I was thinking about tort liability today as I reached into our firm’s supply closet and suffered a paper cut. Ouch! My initial thought was that paper cuts are one of the worst things that can happen to a person. They are so unexpected, and they hurt like hell.
But when proper perspective returned, I realized that there are far worse fates that can befall a person. Take a broken shoulder, for example. That’s probably a lot worse than a paper cut.
Kelly Duran broke her shoulder when she fell off the motorcycle during a motorcycle safety course that was conducted by El Paso Community College. She sued EPCC to recover for her physical injuries. EPCC asserted that it was immune from liability.
The general rule here is that community colleges, like K-12 school districts, are immune from tort liability. There is an exception if a motor vehicle is involved, but only if the injury arises from the negligent use or operation of the motor vehicle by a school officer or employee. I think that tells you what Ms. Duran’s problem was. She was riding the bike when she fell off. Thus, to make the EPCC liable, she had to convince the court that the instructors in the course were effectively “using” or “operating” the bike, even though she was the one riding it.
No dice. Ms. Duran argued that the instructors in the course exercised “complete control” over the operation of the bike. The court did not see it that way. The court noted two earlier court cases in which a government employee who was not actually driving a motor vehicle was considered to be exercising control over it to the extent that liability was imposed. See County of Galveston v. Morgan, 882 S.W.2d 485 (Tex. App.—Houston [14th Dist.] 1994, write denied) and City of El Campo v. Rubio, 980 S.W. 2d 943 (Tex. App.—Corpus Christi 1998, pet. dism’s w.o.j.). But the appellate court in this case said that liability could be imposed only if the non-driver exercised direct and mandatory control. These safety instructors did not have that level of control. As the court pointed out, “Not only did Duran voluntarily choose to drive [the motorcycle] but she also continued to do so, even after expressing qualms about its size and inadequate rear brake.”
In short, sovereign immunity, as usual, triumphs. Whether it is a paper cut or a broken shoulder, the chances of pinning liability on your local school district are slim. The case is El Paso Community College District v. Duran, decided by the Court of Appeals in El Paso on July 22, 2015.
DAWG BONE: TEXAS SCHOOL DISTRICTS ARE WELL PROTECTED FROM TORT LIABILITY.