negligent in the operation or use of the bus, and (3) GISD’s employee would be personally liable to plaintiff according to Texas law. GISD argues in response that none of the purported acts of the bus driver involves the bus driver’s use or operation of the bus. It argues that the crux of Gibson’s claims is that the bus driver negligently supervised the students while they exited the bus during the emergency exit drill and that its immunity is not waived for negligent supervision claims.

Governmental Immunity

Governmental immunity deprives a trial court of subject matter jurisdiction unless the state consents to suit. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004); Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003). It is undisputed that GISD is immune from suit in this case unless the Texas Tort Claims Act expressly waives immunity. Section 101.021 of the Tort Claims Act states:

A governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

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Bluebook (online)
378 S.W.3d 613, 2012 WL 3704933, 2012 Tex. App. LEXIS 7210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibson-v-garland-independent-school-district-texapp-2012.