Buses are common carriers. If you are injured in a bus crash, you should be aware that usually their duty is higher to passengers than drivers of other vehicles. Although the duty is higher, liability is not automatic. In Mackey v. Midland-Odessa Transit, the defendant was a governmental entity that operated a public bus. The plaintiff was a representative of her sister’s estate. Her sister had died while a passenger on one of the defendant’s public buses.
In a plea to the jurisdiction, the defendant argued that it was immune from suit and that the plaintiff hadn’t shown that governmental immunity had been waived under the Texas Tort Claims Act. A plea to the jurisdiction is an assertion of immunity from suit due to the court’s lack of jurisdiction. The trial court granted the plea to the jurisdiction and dismissed the case.
The appellate court explained that sovereign immunity deprives a trial court of jurisdiction for lawsuits against governmental units unless there is consent to the suit. It found that the state had provided consent to be sued through Section 101.021 of the Texas Civil Practice & Remedies Code, which allows a governmental entity to be liable in a suit for personal injury or death proximately caused by an employee’s negligence in the scope of employment when the negligence arises from use of a motor-driven vehicle, the employee would be personally liable, and personal injury or death would, if the government were a private person, result in liability under Texas law.
The decedent was heavy and diabetic. She had lost both her legs and used a three-wheel motorized scooter for transportation. The bus driver had transported her a number of times before the accident.
At deposition, the driver testified she was in a left turn lane and turned left and then heard the decedent calling her name because she had tilted during the left turn. She said the decedent didn’t fall due to strings that were fastened to the scooter, but she pulled over and helped reposition the woman on the scooter. The driver thought the woman hadn’t tightened her seatbelt sufficiently. The woman said she didn’t need an ambulance. A day or two later, she picked up the woman to see another doctor and described her as looking normal. However, the woman died, and her sister claimed that the injuries on the bus led to her death.
The plaintiff argued that the bus driver made a sudden, negligent turn without presenting evidence in support of that. The court explained that the evidence presented included no evidence of negligence in the turn or that the personal injury was proximately caused by a wrongful act or omission. Instead, there was undisputed evidence that the woman decided not to use the shoulder strap and was solely responsible for adjusting the lap belt so that she was comfortable.
To show a waiver of immunity under Section 101.021(2), the plaintiff had to show: (1) there was a use or misuse of tangible property, and (2) it proximately caused the decedent’s injuries. The plaintiff alleged that there was a misuse of tangible personal property in the bus driver’s failure to secure the disabled decedent, but the court noted there was no evidence of this misuse. Similarly, she presented depositions related to the securing of the motorized scooter and the importance of restraints, but she didn’t allege that the scooter wasn’t properly fastened to the floor with the requisite strings.
The plaintiff also argued that the driver admitted she transported the woman without requiring her to wear a shoulder strap, but the court found that failure to use property didn’t waive immunity. The trial court’s judgment was affirmed.
If you are hurt on a Texas bus or some other form of public transportation, or a loved one is killed, you should retain an experienced attorney. The skillful San Antonio bus accident attorneys at Carabin & Shaw may be able to help you recover damages. Call our office for more information at 1-800-862-1260.