                                         In The

                                  Court of Appeals
                      Ninth District of Texas at Beaumont
                             ____________________
                                 NO. 09-17-00045-CV
                             ____________________

 NATHAN DELAMETER AND TRACY DELAMETER, INDIVIDUALLY
 AND AS REPRESENTATIVE OF THE ESTATE OF IAN DELAMETER,
                       Appellants

                                            V.

        BEAUMONT INDEPENDENT SCHOOL DISTRICT, Appellee
_______________________________________________________                 ______________

                     On Appeal from the 172nd District Court
                            Jefferson County, Texas
                           Trial Cause No. E-197,589
________________________________________________________                 _____________

                            MEMORANDUM OPINION

       In this appeal, we are asked to review the trial court’s order dismissing the

suit that Nathan and Tracy Delameter filed against the Beaumont Independent

School District (District) for lack of jurisdiction. After the Delameters filed the suit,

the District filed a plea to the jurisdiction and challenged the trial court’s jurisdiction

over the Delamters’ claims, which alleged that the District’s acts and omissions had

caused their son’s death. In its plea, the District asserted that it was immune from

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the Delameters’ suit because their claims did not arise from the District’s use or

operation of the bus that had been used to take Ian, the Delameters’ son, to school.

Following a hearing on the plea, the trial court dismissed the Delameters’ suit for

lack of jurisdiction. Because we agree with the trial court’s conclusion that the

Delameters failed to prove during the hearing on the District’s plea that Ian was

injured by the District’s use or operation of its bus, we affirm the trial court’s order

dismissing their suit.

                                         Background

      Ian began attending school in the District when he was three years old.

Because Ian was disabled, he received therapy in school. Generally, the District

picked Ian up on a bus that the District used to pick up other disabled students.

Because Ian had little control over the trunk of his body, he remained in his wheel

chair when he was on the bus. The bus the District used to pick Ian up had both a

driver and an attendant. After Ian’s chair was placed on the bus, it was locked in

place. The duties of the District’s employees required them to lift Ian’s chair onto

the bus, to lock the chair in place after it was positioned inside the bus, and to monitor

Ian’s condition on the way to school.

      On December 8, 2014, Ian became unresponsive while on his way to school

and travelling as a passenger in the bus. When the bus driver and attendant noticed

                                            2
that Ian was in distress, they stopped the bus and did not use the bus to take Ian to a

nearby emergency room. After he stopped, the bus driver called the District and then

waited for an ambulance to come to the bus. Neither the bus driver nor the attendant

attempted to resuscitate Ian while they waited for the ambulance. The evidence

presented in the hearing established that the decisions to stop the bus and to wait for

an ambulance were decisions that were consistent with the procedures the District

followed in handling students on buses who develop conditions that require medical

treatment while traveling on busses being operated by the District. Approximately

one hour after Ian got onto the bus, he died.

      In September 2015, the Delameters brought a wrongful death and survival suit

against the District, alleging that the District should be held responsible for Ian’s

death. In April 2016, the Delameters amended their petition, alleging (1) that the bus

driver negligently drove the bus in a manner “so as to cause Ian to be thrown around

in his wheelchair[;]” (2) that the negligent operation of the bus included “the driver’s

unsafe speed, turning and disregard for curbs, bumps and stops given the type and

nature of students that were being transported[;]” (3) that the District employees

operating the bus failed to use available cameras, mirrors and other devices to

properly observe, monitor, and protect Ian during the trip; and (4) that the locks on




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the support chair and the restraints that were used to keep Ian in his chair were in

and used in “an unsafe and negligent condition and manner.”

       The District filed a plea to the jurisdiction in response to the suit. The District

did not attach any evidence to its plea; instead, the plea states that for the purposes

of the plea, the District “accept[ed] as true the facts alleged in Plaintiffs’ Original

Petition, and now moves for summary judgment based on its general immunity from

all tort claims.” When the Delameters responded to the District’s plea, they asserted

that “Ian’s death resulted from the negligent use of the [bus].” The Delameters

included evidence with their response, which consists of the affidavit of Nathan

Delameter and an email from one of the District’s nurses. Nathan’s affidavit states

that he reviewed a video-recording from the bus taken the morning that Ian died.

According to Nathan, the recording “demonstrates that Ian slid in his chair due to

the bus ride.” The email from the school nurse indicates that on the day Ian died, she

spoke to a student who rode the same bus, and that the student said that the restraint

that ran across Ian’s chest might have been too tight.

