Opinion filed March 31, 2015




                                     In The


        Eleventh Court of Appeals
                                  __________

                               No. 11-13-00083-CV
                                   __________

 BRENDA MACKEY AS REPRESENTATIVE OF THE ESTATE
       OF VIOLET CHILDS, DECEASED, Appellant
                       V.
   MIDLAND-ODESSA TRANSIT D/B/A EZ RIDER, Appellee

                    On Appeal from the 441st District Court
                           Midland County, Texas
                       Trial Court Cause No. CV48144


                     MEMORANDUM OPINION
      Midland-Odessa Transit (EZ Rider) is a governmental entity that provides
public bus transportation. Brenda Mackey as representative of the Estate of Violet
Childs, deceased, filed a survival action against EZ Rider. This case stems from an
accident that occurred when Childs, Mackey’s sister, was a passenger on an EZ
Rider bus. EZ Rider filed a plea to the jurisdiction, contending that it was immune
from suit and that Appellant had not shown that there was a waiver of
governmental immunity under the Texas Tort Claims Act. EZ Rider’s motion also
included a No-Evidence Motion for Summary Judgment in the alternative. The
trial court granted EZ Rider’s plea to the jurisdiction and dismissed the case. We
affirm.
                                Standard of Review
      The Texas Supreme Court thoroughly explained sovereign immunity and the
distinction between immunity from suit and immunity from liability in Texas
Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004), and
Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692 (Tex. 2003). A plea to the
jurisdiction asserts that the governmental entity is immune from suit because the
court lacks subject-matter jurisdiction. Miranda, 133 S.W.3d at 224; Taylor, 106
S.W.3d at 695–96; Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
Whether a court has subject-matter jurisdiction is a question of law. Miranda, 133
S.W.3d at 226. Therefore, the standard of review of an order granting a plea to the
jurisdiction based on governmental immunity is de novo.           Tex. Natural Res.
Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
      When a plea to the jurisdiction challenges the existence of jurisdictional
facts, the trial court considers relevant evidence submitted by the parties to resolve
the jurisdictional issues raised. An appellate court does the same. A plea to the
jurisdiction should be granted as a matter of law if the relevant evidence is
undisputed or fails to raise a fact question on the jurisdictional issues. Miranda,
133 S.W.3d at 228.
      EZ Rider claimed in its plea to the jurisdiction, and in its alternative motion
for a no-evidence summary judgment, that Appellant failed to present evidence
that demonstrated that Appellant was entitled to a waiver of sovereign immunity
under the Texas Tort Claims Act.
                             The Texas Tort Claims Act
      Sovereign immunity deprives a trial court of subject-matter jurisdiction for
lawsuits against governmental units unless the State consents to that suit.
                                          2
Miranda, 133 S.W.3d at 224. Texas has provided that consent, although narrowly,
in Section 101.021 of the Texas Civil Practice & Remedies Code. Section 101.021
waives sovereign immunity, and the governmental unit may be liable, in a suit for:
            (1) property damage, personal injury, and death proximately
      caused by the wrongful act or omission or the negligence of an
      employee acting within his scope of employment if:
                   (A) the property damage, personal injury, or death
            arises from the operation or use of a motor-driven vehicle
            or motor-driven equipment; and
                  (B) the employee would be personally liable to the
            claimant according to Texas law; and
            (2) personal injury and death so caused by a condition or use of
      tangible personal or real property if the governmental unit would,
      were it a private person, be liable to the claimant according to Texas
      law.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011).
      Appellant alleged that the injuries to Childs were caused by the negligent
operation of a motor-driven bus and by misuse of tangible personal property
because the driver improperly restrained Childs while she was on the bus.
                                Background Facts
      Childs was a heavyset, diabetic woman. As a double amputee who had lost
both legs, she used a three-wheel motorized scooter to move around. Kimberly
Thompson, the driver of the EZ Rider bus, had transported Childs a dozen times
before the time the accident occurred.       Thompson’s deposition was the only
evidence presented about the incident.
      Thompson testified that she was in the left turn lane behind two vehicles
waiting at the light before turning left on Front Street from the Andrews Highway:
      The light turned green for us to turn and I turned -- the two vehicles
      went before me and then I took a left. And whenever I turned, that’s
      when [Childs] called my name, Kim, and she was holding on to the
      pole of the bus because she had tilted over when I turned left.
                                         3
              Q. Did you see her fall over?

