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Hardin v. Dykes11/27/2002
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 goo
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