       Subsequently, the Delameters supplemented their response with additional

evidence. They attached to their supplemental response a copy of a deposition that

the parties obtained in discovery from Clint Finnell, the driver of Ian’s bus. Finnell

testified in his deposition that he had just finished using a lift to assist another student

                                             4
enter the bus when he noticed that Ian was in his wheelchair, slumped over, with his

head down. Finnell also explained in his deposition that wheelchairs are positioned

on the bus and then locked into position. He explained that the straps that are used

to hold the students in their chairs are not adjusted by the District’s employees.

According to Finnell, after he noticed that Ian was unresponsive, he called the

District office. In response to his phone call, the District sent an ambulance to the

bus, which Finnell had stopped in front of the house of the student that he was

loading on the bus when he noticed Ian slumped over in his chair. Finnell testified

that it took less than three minutes for the ambulance to arrive. He also estimated

that taking Ian to a nearby hospital would have also taken approximately three

minutes, but that taking a student to the hospital on the bus would have violated the

District’s policies. During his deposition, Finnell viewed the video-recording that a

camera on the bus had captured of Ian’s final trip to school. After reviewing the

recording, Finnell agreed that the ambulance arrived at the location where the bus

was stopped approximately ten minutes after he noticed that Ian was slumped over

in his chair. Finnell stated that Ian became distressed while the bus was being used,

and he agreed that he would have used the bus to take Ian to the hospital had the

District’s rules allowed him to do so. Finnell denied that the route he was driving on




                                          5
December 8 was bumpy, but he acknowledged that the route that he took required

him to drive the bus across some railroad tracks.

      The trial court conducted a hearing on the District’s plea in April 2016. In the

hearing, the parties did not give the trial court any additional evidence to consider

before issuing a ruling on the District’s plea. After the parties presented argument,

the trial court advised that it would consider the matter in chambers before issuing a

ruling. Several months later, the trial court granted the District’s plea.

                                     Standard of Review

      A plea to the jurisdiction is filed to challenge the trial court’s power to exercise

subject-matter jurisdiction over the claims in a lawsuit. A plea to the jurisdiction is

a plea that seeks to bar the plaintiffs from court without regard to whether the

plaintiff’s claims have any merit. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d

547, 554 (Tex. 2000). Whether a trial court can exercise subject-matter jurisdiction

over a party’s claim is a matter requiring the court to resolve a question of law;

therefore, on appeal, the trial court’s ruling is reviewed using a de novo standard.

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

      When, as here, a plea to the jurisdiction is used to challenge the sufficiency of

the plaintiffs’ pleadings, we are first required to determine whether the plaintiffs’

pleadings allege “facts that affirmatively demonstrate the court’s jurisdiction to hear

                                           6
the cause.” Id. When examining the allegations in the plaintiffs’ petition, we

construe the allegations in the petition in the plaintiffs’ favor, and we look to the

plaintiffs’ intent. Id. If a court determines that the pleadings are deficient, but it also

determines that the deficiency is capable of being cured, the plaintiffs should be

given a reasonable opportunity to amend their pleadings. See Tex. A & M Univ. Sys.

v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007); Miranda, 133 S.W.3d at 226-27;

Cty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). On the other hand, if

the pleadings affirmatively show that jurisdiction does not exist, the trial court is

entitled to grant the plea without allowing the plaintiffs to have an opportunity to

amend. See Brown, 80 S.W.3d at 555.

      In this case, the Delameters alleged that section 101.051 in conjunction with

section 101.021 of the Tort Claims Act provided a waiver for the claims they filed

against the District. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, 101.051

(West 2011). The District’s plea alleged that the “mere fact that Ian’s seizure or

breathing problems occurred on or around a school bus is insufficient as a matter of

law to waive the District’s immunity.” In response to the District’s plea, the

Delameters gave the trial court various items of evidence described earlier, which

the trial court relied on in ruling on the District’s plea. On appeal, the Delameters




                                            7
argue that the evidence they provided to the trial court supports their claim that the

District’s use of the bus proximately caused Ian’s injury and his death.

      When the parties provide a trial court with evidence to consider in deciding a

plea to jurisdiction, and the record shows the trial court considered the evidence, we

are also required to review the evidence in the appeal to determine if the evidence

supports the ruling the trial court made on a plea. See Miranda, 133 S.W.3d at 227.

