“The King Can Do No Wrong,” and How It Protects Grossly Negligent Bus Drivers in Texas: a Reality Check
6 dead and at least 11 small children seriously injured (up to this point) by a bus driver charged with negligent homicide in Tennessee.
If this tragedy had, in fact, occurred in Texas, the ability to hold the driver accountable in a civil action and attempt to fairly compensate the families that lost these small children, or to fairly compensate the children who sustained serious injuries, would be highly unlikely. In Texas, even if the evidence ultimately showed that a bus driver was grossly negligent, or was never trained or was improperly supervised by the school district that supplied the bus and driver, the injured child victims and those parents who lost their six precious children due to such deliberate indifference, would never be fully compensated; and, shockingly, the driver would have civil immunity. No way, you say? Yes, way! Why? Because the "King Can Do No Wrong". What? What are you talking about – there is no King (despite some of the current contentions by some following the recently completed presidential election)!
Texas School Districts are Immune to Most Claims
Most school bus drivers are not hired by private contracted companies (with some limited exceptions in Texas), and the buses themselves are owned by the local school district in most areas. And the school districts are considered governmental entities under Texas law. Because of that, in order to file a claim for personal injuries to a child injured on a school bus, or a wrongful death claim if the child sustains fatal injuries, victims or their families, must comply with the Texas Tort Claims Act (TTCA).
In Texas, all governmental entities enjoy sovereign immunity (no liability) from state law claims unless the claim falls under the limited exception to the Texas Tort Claims Act. You cannot win in a lawsuit filed for a civil wrong in Texas against a governmental unit, UNLESS you fall within one of the limited exceptions. The TTCA was enacted to provide some relief from the draconian complete bar of civil liability granted to the “King” under common law. The immunity arises to the sovereign and Texas law interprets school districts as entitled to sovereign immunity absent a very, very narrow exception – the "use and operation of a motor vehicle." And it is a narrow exception. For example, the loading and unloading of children on a school bus is not the use or operation of a motor vehicle under Texas law.
Damage Caps Hurt Victims and Their Families
In addition, school districts have statutory caps on their liability that have NOT risen with the cost of inflation – $100,000 per person, and $300,000 per occurrence (one wreck). No matter the seriousness of the individual injury, or the total medical expenses paid or owed by an injured child or their family, the most that a school district can be liable for is $100,000 per child. No matter the number of victims, however, the cap for any one wreck is $300,000. In the Tennessee bus wreck, the last count listed six dead and at least 11 small children seriously injured. That means there are at least 17 victims of likely neglect by the bus driver. Under Texas law, the TTCA would limit all victims’ potential recovery to a maximum of ONLY $300,000 in total.
It is a hard cap for all elements of damages – medical and hospital expenses, disfigurement, physical pain, mental anguish, loss of companionship, impairment other than the ability to earn money, loss of earnings or future earning capacity and any other losses. It does not matter that the bus driver or his school district employer were grossly negligent or deliberately indifferent. The hard, unfair cap remains, regardless of the nature and extent of the injuries and damages. That is completely unfair.
A Growing Problem
The current tragedy demonstrates just how unfair that law can be, and how it protects negligent drivers while it punishes innocent victims and their families. Due to tort reform Texas passed over the last few years, it has become even worse. The negligent (or even grossly negligent) driver is COMPLETELY IMMUNE from any liability, as long as it is admitted by the school district that the driver was in the course and scope of his employment. Although school districts are excluded from the Tort Claims Act (which means they revert to having complete sovereign immunity) from all State claims except as to “use and operation of motor vehicles," the ability to hold a Texas school bus driver civilly liable for the death and catastrophic injury to innocent victims, for all practical purposes, does not exist. The ability to fairly compensate a parent for the horrific loss caused by the death or serious injury to a young child hurt by the neglect of a bus driver or his employer in serious wrecks like the one that occurred in Tennessee is not likely to occur.
In a case our firm handled a number of years ago, a negligent bus driver (during her first few days on the job) committed a terrible violation of the rules of the road and, due to her neglect, catastrophically injured a mother who was operating a passenger vehicle and one of her young sons when the bus driver failed to yield the right of way and disregarded a traffic control device (stop sign). The mother lived for years in a vegetative state and eventually died. Her son is still alive, but his injuries were so severe that he will never walk and he sustained a very serious traumatic brain injury that plagues him to this day. On that day, a husband lost his wife and one of his sons’ lives was changed forever due to the carelessness of an untrained and unsafe bus driver.
The school district eventually offered to pay its statutory limits of $100,000 for each claimant after a short fight. That amount was virtually nothing compared to the real permanent injuries sustained. The medical bills for each victim were many, many multiples of those amounts within a short time of the wreck. The group health care insurance companies eventually granted a hardship waiver (agreeing to waive its statutory right to be subrogated to the full amount of the monies offered by the school district), which was a very honorable thing. In turn, our firm waived all entitlement to attorneys’ fees and expenses, despite the fact our efforts gave rise to the waiver of the subrogation claims and getting what, in essence, was minimal funds to the family of the two injured victims.
Time to Take Action
The current Tennessee bus disaster puts into focus again the unfairness of the TTCA, just as in that matter described above, and the immunity granted to negligent bus drivers in Texas. The cost of obtaining reasonable liability insurance should be part of the right to transport our children on the highways of Texas. Private bus companies are required to have $5,000,000 in insurance to operate. Even that would likely be inadequate, given that 6 children were killed and 11 others seriously injured in the Tennessee tragedy; but that is a far cry from the $100,000 per person, $300,000 per occurrence cap that would otherwise exist.
It is time for our elected officials to place the TTCA, as it relates to the transportation of our children, under the fairness microscope. Tell your elected official this law is NOT fair. Let us not wait until a similar tragedy befalls a Texas family, or families, before this horribly unfair law is changed. Our Texas children, and Texas parents who trust their children to bus drivers to get them to school to be educated, should NOT be treated as second-class citizens. The current tragedy should shine a bright light on the unfairness of our "King Can Do No Wrong" TTCA law that immunizes indifferent and careless school bus drivers or unfairly limits their employers’ moral obligation to fairly compensate child victims whose injuries or deaths were caused by the unsafe actions of bus drivers. It is time for the law to change. It is time to dispose of the “King Can Do No Wrong” rule when it applies to indifferent or careless bus drivers. Anything less rewards carelessness and makes good drivers and Texas citizens pay for the negligence of indifferent and unsafe school bus drivers. Enough is enough!
About the Author
Daniel J.T. Sciano is senior attorney at the Law Offices of Tinsman, & Sciano, Inc., with over 35 years of legal experience. Mr. Sciano routinely writes and speaks on a variety of legal topics for the State Bar of Texas as part of continuing legal education of other lawyers.