James Frank Gilbert and Palestine ISD v. Charles Avery Dykes and Yvonne Dykes as Next Friend to Jennifer Dykes, a Minor

NO. 12-02-00126-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS BRENDA HARDIN, JAMES FRANK GILBERT INDIVIDUALLY AND § APPEAL FROM THE PALESTINE INDEPENDENT SCHOOL DISTRICT, APPELLANTS V. § COUNTY COURT AT LAW OF CHARLES AVERY DYKES, AND YVONNE DYKES AS NEXT FRIEND § ANDERSON COUNTY, TEXAS OF JENNIFER DYKES, A MINOR APPELLEES James Frank Gilbert and Palestine Independent School District ("PISD") appeal from the trial court's denial of their immunity-based motion for summary judgment in this personal injury suit filed by Charles Avery Dykes and Yvonne Dykes, as next friend to Jennifer Dykes, a minor. In their sole issue, Appellants assert the trial court erred in denying their motion for summary judgment. We reverse and render. Background Eleven-year-old Jennifer Dykes was hit by a minivan as she crossed the street on her way home. She had just gotten off a PISD bus driven by Gilbert. Her parents sued PISD, Gilbert, and Brenda Hardin, the driver of the minivan, for personal injuries. The Dykes asserted in their petition that Appellants are liable under the Texas Tort Claims Act because Jennifer's injuries were caused by the negligent use and operation of motor driven equipment. Appellants filed a motion for summary judgment asserting sovereign and official immunity which the trial court denied. This interlocutory appeal followed. Official immunity In their issue on appeal, Appellants contend the trial court erred in denying their motion for summary judgment. They assert that they proved that Gilbert is entitled to the affirmative defense of official immunity. They argue that, at the time of the accident, Gilbert, who was acting in the course and scope of his employment, was performing a discretionary function and acted in good faith. Rejecting the Dykes' assertion of the importance of whether the flashing lights were activated prior to the stop, Appellants insist that the relevant inquiry is how long Gilbert should have waited after Jennifer exited the bus before proceeding. They contend that the determination of how long to wait for students to disembark from the bus and whether they are safely away from the bus before the driver proceeds requires the driver's independent deliberation, as there is no mandatory policy. Thus, they argue, Gilbert established his right to official immunity and, they further argue, it follows that PISD retains its sovereign immunity. Standard of Review To obtain a summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id. Summary judgment for a defendant is proper when the summary judgment evidence negates an essential element of the plaintiff's cause of action as a matter of law or conclusively establishes all elements of an affirmative defense as a matter of law. See Black v. Victoria Lloyds Ins. Co, 797 S.W.2d 20, 27 (Tex. 1990). Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the non-movant to produce controverting evidence raising a fact issue as to the elements negated. Torres v. Western Cas. & Sur. Co., 457 S.W.2d 50, 52 (Tex. 1970); Owen Elec. Supply, Inc. v. Brite Day Constr. Inc., 821 S.W.2d 283, 286 (Tex. App. - Houston [1st Dist.] 1991, writ denied). Applicable Law Official immunity is a common law defense that protects governmental officers and employees from personal liability. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Government employees are entitled to official immunity from suit arising from the performance of their discretionary duties in good faith as long as they are acting within the scope of their authority. Id. A function is ministerial if the law prescribes the duties to be performed with such precision that nothing is left to the discretion of the actor. Id. at 654. If an action involves personal deliberation, decision and judgment, it is discretionary. Id. The test for objective good faith is whether a reasonably prudent official, under the same or similar circumstances, could have believed that his actions were justified. City of Galveston v. Burns, 949 S.W.2d 881, 885 (Tex. App.- Houston [14th Dist.] 1997, no writ). Good faith may be established through the testimony of the employee if the testimony is clear, positive, direct, otherwise credible, free from contradiction and readily controvertible. Id. To controvert the employee's summary judgment proof on good faith, the non-movant must show that no reasonable person in the defendant's position could have thought the facts were such that they justified the defendant's acts. Chambers, 883 S.W.2d at 657. The burden is on the defendant to establish all elements of the defense of official immunity. Id. at 653. Immunity from suit bars an action against the State unless the State expressly consents to the suit. Texas Dep't of Trans. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The Tort Claims Act (the "Act") provides a limited waiver of sovereign immunity in certain circumstances. A governmental unit is liable for personal injury proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if the personal injury arises from the operation or use of a motor-driven vehicle or motor driven equipment and the employee would be personally liable to the claimant according to Texas law. Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1) (Vernon 1997). If the employee is protected from liability by official immunity, the employee is not personally liable to the claimant and the government retains its sovereign immunity under subsection one of the Act. DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex. 1995). The Petition The Dykes alleged in their petition that Gilbert, while acting in the scope of his employment with PISD, negligently operated a school bus in several different ways. They alleged he failed to operate the bus in compliance with traffic regulations pertaining to the use of flashing lights when discharging children, failed to operate and use warning signals in a timely fashion to indicate to oncoming traffic that the bus was coming to a stop or had stopped, failed to make sure Jennifer safely exited the bus and crossed the street safely, and failed to remain stopped for a sufficient amount of time in order to make sure Jennifer crossed the street safely. They further alleged that Gilbert was reckless and was inattentive. Motion for Summary Judgment Appellants filed a motion for summary judgment asserting they are entitled to judgment as a matter of law on two separate bases. First, they argued that because Jennifer was not hit by the school bus, neither the bus nor Gilbert caused her injuries. Therefore, as a matter of law, Jennifer's injuries were not caused by the operation or use of motor driven equipment owned by the State as required to invoke the waiver provision in section 101.021(1) of the Act. Second, they asserted that Gilbert is entitled to official immunity because at the time of the incident he was acting in good faith, within the course and scope of his employment, and performing discretionary acts. Specifically, they asserted that the driver's determination of how long to wait for students to disembark from the bus and whether they are safe requires independent deliberation, thus constituting discretionary acts. As summary judgment evidence, Appellants presented the police incident report, Gilbert's affidavit, the affidavit of Steve Thorn, and PISD's Transportation Bus Drivers Handbook. In the police report, the officer stated that Ms. Hardin had stopped in obedience to the flashing red lights on the school bus. The bus turned off the flashing red lights and began traveling south. Ms. Hardin proceeded north and Jennifer walked across the street from behind the bus, entering the path of Ms. Hardin's vehicle. In his affidavit, Gilbert explained that he has discretion to determine where it is appropriate to stop to allow students to enter and exit the bus. He further explained that, as there is no district-wide policy mandating the amount of time he is to wait for students to enter or exit the bus, he makes the determination of how long to wait. He bases this determination on his experience, the number of students entering and exiting, the weather, traffic, and whether students appear to be safely away from the street and bus. On the day of the accident, he activated his warning signals prior to approaching the intersection of North Queen and West Lacy, where there is a four-way stop. He stopped prior to the intersection and opened the bus doors. The flashing lights automatically turned on when the doors opened and automatically turned off when the doors closed. Several students exited the bus and went up into a parking lot. Once he determined the students were safely away from the bus and street he closed the doors. He then proceeded into the intersection, turned left, and continued on his route. He never saw Jennifer attempt to cross the street and did not see the accident. Steve Thorn, Director of Transportation with PISD, explained in his affidavit that the PISD Transportation Bus Drivers Handbook contains the policies and procedures bus drivers must follow when operating a school bus. He stated that drivers must exercise their discretion to determine whether students are safely away from the bus and when it is safe for them to proceed. Finally, he stated that drivers must also use their discretion to determine whether students want to cross the street so that the proper procedures can be followed. The introduction to the handbook states that "[t]he safety of the pupils being transported is the responsibility of the driver." Under the section entitled "Special Procedures," the handbook states that loading and unloading students requires the use of good judgment by the driver. The handbook specifies the procedures the driver must follow when unloading students on the bus route at their bus stops: Check traffic in area as the bus stop is approached. Activate yellow alternating flasher warning lights at least 500 feet from the bus stop. When applicable, turn on right turn signal indicator at least 100 feet before pulling onto the shoulder. For students living on the left side of roadway, have them form a single line on the right side of the roadway approximately six to eight feet in front of the bus, or until they can make eye to eye contact with you. Check traffic to insure that it is safe for the student to cross. Motion the students across roadway. Close door and activate left turn signal if applicable. Check for clear traffic and children. Proceed when safe. Under the section entitled "Procedures Governing the Operation of School Buses," the handbook states that alternating red flashing warning lights are used only when loading and unloading children. Response to Motion for Summary Judgment The Dykes filed a response to Appellants' motion for summary judgment in which they asserted that there is a fact issue regarding the operation or use of the bus. Specifically, they contended there is a fact issue as to whether the failure of the driver to activate the bus's flashing lights or warning signals constituted negligence and was a proximate cause of