                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-18-00027-CV

BRAZOS TRANSIT DISTRICT,
                                                            Appellant
v.

TWILA PHILLIPS,
                                                            Appellee



                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 16-002093-CV-272


                          MEMORANDUM OPINION

       Appellee Twila Phillips was injured when a bus operated by Appellant Brazos

Transit District ran over her legs. Phillips filed suit against the District under the Tort

Claims Act. The District filed a combined plea to the jurisdiction, no-evidence summary

judgment motion, and traditional summary judgment motion raising the issue of

sovereign immunity. The trial court partially granted the District’s motion and dismissed

all of Phillips’ claims except one—whether the bus driver, a District employee, was
negligent in failing to keep a proper lookout. The District appeals the trial court’s order

asserting that its motion should have been granted in its entirety. We will affirm.

                                       Background

        The undisputed evidence in the record reflects that Phillips was a passenger on a

bus operated by the District on November 5, 2014. It was a rainy day, and the streets

were wet. Phillips exited the bus, but then remembered that she had left her umbrella on

the bus. Phillips turned and began knocking on the bus door to get the driver’s attention.

The bus, however, pulled away. While Phillips continued to bang on the side of the bus,

she fell and the right rear wheel of the bus rolled over both of her legs. Phillips was

transported to the hospital for treatment.

                                   Standard of Review

        A. Immunity. Governmental units are immune from suit unless the state consents.

Alamo Heights Ind. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). In the Tort Claims

Act, the Legislature has expressly waived the state’s immunity in limited circumstances,

including when an injury is caused by the negligent operation or use of a public-owned,

motor-driven vehicle by a government employee acting within the scope of his

employment. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1) (West 2011); see also City

of Balch Springs v. Austin, 315 S.W.3d 219, 224 (Tex. App.—Dallas 2010, no pet.). In such

a circumstance, the governmental entity is liable if an individual’s injuries are the result

of the negligence of an employee acting within the scope of his employment and the

employee would be personally liable for that injury under Texas law. TEX. CIV. PRAC. &

REM. CODE ANN. § 101.021(1).

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        It is undisputed that the District is a governmental entity. The issue in this case is

whether the bus driver, Michael Raymond Willey, violated a duty of care owed to Phillips

thereby proximately causing her injuries. The parties conducted discovery, including

deposing both Phillips and Willey. The District included Phillips’ deposition as an

attachment to its Plea to the Jurisdiction, or Alternatively, Motion for Summary

Judgment. Phillips included her own deposition and Willey’s deposition as attachments

to her response to the District’s motion. Immunity from suit may be raised through a

plea to the jurisdiction or other procedural vehicle, such as a motion for summary

judgment. Alamo Heights, 544 S.W.3d at 770. As noted, the District asserted immunity

through a combined plea to the jurisdiction and motion for summary judgment.

        B. Plea to the Jurisdiction. Sovereign immunity from suit implicates a trial court’s

subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. See

Engelman Irrigation District v. Shields Brothers, Inc., 514 S.W.3d 746, 751 (Tex. 2017).

Whether a court has subject matter jurisdiction is a question of law, and we review a trial

court’s ruling on a plea to the jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex. 2004). When a plea to the jurisdiction challenges the existence

of jurisdictional facts, the trial court considers any relevant evidence submitted by the

parties when necessary to resolve the jurisdictional issues raised. Id. at 227; see also Tex.

Southern Univ. v. Mouton, 541 S.W.3d 908, 912-13 (Tex. App.—Houston [14th Dist.] 2018,

no pet.). If the evidence creates a fact question regarding jurisdiction, then the trial court

must deny the plea, and the fact issue will be resolved by the factfinder. Miranda, 133

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S.W.3d at 227-28. In such cases, the summary judgment standard found in Rule 166a(c)

of the Rules of Civil Procedure is applicable. See Sampson v. Univ. of Tex. at Austin, 500

S.W.3d 380, 384 (Tex. 2016) (“[I]f the plaintiffs’ factual allegations are challenged with

supporting evidence necessary to consideration of the plea to the jurisdiction, to avoid

dismissal plaintiffs must raise at least a genuine issue of material fact to overcome the

challenge to the trial court’s subject matter jurisdiction.”).

