Failure to drive school bus to hospital instead of waiting for ambulance to assists non-responsive child is a non-use of property, which does not waive immunity says Beaumont Court of Appeals.

Nathan Delameter et. al, v. Beaumont Independent School District (Tex. App — Beaumont, February 1, 2017)

This is a wrongful death/Texas Tort Claims Act case where the Beaumont Court of Appeals affirmed the granting of the school district’s plea to the jurisdiction.

A disabled/wheelchair bound child was receiving therapy while attending school in the Beaumont Independent School District (“BISD”). The bus BISD used to pick up the child had both a driver and an attendant. After his chair was placed on the bus, it was locked in place. The duties of the District’s employees required them to lift the chair onto the bus, to lock the chair in place, and to monitor the child’s condition on the way to school. During transport the child became unresponsive. The driver and attendant stopped the bus and called BISD headquarters. They did not drive the bus to any emergency room, but awaited the arrival of an ambulance consistent with District policies.  Unfortunately, the child died. The family brought suit against BISD asserting the bus was driven in a negligent manner causing the child to become nonresponsive. The District filed a plea to the jurisdiction, which was granted. The family appealed.

According to the Delameters, the bus’s movement eventually caused the restraints to tighten around the child causing him to lose consciousness. The Delameters also argued that stopping the school bus and waiting for an ambulance when the driver could have made it to a nearby hospital involved the use or the operation of the bus. However, after analyzing the evidence submitted, the court held nothing indicated the driver drove the bus at an unsafe speed or that he engaged in any unsafe maneuvers. Even though the Plaintiff’s evidence suggests that the child’s harness may have required adjustment, this statement amounts to no evidence to show that the harness injured or caused his death. Further, the failure to drive the bus to the hospital is a non-use of property, which does not waive immunity. As a result, the plea was property granted.

If you would like to read this opinion click here.  Panel consists of Chief Justice Kreger, Justice Horton and Justice Johnson. Memorandum Opinion by Chief Justice Horton. The attorneys listed for the Beaumont Independent School District are Frances Broussard and Christopher B. Gilbert. The attorneys listed for the Delameters are Cody A. Dishon and Paul F. Ferguson II.



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