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Click here for the full text of this decision FACTS:Jose Castro appeals the trial court’s amended final judgment awarding Jerry Stevens Cammerino $2,022,917 for injuries she sustained when she was struck by a Dallas Area Rapid Transit bus driven by Castro. Although Castro wore a DART uniform and drove a DART bus, he was an employee of a DART contractor, First Transit Inc. First Transit contracted with DART to provide public transportation. Castro was employed by First Transit to operate a bus pursuant to its contract with DART. Although an employee of First Transit, Castro drove a DART bus and wore a DART uniform. On June 28, 2002, as Cammerino was walking in the crosswalk, she was struck and dragged by a DART bus making a right turn. Castro was the driver of the DART bus. A police officer saw the accident, jumped out of his patrol car, and ran down the middle of the street with his arms raised, saying “Stop. Stop.” When the DART bus stopped, the front passenger-side wheel was directly on top of Cammerino’s right foot and leg. The police officer told Castro to back up the DART bus, but instead he turned the wheel, grinding Cammerino’s foot and leg. Another DART bus driver got on the DART bus with Castro and helped him back the bus off of Cammerino’s leg. An ambulance arrived and took Cammerino to the hospital. At the hospital, Cammerino’s right leg was amputated because it had been severely crushed and mangled. Also, she had a complex fracture of the elbow and other cuts and bruises. Cammerino sued Castro and First Transit alleging negligence, negligent entrustment, and negligence per se, and seeking economic, non-economic and punitive damages. Her children, Lori and Chris Cammerino, sued First Transit and Castro for loss of parental consortium. First Transit and Castro filed a joint motion for summary judgment that asserted the application of the Texas Tort Claims Act statutory damage cap, because First Transit was an independent contractor of DART. The Cammerinos nonsuited First Transit and continued with their negligence claims against Castro. First Transit intervened in the suit, seeking a declaratory judgment to determine the rights of First Transit and Castro under the Texas Tort Claims Act. The trial court allowed the intervention over the Cammerinos’ objection, but bifurcated First Transit’s claims in intervention from the Cammerinos’ claims against Castro. The case proceeded to trial only on the Cammerinos’ claims against Castro. Before trial, the parties stipulated that, when the DART bus struck Cammerino, “Castro was performing his duties as an employee of First Transit in furtherance of First Transit’s contract with DART . . . [by] providing public transportation pursuant to that contract.” At trial, Castro did not contest the nature of Cammerino’s injuries. The jury found Castro liable for negligence, awarded Cammerino $2,022,917.41 in compensation for her injuries, but did not award Lori or Chris Cammerino damages for loss of parental consortium. Further, the jury found Cammerino’s injuries were not the result of malice, and punitive damages were not awarded. Following the jury’s verdict, First Transit moved for the entry of a judgment relieving Castro of liability and assessing damages in the amount of $100,000 against First Transit. The trial court denied First Transit’s motion. Then, the trial court granted the Cammerinos’ motion to sever First Transit’s intervention. Castro filed a motion for new trial, urging the trial court to enter a judgment against First Transit applying the Texas Tort Claims Act statutory damage cap or, in the alternative, to apply the statutory damage cap to him and reduce the judgment. The trial court denied Castro’s motion for new trial and amended the final judgment to clarify that Lori and Chris Cammerino were not entitled to recover their costs. HOLDING:Affirmed. The trial court did not err when it refused to apply the statutory damage cap set out in the Texas Tort Claims Act. The statutory framework providing the damage caps and the bar does not include the employees of independent contractors of governmental units. The Texas Legislature could have included language in �452.056(d) of the Texas Transportation Code, article 6550d of the Texas Revised Civil States, or some other provision of the Texas Tort Claims Act to extend the bar under former �101.106 or the statutory damage cap to the employees of an independent contractor of a regional transportation authority. It did not do so. GLF Construction Corp. v. LAN/STV, 414 F.3d 553 (5th Cir. 2005), does not address the liability of an independent contractor’s employees. In GLF, the court focused on the specific question of whether LAN/STV, a contractor of DART, which prepared certain plans, drawings and specifications for construction of extensions to the light rail system, and supervised the construction, could be subject to liability for claims of professional negligence and misrepresentations by GLF, a building contractor on the project. The Fifth Circuit concluded that article 6550d of the Texas Revised Civil Statutes, by its specific language, limited LAN/STV’s liability “only to the extent” DART would be liable. Nowhere in the opinion does the Fifth Circuit address employee liability. Castro argues that the trial court’s refusal to apply the statutory damage cap to his liability causes an employee, performing a public service in the scope of his employment, to be held to a greater standard of liability than his employer, an independent contractor with limited liability. Castro relies on Davis v. Mathis, 846 S.W.2d 84 (Tex. App. Dallas 1992, no writ), and the doctrine of respondeat superior to support this claim. Davis does not support Castro’s position, the court decides. Under the Texas Tort Claims Act and the related provisions in section 452.056(d) of the Texas Transportation Code and article 6550d of the Texas Revised Civil Statutes, Castro is not in the same position as a DART “employee.” The Texas Legislature expressly excluded the employees of an independent contractor when it stated that the definition of an employee, “does not include . . . an agent or employee of an independent contractor.” See Tex. Civ. Prac. & Rem. Code Ann. � 101.001(2). Castro’s position that he will be held to a greater degree of liability than his independent contractor employer is an argument best made to the Legislature. The doctrine of respondeat superior does not require Castro’s liability to be limited to the statutory damage cap. Respondeat superior is a doctrine typically used offensively by a party asserting a claim against an employer for an employee’s wrongful acts. The court concludes that the trial court did not err when it admitted into evidence graphic photographs of Cammerino’s injuries. “At trial, Castro contested liability and took the position that Cammerino did not look properly before entering and while walking in the crosswalk. The three photographs depicting the DART bus, the crosswalk, and the blood and tissue in the crosswalk show Cammerino was in the crosswalk and how far she had entered into the intersection when she was struck and dragged by the DART bus. Also, Castro contested the issue of damages. Although gruesome, the photograph of Cammerino’s injured leg showed the extent of Cammerino’s injuries.” OPINION:Lang, Douglas S., J.; O’Neill, FitzGerald and Lang, JJ.

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