         C. No-Evidence Summary Judgment. We review de novo a trial court’s ruling on

a summary judgment motion. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289

S.W.3d 844, 848 (Tex. 2009). When a party moves for both traditional and no-evidence

summary judgment on the same ground, we first review the trial court’s ruling under the

no-evidence standard of review. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.

2004).

         A no-evidence motion for summary judgment is essentially a motion for pretrial

directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006); see

also Humphrey v. Pelican Isle Owners Ass'n, 238 S.W.3d 811, 813 (Tex. App.—Waco 2007,

no pet.). Once such a motion is filed, the burden shifts to the nonmoving party to present

evidence raising an issue of material fact as to the elements specified in the

motion. Tamez, 206 S.W.3d at 583. The nonmovant must produce “summary judgment

evidence raising a genuine issue of material fact.” TEX. R. CIV. P. 166a(i). When

determining if more than a scintilla of evidence has been produced, the evidence must be

viewed in the light most favorable to the nonmovant. Ford Motor Co., 135 S.W.3d at 601.


Brazos Transit v. Phillips                                                          Page 4
        The party moving for summary judgment bears the burden of proof. Roskey
        v. Tex. Health Facilities Comm'n, 639 S.W.2d 302, 303 (Tex. 1982). Though
        these burdens vary for traditional and no-evidence motions, the summary
        judgment motion here was a hybrid motion and, as noted, both parties
        brought forth summary judgment evidence; therefore, the differing
        burdens are immaterial and the ultimate issue is whether a fact issue
        exists. Buck v. Palmer, 381 S.W.3d 525, 527 & n. 2 (Tex. 2012). A fact issue
        exists if there is more than a scintilla of probative evidence. See id. at
        527; TEX. R. CIV. P. 166a(c), (i).

Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013).

        D.    Traditional Summary Judgment.         In reviewing a traditional summary

judgment, we must consider whether reasonable and fair-minded jurors could differ in

their conclusions in light of all of the evidence presented. See Goodyear Tire & Rubber Co.

v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). The movant carries the burden of establishing

that no material fact issue exists and that it is entitled to judgment as a matter of law. TEX.

R. CIV. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.

2000). The nonmovant has no burden to respond to a summary-judgment motion unless

the movant conclusively establishes its cause of action or defense. M.D. Anderson Hosp.

& Tumor Inst., 28 S.W.3d at 23.         Once the movant produces sufficient evidence

conclusively establishing its right to summary judgment, the burden shifts to the

nonmovant to present evidence sufficient to raise a fact issue. Centeq Realty, Inc. v. Siegler,

899 S.W.2d 195, 197 (Tex. 1995). In reviewing a traditional summary judgment, we must

consider all the evidence in the light most favorable to the nonmovant, indulging every




Brazos Transit v. Phillips                                                               Page 5
reasonable inference in favor of the nonmovant and resolving any doubts against the

motion. See Goodyear Tire & Rubber Co., 236 S.W.3d at 756.

                                 Negligence Cause of Action

        In order to establish a negligence cause of action, a plaintiff must establish “a duty,

a breach of that duty, and damages proximately caused by the breach.” Kroger Co. v.

Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam); see also Western Invs., Inc. v. Urena,

162 S.W.3d 547, 550 (Tex. 2005). In four issues, the District asserts that Phillips has failed

to establish the breach of any duty of care owed to Phillips and that the breach of any

duty, if one exists, proximately caused her injuries.

        “A driver has a general duty to exercise the ordinary care a reasonably prudent

person would exercise under the same circumstances to avoid a foreseeable risk of harm

to others.” Ciguero v. Lara, 455 S.W.3d 744, 748 (Tex. App.—El Paso 2015, no pet.).