      In considering whether immunity has been waived, “we consider the facts

alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the

evidence submitted by the parties.” Tex. Nat. Res. Conservation Comm’n v. White,

46 S.W.3d 864, 868 (Tex. 2001). In our review, “[w]e take as true all evidence

favorable to the nonmovant, indulge every reasonable inference, and resolve any

doubts in the nonmovant’s favor.” Suarez v. City of Tex. City, 465 S.W.3d 623, 633

(Tex. 2015). “If the evidence creates a fact question regarding the jurisdictional

issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue

will be resolved by the fact finder.” Miranda, 133 S.W.3d at 227-28. “However, if

the relevant evidence is undisputed or fails to raise a fact question on the

jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of

law.” Id. at 228.




                                            8
      With respect to school districts, the waiver the Legislature provided under the

Act is limited to injuries that arise from the operation or use of motor vehicles. See

Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, 101.051. The vehicle-use

requirement that restricts the waiver that the Legislature provided under the Act is

strictly applied. See Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922,

927 (Tex. 2015). The Texas Supreme Court has explained that the “arises from”

requirement in the Act “requires a nexus between the injury negligently caused by a

governmental employee and the operation or use of a motor-driven vehicle or piece

of equipment.” LeLeaux v. Hamshire–Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51

(Tex. 1992). In other words, the use of the motor vehicle must be shown to have

actually caused the victim’s injury for the waiver that is provided under the Act to

apply. White, 46 S.W.3d at 869. Therefore, an injury that arises from a non-use of a

bus is insufficient to establish that the operation of the bus proximately caused an

injury for the purposes of the waiver provided in section 101.021 of the Act. Id. at

869-70.

                                          Analysis

      Relying on sections 101.021 and 101.051 of the Texas Civil Practice and

Remedies Code, the Delameters alleged the trial court could exercise jurisdiction

over the wrongful death and survival claims they filed against the District. See

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generally Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, 101.051. On appeal, they

argue that their pleadings and evidence established that the District operated the bus

in a manner that caused Ian to be thrown around in his wheelchair and injured while

riding the bus to school. According to the Delameters, the bus’s movement

eventually caused the restraints to tighten around Ian and caused him to lose

consciousness. The Delameters also argue that stopping the school bus and waiting

for an ambulance when Finnell could have instead driven the bus to a nearby hospital

involved the use or the operation by the District of its bus.

      A school district’s immunity is waived only for claims for personal injuries

that are proximately caused by the negligent use or operation of a motor-driven

vehicle or motor-driven equipment. See generally id. With respect to school districts,

the scope of the waiver in the Tort Claims Act does not extend to the use of other

types of tangible property owned or controlled by the District. Id. Thus, the

Delameters’ allegations regarding the District’s negligent use of the harness that

were on Ian’s wheelchair involve matters that relate to the use of tangible personal

property. See id. § 101.021(2). Because the waiver of immunity that applies to school

districts is limited to injuries or deaths arising from the use or operation of a motor-

driven vehicle and does not extend more generally to tangible personal property, we

agree with the trial court that claims that arise from the allegedly negligent use of

                                          10
the straps on Ian’s chair fall outside the scope of the waiver found in section 101.051

of the Act. See id. § 101.051 (providing that except as to motor vehicles, the Act

does not apply to a school district).

      To establish that the waiver in section 101.051 of the Act applied, the evidence

the Delameters presented in the hearing was required to show that the District

operated the bus negligently and that the District’s negligent operation of its bus had

proximately caused Ian’s injury or his death. See Montoya v. Houston Indep. Sch.

Dist., 177 S.W.3d 332, 337 (Tex. App.—Houston [1st Dist.] 2005, no pet.). To

support their claim that the District’s use or operation of the bus caused Ian’s injury

and resulting death, the Delameters relied in part on Nathan’s affidavit, which states

that the video-recording of Ian’s final trip showed the bus making constant stops in

the course of a bumpy ride. However, Nathan’s affidavit amounts to no evidence

showing that Finnell negligently operated the bus, or that the bumpiness of the ride

caused Ian to be injured, or that the bumpiness of the ride caused Ian’s death. For

instance, Nathan’s description of the trip does not show that Finnell drove the bus at

an unsafe speed or that he engaged in any unsafe maneuvers. Even though Nathan’s

affidavit suggests that Ian’s harness required adjustment, this statement amounts to

no evidence to show that the harness injured Ian or caused his death. See Tex. Civ.