              A. She didn’t fall. She tilted over because she grabbed the
      pole.
Thompson said three times that Childs had not fallen. Thompson pulled the bus
over and helped reposition Childs on her scooter. Thompson called the dispatcher
who asked if Childs wanted an ambulance, but Childs replied that she did not need
an ambulance. Thompson then drove Childs to her destination. A day or two later,
Thompson picked up Childs to go to another doctor, and she described Childs as
appearing normal. Childs subsequently died, and Appellant claims that the alleged
injuries on that earlier day led to her death.
      Thompson described how she would put “Q strings” down and fasten them
to the scooter to keep it from moving; the Q strings had a ratcheting mechanism
that automatically tightened to hold the scooter in place. Childs did not wear the
seatbelt attached to the scooter because it was too tight for her. Instead, Thompson
put a seatbelt around Childs that was attached to two Q strings in the back. Childs
tightened the seatbelt; Thompson did not adjust it for her. Childs always refused
the shoulder strap, and Thompson did not put the shoulder strap on her. When
Thompson saw Childs holding on to the pole, her thought was that Childs had not
tightened her seatbelt enough.
      A. There is no evidence to support a waiver of sovereign immunity under
Section 101.021(1).
      Appellant alleged in her petition that the bus operator made “a sudden and
negligent turn.” However, Appellant presented no evidence in support of that
allegation. The record contains no evidence that Thompson did anything wrong in
making the left turn after the light turned green. There is no evidence that Childs’s
personal injury or subsequent death was proximately caused by “the wrongful act
or omission or the negligence” of Thompson in operating the bus. The evidence is
                                            4
undisputed that Childs declined to use the shoulder strap and was solely
responsible for fastening and adjusting the lap belt to her comfort level. Appellant
presented no evidence indicating that Childs’s alleged injuries arose from any
negligent operation or use of the motor-driven bus.1
        For a waiver of sovereign immunity under Section 101.021(1), Appellant
was required to provide evidence that (1) there was a wrongful act or omission or
negligence of an employee acting within the scope of his or her employment,
(2) the personal injury or death arose from the operation or use of a motor-driven
vehicle, and (3) the employee would be personally liable to the claimant under
Texas law. Miranda recognized that, at times, the requirement for a plaintiff
showing jurisdictional facts also implicates the merits of the case. In this case, as
in Miranda, the challenge to the existence of any evidence to show jurisdiction
also implicated both the subject matter of the court and the merits of the case. See
Miranda, 133 S.W.3d at 226. When a plea to the jurisdiction challenges the
existence of jurisdictional facts, an appellate court must consider the relevant
evidence to resolve the jurisdictional issues raised, as the trial court is required to
do. Miranda, 133 S.W.3d at 226–27. We have reviewed the evidence, and it is
insufficient to invoke a waiver of sovereign immunity under Section 101.021(1).
      B. There is no evidence to support a waiver of sovereign immunity under
Section 101.021(2).
        To demonstrate a waiver of immunity under Section 101.021(2), Appellant
had to produce evidence that (1) there was some use or misuse of tangible property
and (2) Childs’s injuries were proximately caused by the use or misuse of that
property.     Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968
        1
         Appellant’s argument appears to be based on res ipsa loquitor: Childs tilted over on a bus driven
by a government employee and Childs was injured; therefore, the trier of fact may infer a breach of duty
(negligent driving) and causation. Res ipsa loquitor is a rule of evidence whereby negligence may be
inferred upon proof of the “type of accident” and “control” factors. See Haddock v. Arnspiger, 793
S.W.2d 948, 950 (Tex. 1990); Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 252 (Tex. 1974). Appellant did
not plead res ipsa loquitor, nor is this a case for that doctrine.
                                                         5
S.W.2d 339, 343 (Tex. 1998); see also Tex. Dep’t of Criminal Justice v. Miller, 51
S.W.3d 583, 588 (Tex. 2001) (distinguishing “use” from “non-use”). Appellant
alleged that EZ Rider misused tangible personal property because Thompson failed
to secure Childs, who was disabled. But Appellant failed to produce evidence that
Thompson used or misused any tangible property.
      Appellant offered the depositions of Thompson and EZ Rider’s
representative, Alonda Massey. Massey discussed EZ Rider’s training manual for
drivers, which described how an employee should secure a motorized scooter to
the floor of the bus and how such restraints as shoulder straps and lap belts should
be used. Thompson acknowledged that she had seen a video during her training
that demonstrated how to place the Q strings to secure the scooter. Appellant does
not contend that Childs’s scooter was not properly fastened to the floor with the
Q strings.
      Appellant argues that Childs was improperly restrained. Thompson said that
she had transported Childs twelve or thirteen times and that Childs did not wear the
seatbelt on the scooter because of the size of her waist; instead, Thompson would
put a lap belt around her that was hooked onto two Q strings in the back. Childs
adjusted the lap belt. Thompson testified that she did not adjust the lap belt.
Thompson also testified that Childs never wanted to use the shoulder strap, and
Thompson did not put the shoulder strap on her that day. Thompson said that she
always asked Childs if she wanted to use the shoulder strap because she was
required to ask the question each time. But Childs would always refuse to use the
shoulder strap.
      The evidence demonstrated that the bus driver was properly trained and
followed the procedures to secure a passenger using a scooter. It is undisputed that
Thompson provided a lap belt and that Childs was the one who adjusted the lap
belt. Appellant was required to show that the use of tangible property was by a
                                         6
government employee, not that the employee simply furnished the property.
San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004); Hardin
Cnty. Sheriff’s Dep’t v. Smith, 290 S.W.3d 550, 553 (Tex. App.—Beaumont 2009,
no pet.).
       Appellant has pointed out that Thompson acknowledged that she transported
Childs without requiring Childs to wear the shoulder strap. Failure to use, or the
non-use of property, does not waive immunity under Section 101.021(2). Miller,
51 S.W.3d at 587–88; Tex. Natural Res. Conservation Comm’n v. White, 46
S.W.3d 864, 869–70 (Tex. 2001); Kerrville State Hosp. v. Clark, 923 S.W.2d 582,
584 (Tex. 1996).
       Appellant’s issue that the trial court erred in granting the plea to the
jurisdiction is overruled.
                                       This Court’s Ruling
       The judgment of the trial court is affirmed.




                                                               TERRY McCALL
                                                               JUSTICE


March 31, 2015
Panel consists of: Wright, C.J.,
Bailey, J., and McCall. 2

Willson, J., not participating.




       2
        Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by
assignment.
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