S.W., as Next Friend of A.W. v. Arlington Independent School District and Lindsey Foster, 02-13-00280-CV (Tex. App. – Fort Worth, June 12, 2014).
This is an appeal from the grant of a plea to the jurisdiction arising from the injuries sustained by a child after being subjected to exercise which complicated a known medical condition.
Foster taught physical education classes for AISD. A.W. was a child with a known condition of inflammation of the anterior chest wall. Foster required students to perform high intensity exercises which resulted in extreme pain, the inability to sit, sleep, move and blood in the urine of A.W. She was diagnosed with an acute, potentially fatal disease of skeletal muscle injuries allegedly due to the force exercises. The AISD and Foster filed pleas to the jurisdiction which the trial court granted. S.W. appealed.
The court first analyzed and determined the Foster was entitled to dismissal under Tex. Civ. Prac. & Rem. Code Ann. §101.106(e) which is an election of remedies when suit is brought against an employee and an entity. After a pleading analysis, the court then determined the only remaining claim was a promissory estoppel claim against the AISD based on statements in the hospital by AISD officials that they would take care of the situation. S.W. argued this implyed payment of medical expenses. However, estoppel does not apply against a governmental entity and waiver-by-conduct has been rejected. Further school districts can never perform proprietary functions. As a result, the AISD retains immunity from all claims.
If you would like to read this opinion click here. Panel Justice Livingston, Justice Gardner, Justice McCoy. Opinion by Justice Livingston. The attorney listed for AISD is Dennis J. Eichelbaum. The attorney listed for White is J. D. Milks and the attorney listed for Foster is Andrea Mooney.