Jacquelyn S. Harrison v. Dallas Area Rapid Transit and Lilly Hayes

11th Court of Appeals Eastland, Texas Opinion Jacquelyn S. Harrison Appellant Vs. No. 11-01-00053-CV B Appeal from Dallas County Dallas Area Rapid Transit and Lilly Hayes Appellees Jacquelyn S. Harrison sued Dallas Area Rapid Transit (DART) and Lilly Hayes, a bus driver for DART, for injuries received when a car hit her after she stepped off a DART bus. DART and Hayes filed a no-evidence motion for summary judgment which the trial court granted. We affirm. The accident occurred at the designated bus stop in the 6800 Block of Skillman Street in Dallas. Mildred Louise Hardin, a passenger with Harrison on the bus, testified that there were some rowdy men on the bus who rang the bell to stop after the bus driver had passed their bus stop. When the bus got to the next bus stop, where the accident happened, the men got off but were Ahurrahing the bus driver.@ Hardin said that she then was surprised to see a car coming around the right side of the bus as Harrison was stepping off the bus with her groceries but that it was too late to warn Harrison about the car. Shadrack Ruto, the driver of the car, testified that he was driving in the middle lane of Skillman Street when a car to his right cut in front of him and slammed on its brakes. He applied his brakes, but they did not work. Ruto said that he then swerved to the right to miss the car. When he swerved to the right, Ruto saw the bus ahead of him; and he drove further to the right off the road. At that point, Ruto saw that: [A]head of me was a creek. So I turned the car around trying to get back to the road and then again here is the bus. And now the bus is between me and the road. So, I tried to drive the car and not go into the creek and not hit the bus and then driving B of course, at that time, I was panicking. I didn=t know whether I was going to make it. And then I looked at this side and there was a cement block wall B cement wall. So I drove between the bus and the cement wall. Ruto recalled hitting the bus sign and then hitting something else. Harrison claimed that the bus stopped too quickly and that the sudden stop caused traffic to back up and caused Ruto to swerve and hit her. In their motion for summary judgment, appellees asserted that DART was entitled to governmental immunity and that Harrison had produced no evidence of a waiver of governmental immunity. The trial court agreed, granting the summary judgment on the basis of governmental immunity. Standard of Review The trial court must grant a no-evidence motion for summary judgment unless the non-movant produces evidence that raises a genuine issue of material fact on the challenged element of his claim or defense. TEX.R.CIV.P. 166a(i). The appellate court reviews evidence presented in response to a motion for a no-evidence summary judgment in the same way it reviews evidence presented in support of, or in response to, a motion for traditional summary judgment; it accepts as true evidence favorable to the non-movant and indulges every reasonable inference and resolves all doubts in favor of the non-movant. Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex. App. B Eastland 2000, pet=n den=d); see American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420 (Tex.1997). The appellate court reviews, however, only evidence presented by the non-movant. Rule 166a(i); Hight v. Dublin Veterinary Clinic, supra at 618-19. If the non-movant presents more than a scintilla of evidence on the disputed element, a no-evidence summary judgment is improper. Hight v. Dublin Veterinary Clinic, supra; Denton v. Big Spring Hospital Corporation, 998 S.W.2d 294, 298 (Tex.App. B Eastland 1999, no pet=n). Analysis DART, a Texas regional transportation authority, is a government agency. Under the doctrine of sovereign immunity, the State and its agencies are generally immune from suit unless the State gives its consent to be sued or the Texas Tort Claims Act waives governmental immunity. TEX. CIV. PRAC. & REM. CODE ANN. ' 101.001 et seq. (Vernon 1997 & Supp. 2002); Federal Sign v. Texas Southern University, 951 S.W.2d 401 (Tex.1997). The Texas Tort Claims Act waives governmental immunity only in certain situations. Section 101.021(2) provides for waiver of governmental immunity for: [P]ersonal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. Harrison attached the affidavit of David Steitle, her expert, to her response to the motion for summary judgment. The Steitle affidavit contained the following conclusions: e. The bus coming to a quick stop caused traffic to back up behind the bus. f. The bus was a proximate cause of this accident forcing traffic to back up limiting Mr. Ruto=s options to avoid the accident. The appellees filed a Daubert/Robinson challenge.[1] The trial court struck Paragraphs e and f of the Steitle affidavit because it found that there was no evidence that the sudden stop of the bus caused traffic to back up or that a car swerved into Ruto=s lane because of the bus=s sudden stop. The court further found that there was no evidence that the actions of Ruto were causally connected to any action by the bus. Steitle=s affidavit does not state any objective facts upon which he reached his conclusions in Paragraphs e and f of his affidavit. Steitle=s opinion was founded upon Amere possibility, speculation, and surmise.@ Texas Employers= Insurance Association v. Schaefer, 598 S.W.2d 924 (Tex.Civ.App. B Eastland), aff=d, Schaefer v. Texas Employers= Insurance Association, 612 S.W.2d 199, 204 (Tex.1980). The trial court did not abuse its discretion in striking Paragraphs e and f of the Steitle affidavit. There is no evidence that a quick stop by the bus or any action taken by the bus driver was a proximate cause of the accident. There was no waiver of sovereign immunity under the Texas Tort Claims Act. This Court=s Ruling We affirm the summary judgment of the trial court. February 21, 2002 PER CURIAM Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Arnot, C.J., and McCall, J., and McCloud, S.J.[2] [1]Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); E.I. du Pont de Nemours and Company, Inc. v. Robinson, 923 S.W.2d 549 (Tex.1995). [2]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.