Vidor Independent School District v. Levi Bentsen, by and Through Next Friend, Glynda Bentsen and Glynda Bentsen, Individually

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-04-401 CV ____________________ VIDOR INDEPENDENT SCHOOL DISTRICT, Appellant V. LEVI BENTSEN, by and through his next friend, GLYNDA BENTSEN and GLYNDA BENTSEN, individually, Appellees On Appeal from the 260th District Court Orange County, Texas Trial Cause No. D030936-C MEMORANDUM OPINION Vidor Independent School District ("Vidor") brings this interlocutory appeal from the trial court's denial of Vidor's plea to the jurisdiction, which was based on sovereign immunity. The underlying suit was brought by Levi Bentsen and Glynda Bentsen, his mother, against Vidor and Wilt Alexander, III, an employee of Vidor, for personal injuries sustained by Levi. (1) Levi was injured when Alexander used a rope attached to his personal truck to move a concrete picnic table. Levi became entangled in the rope while it was attached to the truck and dragged by it. The Bentsens sued Vidor and Alexander alleging Levi's injuries were caused by the operation or use of a motor-driven vehicle. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A) (Vernon 1997). The trial court severed the cause against Alexander and pursuant to settlement dismissed all claims against him. Subsequently, Vidor filed an amended plea to the jurisdiction noting the dismissal of Alexander from the suit. In its amended plea, Vidor contended immunity has not been waived because Alexander is no longer liable to the Bentsens, and because the Bentsens failed to plead facts establishing a waiver, including any facts establishing proximate cause. The trial court denied Vidor's plea. From that order, Vidor appeals raising two issues. Sovereign immunity encompasses two distinct legal principles: immunity from suit and immunity from liability. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam). Immunity from liability does not affect a court's jurisdiction to hear a case, but rather is an affirmative defense and must be pleaded to prevent waiver. Id. Immunity from suit defeats a trial court's subject-matter jurisdiction over a lawsuit and is properly asserted in a plea to the jurisdiction. Id. Because the question of subject-matter jurisdiction is a question of law, we review de novo a trial court's order denying a jurisdictional plea based on sovereign immunity. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Where, as here, there was no evidence presented to the trial court on the jurisdictional issue, we look solely to the pleadings to determine whether the trial court's jurisdiction was properly invoked. See Archibeque v. North Tex. State Hosp.-Wichita Falls Campus, 115 S.W.3d 154, 157 (Tex. App.--Fort Worth 2003, no pet.). Vidor's first issue maintains the trial court erred in denying its plea because there is no waiver of immunity from liability under Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(B) (Vernon 1997). A governmental unit is liable for personal injury caused by the wrongful act or omission or negligence of an employee if "the employee would be personally liable to the claimant according to Texas law." Id. Vidor reasons that because of the settlement and release, Alexander could not be personally liable to the Bentsens and therefore immunity has not been waived. Vidor recognizes that in Driskill v. State, 787 S.W.2d 369, 371 (Tex. 1990), the Supreme Court of Texas held "a claimant's release of a state employee does not have the effect of releasing the State from liability." Vidor, however, claims the later case of DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995), supports its position. Vidor also relies upon K.D.F. v. Rex, 878 S.W.2d 589, 597 (Tex. 1994), and City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex. 1993). All three of these cases recognized that if the employee is entitled to official immunity, then the governmental unit's sovereign immunity remains intact. DeWitt, 904 S.W.2d at 654; K.D.F., 878 S.W.2d at 597; and Kilburn, 849 S.W.2d at 812. As DeWitt explained, "official immunity, like any other affirmative defense the employee may have, becomes relevant to the governmental entity's liability." DeWitt, 904 S.W.2d at 654. The Court noted that a governmental entity, "were it a private person, . . . would be entitled to assert any affirmative defenses its employee has to liability." Id. Relying on DeWitt, Vidor contends "the employer is entitled to assert any defense available to the employee." In this case, it is the affirmative defense of release that Vidor seeks to assert. However, Vidor's argument ignores Knutson v. Morton Foods, Inc., 603 S.W.2d 805, 806 (Tex. 1980), wherein the Texas Supreme Court held "the unity of release rule does not apply to a settlement by an employee or agent to release his principal." See also McMillen v. Klingensmith, 467 S.W.2d 193 (Tex. 1971). The Driskill court cited Knutson as support for recognizing that "[a]s a general rule, the settlement with and release of an employee does not bar a subsequent action against the employer under the doctrine of respondeat superior for any damages that have not been fully satisfied." (2) Driskill. 