Operation or use of motor driven equipment does not include maintenance and employee control must be direct says 6th Court of Appeals
Mt. Pleasant Independent School District v. Dona K. Elliott, 06-13-00115-CV (Tex. App. – Texarkana, April 17, 2014).
This is a Texas Tort Claims Act case arising from a bus accident allegedly due to malfunctioning brakes. In this interlocutory appeal the Texarkana Court of Appeals reversed the denial of the Mt. Pleasant Independent School District’s (“MPISD”) plea to the jurisdiction and rendered a dismissal.
Elliott worked for Durham Transportation, which in turn was contracted with the MPISD to maintain its bus fleet and operate its busses. Elliott alleges that while driving bus #14, the brakes failed resulting in acrash and broken kneecap. The accident report found, and the MPISD does not dispute, that the crash was caused by faulty brakes and not driver error. Elliott sued the MPISD alleging improper maintenance caused her injuries. The MPISD filed a plea to the jurisdiction which the trial court denied.
The Texarkana Court of Appeals noted in a footnote that Elliott filed for worker’s compensation benefits and was paid, which would account for her suit against the MPISD and not her employer. The court then analyzed the Texas Tort Claims Act language in relation to the facts. No MPISD employee operated or used the bus. Elliott’s asserted that it maintained control over the bus, but there is no evidence or assertion that a District employee exercised direct control over the bus resulting in the accident. After analyzing various cases involving operation by someone other than an employee, but where a governmental entity employee was directing control, this court determined that the “control theory” of waiver must involve direct control by an entity employee, else no waiver exists. Further, under the TTCA, the phrase “operation or use” does not include “maintenance.” The Legislature has used the term “maintenance” in other waiver statutes, but failed to list it in the TTCA. Therefore the court determined its omittance was an intentional decision not to waiver immunity for maintenance of vehicles. So any negligence of a District employee in not maintaining bus #14 before turning control over to Durham does not fall within the TTCA waiver.
If you would like to read this opinion click here. Panel: Chief Justice III Morriss, Justice Carter, and Justice Moseley. Opinion by Chief Justice Morriss. The attorneys listed for the MPISD are Oliver B. Krejs, Katherine L. Killingsworth, and Bradley E. McLain. The attorneys listed for Elliott are Marisa M. Schouten and John (Jack) Walker III.
