Estate of Lindburg v. Mount Pleasant Independent School District
746 S.W.2d 257
Tex. App.
1987
Check Treatment

*1 brought action Independent School District and Misty ESTATE OF Dawn LINDBURG, school bus driver Gullion. suit Appellant, brought under the Texas Tort Claims Act, injuries recovery allows MOUNT PLEASANT INDEPENDENT sulting use and SCHOOL DISTRICT and John motor vehicle. Tex.Civ.Prac. & Rem.Code Gullion, Appellees. (Vernon 1986). Ann. Nо. 9553. The estate contends that the trial court failing erred to instruct the Appeals Texas, Court of driver owed a of care instead Texarkana. Misty care to the Dawn Dec. 1987. Lindburg. complains The estate further Rehearing sustaining spe- Denied that the trial court erred in Feb. 1988. exceptions petition,

cial to its first amended grant its motion for leave amendment, admitting ‍​‌​​​​​​​‌‌​‌​​​‌​‌‌​​​‌​​​​​‌​‌​​​​‌​‌‌‌​​‌​​‌​‍file trial and in not deposition defendant driver into evidence.

Misty Lindburg was a seven and one- half-year-old child who was struck and by pickup killed truck getting after off bus on October At the death, time of her she inwas the third grade at Mount Pleasant daily transported School District the school district’s park bus. She lived in trailer on the west Highway side of U.S. 271. There are two park, forty entrances to the trailer about yards apart. driver testified that he stopped at On both entrances. day accident, Misty had exited northbound school with one other student who lived on east side highway. The bus testified that driver Hinton) (Jason he knew nearby lived in a house on east side it, and would not need to cross (the driver) he did but that not know Misty Witnesses testified lived. Misty away walked from bus with- making any high- out effort to cross way. away, The school bus drove she Roberts, Roberts, L. Bruce Randell C. began walking down the east side of the Roberts, Tyler, & Loftis road toward the other entrance the trail- Weber, Russell, Atchley, Waldrop park. Robert Hlavinka, Texarkana, appellees. driver one cars attempted stopped school bus to wave

GRANT, Justice. Misty highway. across the She refused Lindburg time, attempt The estate of Dawn cross at that ‍​‌​​​​​​​‌‌​‌​​​‌​‌‌​​​‌​​​​​‌​‌​​​​‌​‌‌‌​​‌​​‌​‍but did to cross (hereinafter estate”) referred to as “the after the line of which had northbound cars

258 Matthews, had stopped behind the (Tex.Civ.App.- been school passed. Misty was struck a southbound n.r.e.); Houston writ ref’d crossing pickup truck while Lee, Estate 564 392 of driver, party and killed. The not а App.-Dallas writ ref’d case, testified he had come over a that A common carrier is defined as one hit her. hill and did see until he goods transports people place who or find the discrimination, place for hirе without negligent driver had been persons employ such who see fit them. bus, Misty Lindberg but- found McFarland, Mayhew 137 Tex. 153 v. keep proper negligent S.W.2d 428 Commission Railroad lookout. Inc., Service, Texas v. United Parcel of requested following defi- estate (Tex.Civ.App.-Austin 614 903 (which were refused the trial nitions Riter, writ ref’d v. 276 Burnett court): (Tex.Civ.App.-Beaumont S.W. CARE” means “HIGH DEGREE OF writ). The school bus in the case that of care which have would only students the Mount cautious, competent, very been used District, аnd School person same or prudent and under the general for hire to the with similar circumstances. out discrimination. Therefore the “NEGLIGENCE,” re- when used with district did not come within common Gullion, spect to John means failure carrier classification. care; say, use a that is to early Texas cases We have examined the cautious, very failure to that which why high, ordi- to determine person competent, prudent would nary, prescribed for degree of care was or similar have same According to Galveston common carriers. circumstances, doing or that which Hewitt, Tex. 3 S.W. City R. v. Co. cautious, very competent, prudent (1887), haz- arises that person under the would not have done and the ardous character of the business same or similar circumstances. imperiled by it. fact that human life is gave The trial court defini- According and Great to International jury: tions to the Hallaren, 53 Northern Railroad Co. CARE,” “ORDINARY when usеd by reason of passenger, Tex. 46 Gullion, respect to the conduct to this mode naturally the risk inherent would means that travel, to demand that person ordinary prudence be used very cau- degree of care and skill which under the same or similar circumstances. accustomed to. persons generally are tious “NEGLIGENCE,” re- when used with is also high degree of care dutyA of a Gullion, spect to the of John free as well people who ride carе; ordinary means failure to use customers, because of paying say, failure to do that which a Louis gard for life. St. human White person ordinary prudence have Texas, 86 S.W. Ry. Southwestern Co. of or similar circum- done under (Tex.Civ.App.1905, nо G.C. stances, person doing which a McGown, 65 Tex. Ry. S.F. prudence have done would not similar under the jurisdictions for the rea Looking argues estate the exercise sons considered a common carrier, we by a degree of care common such, it would has its foundation find the Dallas v. care.1 almost the carrier assumes the fact that Houston 1964) statu- common law art. 882 Tex.Rev.Civ.Stat.Ann. torily otherwise. provides declared of carriers are the body dry absolute control of the and the Indemnity move v. Travelers 155 So.2d passenger, (La.Ct.App.1963); ments of Sepulvado the further Gener fact that commits himself al & Casualty Fire 146 So.2d 428 Seattle, (La.Ct.App.1962); watchfulness the carrier’s servants. v. City Webb Hensley, N.R. Co. Louisville & 7 Tenn. Wash.2d 157 P.2d 312 Ct.App. (as cited in C.J.S. Carriers ‍​‌​​​​​​​‌‌​‌​​​‌​‌‌​​​‌​​​​​‌​‌​​​​‌​‌‌‌​​‌​​‌​‍No. Thur Leach v. 322 of *3 (1939). given n. County, Another reason ston 197 Wash. 85 P.2d § for applying the to passenger Lempke 253 Wis. Cummings, passenger (1948). carriers is the does not have 34 N.W.2d 673 opportunity protect the same to as himsеlf the policy We have examined reasons in other situations where rule of the ordi requiring high degree a care a com- nary applied, public policy care is carrier, mon no why and we find reason the safety require that carriers be held to the opera- policy apply should not to the greatest diligence care and in order that riding tion of a A school bus. child a personal safety passengers the is not should entitled to be the left to chance to the of care degree of care as that exercised the agents. Phillips Hardgrove, less passenger benefit a common carri- Wash. 296 P. 559 er.2 A not in position school child is a to We negotiate have not found Texas containing cases that a contract stan- the prescribe a private required standard of care for care the dard of special passenger carriers and may carriers not a driver. child not have falling the within common carrier transportation classifi choice as to the mode of to school, law, cation. find that We the Texas courts have and from the the under duty high extended to degree may the exercise a to be attend school until of care transport passen to carriers that age the ‍​‌​​​​​​​‌‌​‌​​​‌​‌‌​​​‌​​​​​‌​‌​​​​‌​‌‌‌​​‌​​‌​‍child has reached the of sixteen. gers without carrier fall the Tex.Educ.Code Ann. 21.032 strictly 1987). within common carrier Thе defini mere fact the school bus is example, high degree tion. For transportation pub- of care as available applied standard has general, to elevators and lic in but is limited to students Co., district, escalators. Brewer v. a Otis Elevator is not reason for treat- 422 S.W.2d (Tex.Civ.App.-Houston ing passengers differently those [1st ref’d passengers writ Mattox v. on a common carrier. Dist.] Co., (Tex. C.R. Anthony 326 S.W.2d 740 Supreme Court in The Civ.App.-Beaumont 1959, d v. Jackson said: Dallas pаssen- ques company, The states are A a divided carrier of gers, tion of the standard a under such a of care owed to is exercise foresight student passenger high possible who is a school as to bus. high degree pru- dangers number of states and such have held that those engaged transportation guarding them as dence cautious, prudent and by very children should be held used man the same or similar competent care. Van Coach Cleave Mini Ill.App. 100 N.E.2d 398 Lan- reason, things, Supreme