Prac. & Rem. Code Ann. § 101.021(1). Likewise, the nurse’s email suggesting that

                                          11
one of the children on the bus with Ian thought that his harness might have been too

tight fails to create a fact issue on whether Finnell negligently drove the bus or that

Ian was injured or killed by the strap used to restrain him in his chair.

      While the Delameters also alleged that Finnell and the attendant traveling on

the bus failed to use cameras, mirrors, and other devices to monitor and protect Ian

during the trip, these are claims that allege negligent supervision. In Dallas Area

Rapid Transit v. Whitley, the Texas Supreme Court determined that negligent

supervision is conduct that is unrelated to the use or operation of a bus. 104 S.W.3d

540, 543 (Tex. 2003) (“[The plaintiff’s] injuries arose from the bus driver’s failure

to supervise the public, which is insufficient to waive immunity under the Tort

Claims Act.”). Additionally, the Delameters argue that Finnell negligently operated

the bus by stopping the bus in an unsafe location. They compare the facts in this case

to Dallas Area Rapid Transit v. Willis, 163 S.W.3d 814, 817 (Tex. App.—Dallas

2005, pet. denied), a case in which the bus driver stopped the bus so that passengers

were required to exit the bus too far from the curb. After the bus stopped, a passenger

exiting the bus was injured when she attempted to make the long step required to

reach the curb. Id. The Dallas Court of Appeals affirmed the trial court’s ruling

denying the transit authority’s plea based on the passenger’s allegation that the bus

driver stopped the bus in a way that caused the passenger’s injury. Id.

                                          12
      In this case, Ian was not injured while getting off the bus. Instead, the

Delameters’ claims allege that Finnell should have used the bus to take Ian to the

hospital and the District’s policies should not have prevented Finnell from using the

bus for that purpose. However, these claims concern the non-use of the bus, and

unlike Willis, do not concern a negligent decision to stop the bus in an improper

location. Id. Regardless of whether these claims have merit, they concern the non-

use of the District’s bus. As such, they fall outside the limited waiver of immunity

that the Legislature provided under the Act for school districts. See Tex. Civ. Prac.

& Rem. Code Ann. § 101.021(1)(A) (providing that a governmental unit is liable for

personal injury or death that arises from the operation or use of a motor-driven

vehicle) (emphasis added); id. § 101.051 (with respect to school districts, limiting

the Act to accidents arising from the use of motor vehicles); see also Brantley v. City

of Dallas, 545 S.W.2d 284, 287 (Tex. Civ. App.—Amarillo 1976, writ ref’d n.r.e.)

(noting that “an allegation that injuries resulted because a technician refused to

transport plaintiff in an ambulance is not equivalent to an allegation that plaintiff’s

injuries were proximately caused by negligence arising from the use or operation of

a motor vehicle”). Similarly, the Delameters’ claim that the District employees on

the bus negligently failed to attempt to resuscitate Ian is another claim that the trial

court properly concluded was unrelated to the District’s operation or use of its bus.

                                          13
Consequently, the trial court also properly dismissed that claim because it is also

outside the limited waiver provided under the Act. See Tex. Civ. Prac. & Rem. Code

Ann. § 101.051; LeLeaux, 835 S.W.2d at 52 (explaining why a student’s injury on a

bus was not caused by the use or operation of the bus where the bus was not in

operation when the student’s injury occurred).

      Based on our de novo review of the pleadings and the evidence that was before

the trial court when it ruled on the District’s plea, we conclude the Delameters failed

to establish that a valid waiver of immunity existed under the Act for the wrongful

death and survival claims that they filed against the District. See LeLeaux, 835

S.W.2d at 52 (“When an injury occurs on a school bus but does not arise out of the

use or operation of the bus, and the bus is only the setting for the injury, immunity

for liability is not waived.”); Hopkins v. Spring Indep. Sch. Dist., 736 S.W.2d 617,

619 (Tex. 1987) (school district immune from suit that was based on claim that the

district failed to provide adequate medical care to a student with cerebral palsy who

suffered convulsions while on the district’s bus). Using the common and ordinary

meaning of the words “operation” and “use,” we hold the trial court ruled properly

on the District’s plea. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021(1)(A),

101.051. Issues one and two are overruled, and the trial court’s judgment is affirmed.




                                          14
      AFFIRMED.


                                              ________________________________
                                                      HOLLIS HORTON
                                                           Justice



Submitted on November 15, 2017
Opinion Delivered February 1, 2018

Before Kreger, Horton and Johnson, JJ.




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