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Torts No. 02-0177, 4/17/2003. Click here for the full text of this decision FACTS: The plaintiff sued Dallas Area Rapid Transit for personal injuries he sustained when another passenger attacked him after both had left the bus. The trial court granted DART’s plea to the jurisdiction, dismissing the case based on DART’s assertion of sovereign immunity. The court of appeals reversed, holding that Whitley’s injuries arose from the operation or use of the DART bus because the “driver chose to force Whitley off the bus and then dropped his attacker off near where Whitley was waiting, and decided to go on without returning to pick up Whitley as promised.” Therefore, the court held that sovereign immunity had been waived. HOLDING: Reversed and dismissed for lack of subject matter jurisdiction. A unit of state government is immune from suit and liability unless the state consents. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636 (Tex. 1999). Governmental immunity from suit defeats a court’s subject matter jurisdiction. In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity. To determine if the plaintiff has met that burden, “we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties.” Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864 (Tex. 2001). No one disputes that DART is a governmental unit under the Tort Claims Act. The court reviews Whitley’s pleadings and the evidence he attached in response to DART’s plea and motion to determine if his claim comes within a statutory waiver of immunity. Under the Tort Claims Act, a governmental unit’s sovereign immunity is waived for “property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment.” Texas Civil Practice and Remedies Code �101.021. This court has defined “use” as “‘to put or bring into action or service; to employ for or apply to a given purpose.’” Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208 (Tex. 1989) (quoting Beggs v. Tex. Dep’t of Mental Health & Mental Retardation, 496 S.W.2d 252, 254 (Tex. Civ. App.-San Antonio 1973, writ ref’d)). Whitley argues that his injuries arise from a use of the bus because the bus driver wrongfully ejected him in a remote and dangerous area of Dallas, allowed Burkley to deboard after she assaulted and threatened him in the driver’s presence, and then failed to pick him up as promised. DART counters that Whitley does not allege a “use” of the bus, but rather alleges “nonuse” of the bus, misuse of information, failure to provide protection or failure to properly supervise passengers. The court agrees that Whitley’s injuries did not arise from the use of the bus. Rather, his injuries arose from the bus driver’s failure to supervise the public, which is insufficient to waive immunity under the Tort Claims Act. The court requires a nexus between the operation or use of the motor-driven vehicle or equipment and a plaintiff’s injuries. This nexus requires more than mere involvement of property. Rather, “the [vehicle]‘s use must have actually caused the injury.” Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864 (Tex. 2001). Thus, as with the condition or use of property, the operation or use of a motor vehicle “does not cause injury if it does no more than furnish the condition that makes the injury possible.” Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339 (Tex. 1998). Whitley’s allegations are similar to those made in Estate of Garza v. McAllen Independent School District, 613 S.W.2d 526 (Tex. Civ. App. – Beaumont 1981, writ ref’d n.r.e.). Burkley and her accomplices caused Whitley’s injuries, and the driver’s failure to supervise Burkley may have contributed, but the operation or use of the bus did not. Whitley argues that Austin Independent School District v. Gutierrez, 54 S.W.3d 860 (Tex. App. – Austin 2001, pet. denied), and Contreras v. Lufkin Independent School District, 810 S.W.2d 23 (Tex. App. – Beaumont 1991, writ denied), should control this case. The court disagrees. In Gutierrez, a school bus driver honked her horn to signal that the plaintiff could safely cross the street. The court of appeals held that the “bus driver took the affirmative action of honking the horn which may have contributed to the accident.” By contrast, no use of the DART bus in this case contributed to Whitley’s injuries. In Contreras, a student was let off a school bus around the corner from her home and was struck by a car while trying to get home. Although Contrerasis factually similar, it does not hold that immunity was waived. Rather, the court of appeals reversed defendant’s summary judgment because the sole ground on which it was based, that the plaintiff had not pled waiver of immunity, was without merit. Thus, Contrerasdoes not apply to this case. The gravamen of Whitley’s complaint is that Burkley and her cohorts’ actions and the bus driver’s failure to supervise the public caused his injuries. The court recognizes that Whitley suffered terrible injuries and that it is unlikely he will recover any meaningful compensation for them under the tort system. But the Legislature has enacted only a limited waiver of sovereign immunity, and the terms of that waiver do not permit Whitley to recover against DART in this case. OPINION: Phillips, C.J.; Hecht, Owen, O’Neill, Jefferson, Schneider, Smith and Wainwright, JJ., join. Enoch, J., did not participate.

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