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Doctor v. Pardue9/15/2005
protection from liability for conduct which occurred outside of Texas and which was not specifically directed at Texas residents.
Accordingly, we hold that the trial court erred in concluding that Texas was the state with the most significant relationship to the issue of charitable immunity as to EAA and in applying the Act to limit the liability of EAA.
We sustain appellants' fifth issue.
Volunteer Immunity
In their sixth issue, the Doctors argue that the trial court erred in applying the Act to completely immunize Pardue because their injuries were caused by Pardue's negligent operation or use of an airplane. The Doctors further argue that because the question of whether there has been a statutory waiver of immunity is a question for the court, the trial court erred in submitting a question to the jury concerning the application of the Act to Pardue.
Pardue argues that the Act immunizes him because his alleged negligence did not involve the operation or use of an airplane and there was no nexus between his alleged negligent operation or use of an airplane and the Doctors' injuries. He contends that the Doctors' theory of liability was confined to their allegations that Pardue's negligence during his pre-flight briefing caused the collision and asserts that the Doctors "unwaveringly focused not on Pardue's operation or use of an airplane but upon Pardue's inadequate briefing and poor communication." He also asserts that the Doctors' evidence in support of their theory supports a deemed finding by the jury that the Doctors' injuries were not proximately caused by Pardue's negligent operation or use of an airplane.
The Act provides in relevant part:
(b) Except as provided by Subsection (c) of this section . . . a volunteer who is serving as a direct service volunteer of a charitable organization is immune from civil liability for any act or omission resulting in death, damage or injury if the volunteer was acting in good faith and in the course and scope of his duties or functions within the organization.
(c) A volunteer of a charitable organization is liable to a person for death, damage, or injury to the person or his property proximately caused by any act or omission arising from the operation or use of any motor-driven equipment, including an airplane, to the extent insurance coverage is required . . . and to the extent of any existing insurance coverage applicable to the act or omission.
Act of June 1, 1987, 70th Leg., ch. 370, § 1, 1987 Tex. Gen. Laws 1808 (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 84.004 (Vernon 2005) (emphasis added)).
The charge contained a question that asked the jury whether Pardue "was acting in good faith and in the course and scope of his duties and functions" as a volunteer in a charitable organization at the time of the occurrence in question. The charge did not contain any question as to whether the Doctors' injuries were proximately caused by an act or omission arising from the operation or use of an airplane, and neither party requested a submission on this issue. Instead, the charge simply asked the jury whether the negligence of Pardue caused the occurrence in question.
During the charge conference, the Doctors objected to the submission of the question regarding Pardue's volunteer status as "not relevant since [all parties] agreed that Mr. Pardue is limited to the $175 million in coverage." It appears from the record that, by making this objection, the Doctors conceded that, if the Act properly applied, Pardue was a volunteer and he was entitled to the protections afforded under subsection (c) of sect
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