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Will v. Bambenek

Court of Appeals of Texas, Fifth District, Dallas

April 19, 2017

ERIC WILL AND MICHELE WILL, ON BEHALF OF S.N.W., MINOR CHILD, Appellants
v.
CATHY BAMBENEK, Appellee

         On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-01374-2015

          Before Justices Bridges, Evans, and Schenck

          MEMORANDUM OPINION

          DAVID EVANS JUSTICE

         Appellants Eric and Michelle Will, on behalf of S.N.W., a minor child (the Will family), assert that the trial court erred in granting appellee Cathy Bambenek's motion for summary judgment. We affirm.

         BACKGROUND

         On April 8, 2013, S.N.W. was a sophomore who attended Clark High School. Bambenek was S.N.W.'s chemistry teacher. During an experiment, hydrochloric acid spilled on S.N.W.'s hand and caused a burn. Pursuant to section 22.0511 of the Texas Education Code, the Will family brought a negligence claim against Bambenek in her individual capacity. In the petition, the Will family specifically alleged that Bambenek was negligent by failing to: (1) provide the required personal protective equipment, such as protective gloves, when handling hydrochloric acid; (2) follow the guidelines for safe chemical use in the classroom; and (3) follow the required chemical burn protocol. Bambenek moved for summary judgment on the grounds that (1) she was immune from personal liability for negligence based on section 22.0511(a) of the Texas Education Code and (2) the Will family was required to sue the Plano Independent School District. The trial court granted Bambenek's summary judgment motion. The Will family then filed this appeal.

         ANALYSIS

         The Will Family raises three sub-issues regarding their challenge to the trial court's granting of summary judgment, complaining (1) there is no immunity for violation of a mandatory rule; (2) the summary judgment affidavits are "self-serving"; and (3) Texas Tort Claims Act does not apply.

         1) Standard of review

         Where, as here, the summary judgment does not specify or state the grounds relied on, it will be affirmed on appeal if any of the grounds presented in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). We review the trial court's traditional summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2003). The party moving for summary judgment bears the burden of proof. Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013). Under Texas Rule of Civil Procedure 166a(c), the moving party must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Further, in reviewing a summary judgment, we consider the evidence in the light most favorable to the non-movant and resolve any doubt in the non-movant's favor. Id.

         2) Texas Education Code

         This case involves section 22.0511(a) of the Texas Education Code which reads as follows:

A professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee's position of employment and that involves the exercise of judgment or discretion on the part of the employee, except in circumstances in which a professional employee uses excessive ...

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