Before Texas Supreme Court: BISD immunity win in suit over death of toddler

By David Yates | Aug 20, 2018

BEAUMONT – The Texas Supreme Court has been tasked to determine whether 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, 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.

And 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 plaintiffs assert.

The hospital was apparently 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 plaintiffs claim.

The first responders arrived 10 minutes later and took Ian to St. Elizabeth.

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.

BISD argued the plaintiffs failed to establish facts sufficient to waive the district’s immunity.

The Ninth Court of Appeals 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…”

The plaintiffs filed a petition for review with the Texas Supreme Court in March. Merits briefs were recently filed by both parties.

The plaintiffs filed their brief on July 20, asserting BISD has not demonstrated that it is entitled to immunity.

“Here, the school employee's negligent act in using or operating the bus played a substantial role in causing Ian's death,” the brief states. “Had Ian been brought to the hospital and not just left unconscious on a school bus for over ten crucial minutes, his life could have been saved.”

BISD filed its reply brief on Aug. 13, arguing that the high court should decline to exercise jurisdiction over the appeal, because the decision to not take the boy to the hospital “involved the routine application of the well-established doctrine of immunity to a set of facts that while tragic, were largely undisputed.”

BISD’s brief states: “Putting aside the fact that a policy that requires bus drivers to call into the central office and then allow emergency responders to come to where the bus is located, as opposed to encouraging bus drivers to drive at potentially unsafe speeds, putting other students at risk, to where the bus driver thinks a hospital may be (without necessarily knowing whether that hospital is best equipped to handle the students’ particular health emergency), is hardly the callous policy that Petitioners make it out to be, the driver’s decision not to drive to the hospital is not the “use or operation” of a motor vehicle, but rather, a decision whether or not to seek medical assistance, and then how best to seek that assistance.”

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

Ninth Court appeal case No. 09-17-00045-CV. Texas Supreme Court case No. 18-0241

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Beaumont Independent School District Texas Supreme Court The Ferguson Law Firm LLP

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