Amarillo Court of Appeals holds private company contracted to run city buses did not establish it was entitled to derivative immunity

Charles Brown v. Waco Transit System 07-16-00258-CV (Tex.App—- Amarillo, October 27, 2017) 

The Amarillo Court of Appeals reversed an order granting a plea to the jurisdiction by the Waco Transit System, Inc. (“WTSI”).

Brown alleges he suffered personal injuries while riding a bus operated by WTSI. Specifically, during Brown’s ride the door fell open, striking him on the head and causing injury. Brown sued WTSI, but his petition was contradictory alleging in some portions that WTSI is a non-profit doing business with Texas but other sections alleged it is a governmental entity. WTSI filed a plea to the jurisdiction alleging it is immune from suit under governmental immunity because it is the “agent” of the City of Waco. WTSI alleged it contracted with the City of Waco to perform governmental functions, entitling it to derivative immunity. The trial court granted the plea and Brown appealed.

A private entity generally is not entitled to claim governmental immunity unless “‘its actions were actions of’ the government, ‘executed subject to the control of’ the governmental entity.” Specifically, “[i]f the contractor or agent lacked discretion, its actions were the actions of the governmental unit; if it had discretion, then it may be sued like any other private actor…” The contract shows merely that the City and WTSI agreed to the appointment of WTSI as the City’s agent for the limited purpose of operating the City’s bus system. Under the contract, while the City agreed to “provide” the buses, WTSI is the employer of the transit system employees, including the drivers and mechanics. The parties’ agreement thus does not give the City control over the details of the operation or use of the buses, and the record contains no evidence that the work was performed in a manner giving the City such control.  WTSI’s ability to assert the City’s governmental immunity depends on proof its actions were those of the City, and it exercised no discretion in its activities. Factual evidence may later prove differently, but for plea purposes, WTSI did not shown it is entitled to share the City’s governmental immunity. Order granting the plea was reversed.

If you want to read this opinion, click here. The panel consists of Justice Quinn Justices, C.J, Campbell, Parker. Justice James T. Campbell delivered the opinion of the court. To see the attorneys listed for the Appellant and Appellee’s click here.