2. The Court in is no nature of United States the case There upon Indianapolis why and St. not be as safe Louis Railroad should Horst, (3 Otto) 291, proper vigilence 93 U.S. L.Ed. the other. With one as carrier, passen- determined that of care should part standard he is so. of the applied either, passenger accompanying authority upon ger as to no freight cattle on a court train. The stated: personal care of himself.... use it. The standard have no choice but to But, upon principle, why not the law consequences according should be be valuable, so in this case? and limb are Life may carelessness. ensue from safety, and there is the same Although this not contrаst a common case did palace caboose car.... trains; private rea- versus a the same freight carrier apply considerations applicable. dangers soning the same is are common both.... 450 S.W.2d 62 this ever Dallas contention was rendered trial court. greater encompasses This Special exceptions which are not called to anticipate of a young upon attention of the court or doing so tо protect child and them from that the record ‍​‌​​​​​​​‌‌​‌​​​‌​‌‌​​​‌​​​​​‌​‌​​​​‌​‌‌‌​​‌​​‌​‍does show Especially harm. trial court acted are waived. Saikowski v. children, a school Manning, (Tex.App. — Fort many years, it appropriate of tender Repair Wоrth Elliot Valve require we the exercise of a Fitting v. B.J. Valve & in protecting the children from harm. 1984), rev’d (Tex.App. — Houston case, of the circumstances on other find that the failure trial court Sugar Valley Growers Rio Grande instruct on а of care is Campesi, 580 S.W.2d *4 reversible error. Christi), Corpus rev’d of our on this determination is- Rothchild sue, points not do address the other Bank, 407 Fannin error raised 1966, writ ref’d App. — Texarkana has been nothing point on this Accordingly, judgment court is trial preserved review this Court. for a versed and the case remanded new will be distinguish some of appellees seek consider the conduct the school bus driv- jurisdictions cited the cases from other having terms of original opinion our basis of care. by the bus operated were buses dis- with the school owners who contracted ON MOTION FOR REHEARING by the being owned tricts Appellee rehearing has on motion for children, who school districts. appeal raised first timе for the con- buses, basically are passengers on not tention that the school district is an whether situation suit, appropriate party for because or contracts the buses district owns sovereign immunity. doctrine services. We for their another now controlling toas deem this distinction argues that this is not a situation which passengers. owed govern- limited falls within the waiver motion Appellees on the also contend immunity mental rehearing duly was owed that no & Rem. Tort Claims Act. Tex.Civ.Prac. alighted safely the child because Code Ann. longer a conveyance Supp.1988). As the injury. time passenger at the first of error raised for the time Points Transit Co. court stated in Houston rehearing may motiоn for McQuade, this Court. It has been considered d), “By law Galveston exception to this rule exists that an discharge carriers are under argu- appellee when an fails to advance an (reasonably) safe into a their brief, he is reply ment in his at- place....” Whether preserve judgment of a tempting to question of fact is a present case lower Bank court. Chesshir v. First State jury. Morton, Tex., 620 rehearing is denied. The motion case, however, appellant In to'preserve for our error below sovereign argument review. The immu-

nity special exception and as was raised below, but

an affirmative defense ruling

record reflect does not