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Cortez v. Weatherford Independent School District6/13/1996
This is a wrongful death suit brought by Appellants Ramon Manzano Cortez and Maria De Jesus Hernandez individually and as next friend of Anastacio Manzano Hernandez against Weatherford Independent School District and two of its employees, Linda Gerdes and Linda Baumgartner. In their petition, Appellants claimed that Appellees were negligent when a passing motorcycle struck and killed Guadalupe Manzano Hernandez, moments after he was unloaded from a school bus. The three Appellees moved for summary judgment, asserting governmental and official immunity. After a hearing, the trial court granted Appellees' motion for summary judgment. Because we find, based on the record before us, that Gerdes and Baumgartner were performing a discretionary function, that the decision by Weatherford I.S.D. not to install a stop arm on the bus was discretionary, and that no fact issues exist, we overrule Appellants' points of error and affirm the trial court's summary judgment.
Relevant Facts
On February 6, 1992, six-year-old Guadalupe Manzano Hernandez rode the bus home from school. Guadalupe was accompanied by his older brother Anastacio. The school bus was owned and operated by Weatherford I.S.D. Driving the bus that day for Weatherford I.S.D. was Linda Gerdes, a substitute bus driver. Also on board was another Weatherford I.S.D. employee Linda Baumgartner, who was the regular bus driver but, because of an injury, was on the bus as a monitor.
As the bus ride through rural Parker County continued, a motorcycle driven by Roy Jones began to follow the bus. Gerdes stated in her deposition that she first heard the motorcycle behind the bus at the stop before Guadalupe's. Both Gerdes and Baumgartner testified in their depositions that Jones had a reputation in the community for showing off behind buses and was known to go around buses when they were pulling up for a stop. Baumgartner even stated that in one such incident she almost hit Jones.
Finally, the bus reached Guadalupe's home and he and Anastacio exited. The two boys crossed in front of the school bus and as Guadalupe proceeded past the bus and onto a trail that ran along the side of the road, he was struck by Jones's motorcycle and killed.
Based on this incident, Guadalupe's family brought suit against Weatherford I.S.D., Gerdes, and Baumgartner. Appellants contended that the accident arose from the operation or use of the school bus. They alleged that Appellees were negligent for failing to activate warning lights on the rear of the bus and, generally, for allowing Guadalupe to unload from the bus and attempt to proceed across the street as he did. Appellants also alleged that Weatherford I.S.D. was negligent for failing to have the bus equipped with a stop arm.
Appellees collectively filed a motion for summary judgement in which Gerdes and Baumgartner asserted the affirmative defenses of common law official immunity and immunity under section 21.912 of the Texas Education Code. Likewise, Weatherford I.S.D. asserted immunity under the doctrine of sovereign immunity, contending that Appellants' claims did not fall into an exception to immunity created by the Texas Tort Claims Act. After a hearing, the trial court granted Appellees' motion for summary judgment.
On appeal, Appellants complain in six points of error that the trial court erred in granting summary judgment. More specifically, they contend that the trial court erred in granting Appellees' summary judgment because (1) Gerdes and Baumgartner were performing a ministerial function and not a protected discretionary one, and (2) the incident arose out of the operation or use of the bus and, therefore, sovereign immunity is
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