Jennifer's injuries. The response did not address Appellants' argument that Gilbert is entitled to official immunity. In support of their response, the Dykes presented portions of Brenda Hardin's and Gilbert's deposition testimony, portions of PISD's Transportation Bus Drivers Handbook, and the affidavit of eyewitness Nioka Long. Ms. Hardin stated that the driver let the students off the bus, turned off the lights, and proceeded to the stop sign. After the bus stopped at the stop sign, she proceeded through the intersection. She saw Jennifer when she walked from behind the bus into the path of her car. In the one page of Gilbert's testimony that was attached to the response, Gilbert discusses a portion of his route, describing how one boy got off the bus and ran in front of the bus. He then stated, "I didn't put my blinkers on or my caution lights five hundred feet because any next street is going to be - that's going to be an intersection here. That's just like I wouldn't put any left turn signal on because people would be confused." In her affidavit, Nioka Long explained that she lives across the street from the bus stop. She was sitting on her front porch when Gilbert's bus pulled up to the bus stop. She stated that when the bus stopped to let the children off, she did not see any flashing lights. She saw that Jennifer, her next door neighbor, had come around from the back of the bus and began to cross the street. At the same time, a minivan was approaching from the opposite direction of the school bus. She stated that it appeared that the driver of the minivan paid no attention to the bus and that she drove through the intersection without stopping at the stop sign. The Dykes also presented the above-quoted section of the bus drivers' handbook outlining procedures to be taken when unloading pupils on the bus route at their bus stop. Finally, they presented a portion of the handbook section entitled "Operating Procedures." The pertinent statement on that page states: "The red warning lights are not [sic] be activated until after the bus is stopped to load/unload students. Use the flashing amber lights for a pre-warning that you are going to stop." Discussion The trial court's order denied Appellants' motion, apparently finding no merit in either of the two grounds asserted. However, Appellants do not challenge, and we do not consider, the trial court's determination that they did not show as a matter of law that they are entitled to sovereign immunity based on section 101.021(1) of the Act. We consider only whether Appellant's summary judgment evidence conclusively establishes all elements of the affirmative defense of official immunity as a matter of law. The Dykes concede that, at the time of the accident, Gilbert was acting in the course and scope of his employment. We next consider whether Gilbert's actions were ministerial or discretionary. Clearly, a school bus driver has a duty to oversee the safety of his riders. See Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 214 (Tex. 1989) (J. Cook, concurring) ("The duty of a school bus driver continues not only until the student has safely exited the bus, but if the student must cross the road, continues until the student has done so."). However, "the court's focus should be on whether the [government employee] is performing a discretionary function, not on whether the [government employee] has discretion to do an allegedly wrongful act while discharging that function." Chambers, 883 S.W.2d at 653. The summary judgment evidence shows there is no policy mandating the amount of time a driver is to wait for students to exit the bus. The driver must look at various ever-changing factors to determine whether students are safely away from the bus, whether students want to cross the street, and how long to remain at the bus stop. While the district's handbook identifies procedures to be followed while unloading students, it recognizes that implementing those procedures requires the use of good judgment by the driver. We note also that the handbook specifies that students wishing to cross the street are supposed to form a line in front of the bus. The handbook does not specify what a driver is to do if a student fails to comply with that requirement. While school bus drivers have a duty to unload students in a safe manner, they have discretion in carrying out that duty. See id. at 655 (The supreme court rejected the contention that police officers have no discretion to drive unsafely.). Thus, we cannot say that a PISD bus driver's duties with regard to unloading students at a bus stop are prescribed with such precision that nothing is left to the driver's discretion. Id. at 654. Unloading students at a bus stop involves the bus driver's personal deliberation, decision, and judgment and is therefore a discretionary act. Id. We next consider if the evidence shows whether a reasonably prudent bus driver, under the same or similar circumstances, could have believed that he was justified in closing the doors and continuing on his route when Gilbert did. See Burns, 949 S.W.2d at 885. In his affidavit, Gilbert stated that several students exited the bus and went up into a parking lot. No students indicated to him that they wanted to cross the street. Once he determined the students were safely away from the bus and street, he closed the doors, which caused the flashing lights to automatically turn off. He then pulled away from the curb and continued on his route. Gilbert's factual recitation is otherwise supported by the evidence. See Dovalina v. Nuno, 48 S.W.3d 279, 283 (Tex. App.