Court considered statements made by bus driver within onboard system as creating a fact issue on “actual notice” of fault in death of student
La Joya Independent School District v. Tanya Gonzalez, Individually and A/N/F of Josue Rogelio Uranga, Deceased Minor 13-16-00426-CV (Tex.App—- Corpus Christi & Edinburg, Texas November 2, 2017)
This is an appeal in a Texas Tort Claims Act student/bus case where the 13th Court of Appeals affirmed the denial of LJISD’s plea to the jurisdiction.
Uranga, a 13-year-old student who was usually picked up at a specific bus stop for school was not there when the bus began departing. When the driver, Rodriguez, saw Uranga approaching the bus stop on foot, he stopped the bus and activated its flashing warning lights but he had already crossed the expressway. As Uranga crossed the expressway to reach the bus, he was struck by a vehicle and died. The family sued. LJISD filed a plea to the jurisdiction, which was denied. LJISD appealed.
Under the actual notice exception to statutory written notice within 180 days, “actual notice” in this context means that the governmental unit has “knowledge of (1) a death, injury, or property damage; (2) the governmental unit’s alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved.” LJISD’s police department arrived at the scene of the accident on that day and conducted their own investigation. In Gonzalez’ pleadings, she asserts the LJISD’s policies expressly state a mandatory drug test of a driver is required only when there is a preponderance of evidence that a District-owned vehicle contributed to an accident. Gonzalez argued since LJISD forced Rodriguez to submit to a mandatory drug test the District established some actual, subjective awareness it contributed to the accident. The court disagreed, noting merely investigating an accident is insufficient and the policy manual also stated drug testing is mandatory when a death is involved, regardless of fault. However, the bus driver was recorded by the onboard bus system as telling students he was going to call his supervisor and the specific details of how he might have been responsible for the accident. While LJISD asserts it was not aware of any subjective fault, the knowledge of the bus driver and the court’s speculation as to a call made to a presumed supervisor creates a fact issue on actual knowledge. Further, “operation” of a motor vehicle refers to “a doing or performing of a practical work.” By stopping the bus where he did, Rodriguez used the bus to indicate to Uranga it was safe to cross the expressway when it was not. This is encompassed in the waiver of immunity under the TTCA. The plea was therefore properly denied.
If you want to read this opinion, click here. The panel consists of Justice Rodriguez Justices, Contreras, and Benavides. Justice Contreras delivered the opinion of the court. To see the attorneys listed for the Appellant and Appellee’s click here.