787 S.W.2d at 370 (citing Knutson, 603 S.W.2d at 807). Nothing in DeWitt suggests the Court intended that a governmental entity is entitled to assert affirmative defenses that, if it were a private entity, the private entity would not be entitled to raise. DeWitt allows governmental units to raise the same affirmative defenses private employers may raise. It did not overrule Driskill and permit governmental units to raise an affirmative defense that is not available to private employers. Further, the statutory language of section 101.021(1)(B) clearly states the issue as whether the employee would be liable. Official immunity protects individual employees from liability. See DeWitt, 904 S.W.2d at 653. Therefore, as DeWitt recognized and in accordance with the statue, an employee who has official immunity would not be liable; i.e., liability never arose. The statute does not provide, as Vidor seeks to interpret it, that a governmental unit is not liable if the employee would have been, but no longer is, liable. We overrule issue one. In issue two, Vidor asserts the Bentsens failed to plead facts establishing a waiver of sovereign immunity. The Bentsens allege Levi was injured when Alexander dragged him by a rope attached to a motor-driven vehicle. Vidor claims Levi was injured when his feet became entangled in the rope and he fell, thereby allowing him to be dragged several feet. Thus, Vidor contends, Levi's injuries were caused by the rope, not the vehicle. To establish a waiver of immunity from suit under section 101.021(1), a plaintiff need only allege that a motor-driven vehicle was used or operated, and that there was a nexus between the injury and the operation or use of the motor-driven vehicle by a government employee. See LeLeaux v. Hamshire-Fannett Ind. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992). The Texas Supreme Court in LeLeaux held that "'use' means 'to put or bring into action or service; to employ for or apply to a given purpose' and '[o]peration' refers to 'a doing or performing of a practical work.'" LeLeaux, 835 S.W.2d at 51 (quoting Mount Pleasant Indep. Sch. Dist. v. Estate of Lindberg, 766 S.W.2d 208, 211 (Tex. 1989)(citations omitted)). In the present case, "use" occurred when Alexander put his vehicle into action for the purpose of moving the concrete table. Consequently, the Bentsens have alleged that a motor-driven vehicle was used or operated. We next examine whether the Bentsens alleged a nexus between the injury and use of the motor-driven vehicle. The statute provides the injury must "arise from" the use of the vehicle. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A). The Court determined in LeLeaux that "arises from" requires there be some connection between the injury negligently caused by a governmental employee and the act of using or operating the vehicle. See LeLeaux, 835 S.W.2d at 51. The Bentsens contend the injuries are connected to the use of the truck because Levi's injuries resulted from being dragged by the truck. Vidor argues Levi's injuries were not caused by the use of the vehicle, but rather by Levi becoming entangled in the rope. Vidor suggests the motor vehicle was "the setting" for Levi's injuries, thus the injury did not arise from the use of the vehicle. Vidor relies on a number of cases in support of its contention. That reliance is misplaced because in those cases the vehicle was merely the situs of the injury and the operation of the vehicle did not cause it to become an active participant in the events which caused the injury. See LeLeaux, 835 S.W.2d at 51 (school district was not liable when a student hit her head jumping through emergency door on parked and unattended school bus); Hopkins v. Spring Indep. Sch. Dist., 736 S.W.2d 617, 619 (Tex. 1987) (school district was not liable for failing to provide adequate medical care to a student with cerebral palsy who suffered convulsions while on a school bus); Luna v. Harlingen Consol. Indep. Sch. Dist., 821 S.W.2d 442, 445 (Tex. App.--Corpus Christi 1991, writ denied) (even though the school district had control over the planning and layout of the bus stop, the school district was not liable when children were hit by third party's vehicle while awaiting arrival of school bus at the poorly planned location); Naranjo v. Southwest Indep. Sch. Dist., 777 S.W.2d 190, 192-93 (Tex. App.--San Antonio 1989, writ denied) (school district was not liable when students suffered injuries while working on a privately owned vehicle in an auto mechanics class); Heyer v. North East Indep. Sch. Dist., 730 S.W.2d 130, 132 (Tex. App.--San Antonio 1987, writ ref'd n.r.e.) (school district was not liable when a third party lost control of a private vehicle and hit students waiting at bus stop on the school grounds); Estate of Garza v. McAllen Indep. Sch. Dist., 613 S.W.2d 526 (Tex. Civ. App.--Beaumont 1981, writ ref'd n.r.e.) (school district was not liable when a student was stabbed to death by third party while riding school bus). In the case at bar, Alexander's vehicle was not simply the "place" where the injury happened. The facts alleged do not establish that the rope, by itself, dragged Levi or that his injuries were caused when he became entangled in the rope and fell. The alleged facts show Levi's injuries were caused when the vehicle was put in operation and pulled on the rope, causing Levi to be dragged by the vehicle. The rope as an inanimate object was incapable of inflicting dragging injuries without the aid of a force acting upon the rope, which in this case was the motor vehicle. Issue two is overruled and the trial court's order is affirmed. AFFIRMED. CHARLES KREGER Justice Submitted on February 24, 2005 Opinion Delivered July 14, 2005 Before Gaultney, Kreger, and Horton, JJ. 1. We note the current Election of Remedies Statute, Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (Vernon Supp. 2005), does not apply to this case, as the filing date of this action (June 30, 2003) predates the effective date of the relevant amendments to the statute. 2. We do not address the issue of satisfaction, or whether a plea to the jurisdiction would be the appropriate vehicle to raise that issue, as it has not been presented to either this court or the trial court.