-San Antonio 2001, no pet.) (Good faith can be established as a matter of law when the employee's factual recitation is otherwise supported by the evidence.). Gilbert's testimony is clear, positive, direct, otherwise credible, free from contradiction and readily controvertible. See Burns, 949 S.W.2d at 885. We conclude that Appellants' summary judgment evidence shows that Gilbert acted in good faith after evaluating the situation. Accordingly, Gilbert met his burden of establishing all elements of the defense of official immunity. See Chambers, 883 S.W.2d at 653; Black, 797 S.W.2d at 27. The burden then shifted to the Dykes to present controverting evidence raising a fact issue as to the elements of official immunity. Torres, 457 S.W.2d at 52. The Dykes' response to the Appellants' motion for summary judgment addressed only the question of PISD's sovereign immunity and focused on whether their cause of action involved the operation or use of the bus. They presented no argument on the issue of Gilbert's official immunity and offered no controverting evidence on any element of this issue. Conclusion Because Gilbert met his burden to establish all elements of the defense of official immunity, the trial court did err in failing to grant summary judgment in his favor. Further, because Gilbert is not personally liable to the Dykes, PISD retains its sovereign immunity under the Act. DeWitt, 904 S.W.2d at 653. Accordingly, the trial court erred in failing to grant PISD's motion for summary judgment. We sustain Appellants' sole issue and reverse the trial court's order denying Appellants' motion for summary judgment. We render judgment granting the motion and dismissing the Dykes' claims against Appellants. Judgment reversed and rendered. SAM GRIFFITH Justice Opinion delivered November 27, 2002. Panel consisted of Worthen, J., and Griffith, J. Gohmert, C.J., Jr., dissenting. I respectfully dissent. In determining whether or not the bus driver's actions at the time of the accident were ministerial or discretionary, the school's own requirements of the driver should be considered more closely. The Transportation Bus Drivers Handbook states to the driver that, "You are responsible for the safety of the children on your bus and you must comply with the rules of loading and unloading a bus." (emphasis added). There is summary judgment evidence to indicate that the driver did not "activate yellow alternating flasher warning lights at least 500 feet from the bus stop," did not "have [the child] form a single line on the right side of the roadway approximately six to eight feet in front of the bus, or until [she makes] eye contact with you," did not "check traffic to insure that it is safe for the student to cross," did not "motion the [student] across the road," did not wait until after all of these things were done to "close door," and may not have "[activated] left turn signal . . . ". There is some evidence to indicate that the bus driver may not have made the first unwritten but critical step of determining where the child was going. At a trial, the jury could consider all of the evidence to make a proper decision, but the constraints on our court require that we consider all of the evidence favorable to the Dykes as true. See Nixon, 690 S.W.2d 546, 548-49. The fact that the Handbook itself states that a driver "must" do these things certainly appears to make these requirements ministerial rather than discretionary, though there may be some discretion involved in precisely how they are done. However, a failure to do these things would remove the qualified sovereign immunity defense from availability through summary judgment while leaving it for the consideration of the jury at trial. Even if, for purposes of argument, the foregoing requirements of the driver's handbook were deemed discretionary, a failure to comply with them should raise a fact question under the Chambers test as to whether or not a reasonably prudent bus driver, under the same or similar circumstances, could have believed that the need to proceed on his route outweighed a clear risk of harm to the public in continuing without following the procedures in the handbook. See Chambers, 883 S.W.2d at 656. It should be noted that no summary judgment evidence has been found in the record of a student handbook, of duties imposed upon the student, or of what rules the student knew. To infer to the student responsibilities not in the record would be improper given the requirements for our review of the trial court's denial of a summary judgment. Also pursuant to Chambers, the plaintiff must show that "no reasonable person in the defendant's position could have thought the facts were such that they justified defendant's acts." Id. at 647. The Texas Supreme Court recognized that this test created in Chambers "is somewhat less likely to be resolved at the summary judgment stage than is the federal test." Id. at 657. Further, in fulfilling our requirements under Nixon, 690 S.W.2d at 548-49, this court must take as true all evidence favorable to the non-movant and indulge every reasonable inference in favor of the non-movant. In following the requirements of our review, this present case is one that the trial judge properly was not able to resolve at the summary judgment stage. The finder of fact at trial would have to sort through the evidence and make these determinations free of the restrictions on our review. For these reasons, I would affirm the trial court's actions and leave these issues for a jury to decide. LOUIS B. GOHMERT, JR. Chief Justice (DO NOT PUBLISH)