Additionally, drivers have a general duty to keep a proper lookout. Id.; Montes v.

Pendergrass, 61 S.W.3d 505, 509 (Tex. App.—San Antonio 2001, no pet.).

        “[A] proper lookout encompasses the duty to observe, in a careful and
        intelligent manner, traffic and the general situation in the vicinity,
        including speed and proximity of other vehicles as well as rules of the road
        and common experience.” Carney v. Roberts Inv. Co., 837 S.W.2d 206, 211
        (Tex. App.—Tyler 1992, writ denied); see also Gomez [v. Adame], 940 S.W.2d
        [249] at 251 [Tex. App.—San Antonio 1997, no writ)]; Lopez [v. City Towing
        Assocs., Inc.], 754 S.W.2d [254] at 263 [Tex. App.—San Antonio 1988, writ
        denied)]. Proper lookout requires the motorist “to see what a person in the
        exercise of ordinary care and caution for the safety of herself and others
        would have seen under like circumstances” and to take “such steps to
        guard against accidents which the conditions observed by her would
        necessarily indicate to be necessary.” Lopez, 754 S.W.2d at 263. “Although
        not required to anticipate negligent or unlawful conduct on the part of
        others, [a motorist] is not entitled to close her eyes to that which [is] plainly
        visible and which would have been observed by a person of ordinary

Brazos Transit v. Phillips                                                                  Page 6
        prudence similarly situated.” Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d
        273] at 275 [(Tex. 1958)].

Montes, 61 S.W.3d at 509.

        Whether viewed in the light of a plea to the jurisdiction, a traditional motion for

summary judgment, or a no-evidence motion for summary judgment, Phillips has

presented more than a scintilla of evidence that Willey failed to keep a proper lookout.

See Ford Motor Co., 135 S.W.3d at 600 (more than a scintilla exists when evidence “rises to

a level that would enable reasonable and fair-minded people to differ in their

conclusions.”). Phillips testified that Willey looked at her as she was knocking on the

side of the bus and that he drove off. She also testified at one point that the bus knocked

her down when it drove away. This is directly contrary to the deposition testimony of

Willey who denied seeing Phillips after she left the bus. Taking Phillips’ testimony and

all inferences as true, there is a factual dispute over whether Willey failed to keep a proper

lookout.

        The next issue is whether Willey’s actions were a proximate cause of Phillips’

injuries.    The components of proximate cause are cause-in-fact and foreseeability.

Williams v. Parker, 472 S.W.3d 467, 470 (Tex. App.—Waco 2015, no pet.). “The failure to

keep a proper lookout can be a proximate cause of an accident where the motorist should

have seen something in time to have avoided the accident by evasive action and but for

such failure the collision could have been avoided.” Ciguero, 455 S.W.3d at 748 (quoting

Montes, 61 S.W.3d at 510).      Whether viewed under the standard of a plea to the

jurisdiction, a no-evidence motion for summary judgment, or a traditional motion for


Brazos Transit v. Phillips                                                              Page 7
summary judgment, Phillips’ testimony and the inferences to be drawn from it constitute

more than a scintilla of evidence that if Willey failed to keep a proper lookout, it was a

proximate cause of Phillips’ injuries. The trial court did not err, therefore, in denying the

District’s motion as there are fact issues presented that preclude finding the District

immune from liability as a matter of law.

        Having determined that all of the District’s issues are without merit, we affirm the

trial court’s order denying the District’s combined plea to the jurisdiction, no-evidence

summary judgment motion, and traditional summary judgment motion. We remand the

case for further proceedings not inconsistent with this opinion.




                                                  REX D. DAVIS
                                                  Justice

Before Chief Justice Gray,
        Justice Davis, and
        Justice Scoggins
        (Chief Justice Gray concurs in the judgment of the Court to the extent it affirms
the trial court’s order. A separate opinion will not issue.)
Affirmed and remanded
Opinion delivered and filed December 5, 2018
[CV06]




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