BEAUMONT – Justices on the Ninth Court of Appeals recently affirmed the Beaumont Independent School District has immunity from a wrongful death suit.
In March 2015, area residents Nathan and Tracy Delameter filed a petition seeking the depositions of any BISD employees with knowledge of their 3-year-old son’s death. A lawsuit later followed.
The boy had an assortment of development or learning difficulties. By age 3, he was enrolled in the early childhood program at BISD on the Regina Howell campus, where he received speech, occupational and physical therapy, court records show.
On Dec. 8, 2014, the child was placed on a BISD bus for transport to school. Approximately one hour later, the boy was dead.
According to the plaintiffs’ appeals brief, the bus had a driver and an attendant whose jobs included: buckling and securing the boy safely on the bus; making sure his wheelchair was locked into place; securely strapping him into his wheelchair; and monitoring his position and condition until he made it to school.
While on the bus, the boy’s restraint had tightened around him, apparently to such an extent that another child on the bus became concerned and told BISD bus driver.
“This event, and warning, was ignored by the BISD’S personnel,” states the brief. “Despite being approximately one block from the St. Elizabeth Hospital Emergency Room, the bus driver stopped and called BISD dispatch who then instructed them to wait for an ambulance.”
The hospital was so close the bus driver could see it from where he was parked, but BISD refused to allow the driver to continue, even though he knew the child needed immediate medical attention, the brief states
“After ten crucial minutes elapsed, the first responders arrived and took Ian to St. Elizabeth,” the brief states. “These heroic albeit late efforts were not enough.”
As a result, the Delamater family sued BISD, alleging their son’s death was legally caused by BISD’S negligent operation of a motor vehicle.
In response, BISD filed a Plea to the Jurisdiction, asserting governmental immunity, court records show.
After a hearing, Judge Donald Floyd, 172nd District Court, found the child’s death did not arise from the use or operation of a motor vehicle and/or the condition or use of personal property, granting BISD’S plea on Jan. 19, 2017, and dismissing the Delamater’s suit for lack of subject matter jurisdiction.
The plaintiffs appealed the following month, questioning whether Floyd erred in his ruling.
“In our present case, the facts demonstrate a decision made by the bus driver that related to use or operation of the bus,” the appellants’ brief states. “The driver drove in a manner in which caused Ian to bounce around in his wheelchair to the point he became unconscious. While the bus was in use, he then stopped the bus rather than take Ian to the hospital.
“Similarly, BISD was also negligent in not rendering CPR to Ian. The BISD driver admitted that no one provided CPR to Ian while he was unconscious for ten minutes.”
On appeal, BISD argued the plaintiffs failed to establish facts sufficient to waive the district’s immunity.
The Ninth Court agreed, affirming the trial court’s ruling on Feb. 1, court records show.
“In this case, Ian was not injured while getting off the bus. Instead, the Delameters’ claims allege that (the driver) should have used the bus to take Ian to the hospital and the District’s policies should not have prevented (the driver) from using the bus for that purpose,” the Ninth Court’s opinion states.
“However, these claims concern the non-use of the bus … and do not concern a negligent decision to stop the bus in an improper location. Regardless of whether these claims have merit, they concern the nonuse of the District’s bus. As such, they fall outside the limited waiver of immunity…”
Beaumont attorneys Paul “Chip” Ferguson and Cody Dishon represent the plaintiffs.
BISD is represented by attorneys Frances Broussard and Christopher B. Gilbert of the Thompson & Horton law firm in Houston.
Case No. E-197589
Appeal case No. 09-17-00045-CV