Opinion Released November 2, 2017

La Joya Independent School District v. Tanya Gonzalez, No. 13-16-00426-CV (Opinion by Justice Contreras; Panel Members: Justices Rodriguez and Benavides)

In this appeal from the denial of a plea to the jurisdiction, the Thirteenth Court of Appeals analyzed whether the Texas Tort Claims Act waives sovereign immunity when a student dies while attempting to board a bus.

This case involves the death of a 13-year-old attempting to cross an expressway in order to board a school bus. On October 23, 2012, 13-year-old Josue Rogelio Uranga missed his La Joya Independent School District bus at its usual stop on US. Expressway 83. Uranga arrived at the stop after the bus had turned into the crossover lane between the two main lanes. The bus driver, Salvador Rodriguez, Jr., stopped the bus and activated the warning lights, leading Uranga to believe that he could cross the Expressway and board the bus. Uranga was struck and killed by Jaime Venecia’s vehicle as he attempted to cross the road.

Gonzalez, individually and on Uranga’s behalf, filed suit against La Joya ISD and Venecia. Regarding La Joya ISD, Gonzalez claimed that District employee Rodriguez acted negligently in the course and scope of his employment by creating a non-designated stop and proximately causing Uranga’s death.

The District filed a plea to the jurisdiction—attaching no evidence—claiming that it was immune because (1) the death did not arise out of the operation or use of a motor vehicle; and (2) Gonzalez did not provide the statutorily-required notice. Gonzalez responded by arguing that Rodriguez’s driving and stopping the bus and activating the flash warning lights constituted operation of a motor vehicle, and that the district had actual notice of her claim such that no notice was required. Attached to her response, Gonzalez included two police reports—neither attributing fault to Rodriguez—along with the District’s employee handbook which addressed accidents involving vehicles owned by the District.  Gonzalez pointed to the District’s investigation at the scene of the death on the morning of the accident. Gonzalez further emphasized that Rodriguez was suspended without pay and subjected to a drug test, pursuant to District policy requiring such procedures when there is a preponderance of the evidence that a District-owned vehicle contributed to an accident.

The trial court held two hearings on the issue. At one of the hearings on the plea to the jurisdiction, the District introduced a videotape taken from inside Rodriguez’s bus on the day of the incident. Rodriguez could be heard talking to a student passenger in Spanish about Uranga’s death, acknowledging that he might be blamed for the death, and instructing the student about what the tell the police. The video also captured Rodriguez’s phone call to a person who appeared to be his supervisor, acknowledging that Uranga thought the bus was going to wait for him in the crossover when he ran across the street and was killed.

After the hearings, the trial court denied the District’s plea. The District filed an interlocutory appeal.

Held: The trial court properly denied the District’s plea to the jurisdiction because the pleadings sufficiently invoked the Texas Tort Claims Act, and the District did not present evidence to the contrary.

The Thirteenth Court of Appeals began by noting the procedural posture of the District’s plea to the jurisdiction. The court emphasized that a defendant cannot advance a “no-evidence” plea to the jurisdiction and force the plaintiff to raise a fact issue.

The court then turned to the requirements for a waiver of sovereign immunity under the Texas Tort Claims Act (“TTCA”). The TTCA waives sovereign immunity if, among other things, (1) the injury or death proximately arises from the operation or use of a motor vehicle, (2) the death was proximately caused by a negligent act of an employee acting in the scope of his employment, and (3) the governmental entity receives notice of a claim against it not later than six months after the day on which the incident giving rise to the claim occurred. However, notice is not required if the entity has actual notice of the incident, the injury, and subjective awareness of its fault in producing the injury.

The Thirteenth Court of Appeals noted that Gonzalez’s pleadings alleged that the District was subjectively aware of its fault, and the District produced no evidence to the contrary and thus failed to meet its burden to negate the jurisdictional facts pleaded by Gonzalez. Moreover, the jurisdictional evidence presented at the hearings reflected the existence of a fact issue. Although the District’s investigation did not show actual notice, the taped recording from the bus on the day of the incident established that Rodriguez called “Lupe”—a person the context of the call indicated was likely his supervisor—and informed him of his potential fault. Thus, the evidence established that Rodriguez had subjective notice of his fault and there was a fact issue as to whether such notice could be imputed to the District. The trial court did not err by denying the District’s plea to the jurisdiction.

Arising from Operation or Use of a Motor Vehicle

Next, the District argued that Gonzalez’s claim did not involve operation or use of a motor vehicle, as required by the TTCA. The Thirteenth Court noted that Rodriguez was alleged to have contributed to Uranga’s death by temporarily stopping the bus in the crossover and activating the warning lights. The District did not produce evidence to the contrary. The court concluded that temporarily stopping the bus and activating its lights are purposeful acts that constitute operation and use of the bus.

The court then turned to the “arose from” element. The “arose from” requirement requires more than mere involvement of the property, but less than proximate cause. Gonzalez’s alleged claim “arose from” the bus because Uranga was struck and killed while attempting to board the bus. Moreover, Gonzalez alleged that Uranga would not have tried to cross the expressway but for Rodriguez’s decision to stop the bus in an unsafe, undesignated location and activate the bus’s warning lights. These allegations show both cause in fact and foreseeability.

Gonzalez’s pleadings were thus sufficient to support a waiver of sovereign immunity under the TTCA, and the trial court did not err by denying the District’s plea to the jurisdiction.

Read the Full Opinion Here