No. 05-16-00222-CV.


Court of Appeals of Texas, Fifth District, Dallas.

Attorney(s) appearing for the Case

Brett A. Smith , Howard Jay Klatsky , for Cathy Bambenek, Appellee.

Marla Suzanne Pittman , Lawrence J. Friedman , for Eric Will, et al., Appellant.

Before Justices Bridges, Evans, and Schenck.


Opinion by Justice DAVID EVANS.

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.


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.


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 force in the discipline of students or negligence resulting in bodily injury to students.

See TEX. EDUC. CODE ANN. §22.0511(a) (West 2012).

3) No immunity for violation of a mandatory rule

To come within the shield of section 22.0511 of the Texas Education Code, an employee must satisfy several criteria. Id. For instance, the person claiming immunity must show that she was, at the time of the accident, a professional employee of a school district performing a discretionary task incident to or within the scope of her duties. Id. It must also be shown that the exceptions do not apply. Id. Here, the Will family does not dispute that Bambenek was a professional employee, nor do they argue that the statutory exception applies. Instead, they contend that Bambenek was not performing a discretionary task when the accident occurred. Specifically, the Will family argues that because Bambenek failed to follow a mandatory rule— the non-discretionary school safety policies for laboratory experiments—she is not immune from personal liability under section 22.0511 of the Texas Education Code. We disagree.

Whether an act is ministerial or discretionary depends upon the ability of the actor to exercise discretion when performing it. See Chesshir v. Sharp, 19 S.W.3d 502, 506 (Tex. App.-Amarillo 2000, no pet.). If an edict prescribes the duties to be performed with such precision and certainty so as to leave nothing to the exercise of the actor's judgment, then the act is ministerial. Id. If, however, the actor is entitled to personally deliberate about the manner or means of performance and invoke her own judgment, then it is discretionary. Id.

In her summary judgment motion, Bambenek argued that decisions regarding her classroom safety policies involved her judgment and discretion, not mandatory rules. In support of her motion for summary judgment, Bambenek submitted her affidavit which provided the following assertions:

1. The experiment [during which S.N.W. was injured] was not promulgated by or mandated by the Plano Independent School District. Instead, this experiment was one that I (and an individual named Camille McCraw, who was my Department Head at the time) learned about while reviewing a newsletter that was created by Flinn Scientific, Inc., which was used in the teaching community as a fun and informative science education resource that provides science, supplies, and innovative ideas to help teachers and students succeed. 2. Camille and I discovered this experiment approximately five (5) years before the date of the accident at issue. At that time, I conducted the experiment myself to determine if it would be appropriate for my current — and future — students. After doing so, Camille and I decided to have the students do this experiment. 3. Before my students — including [S.N.W.] — were permitted to participate in this experiment, they were required to take and receive an "A" grade on a written safety quiz that was created by the Chemistry teachers at Clark High School (including myself), handed out (by me), and graded (by me), and to tender a Science Class Safety Agreement bearing the signature of their respective parent or guardian. 4. Before I administered this safety quiz to my students (including [S.N.W.]), I spoke with my students in detail about applicable laboratory safety rules, I did a demonstration of the experiment (for the students) to show them how the experiment to be conducted was to be conducted, I showed them how to clean up spills, and how to wash acid off of their hands and clothing (in the event that this was needed). 5. Prior to taking this Safety Quiz, I told the students about — and gave them — written laboratory safety rules. The Rules include Rule No. 8 ("Notify your teacher immediately if any chemicals, such as concentrated acid or base, are spilled") and Rule No. 9 ("Report all accidents, no matter how slight, to the teacher immediately"). 6. I was authorized by the Plano Independent School District to remove students from any experiment if the prescribed safety rules for the experiment being conducted were not followed.

The evidence submitted by Bambenek indicates that she was in charge of creating and implementing the safety protocols in her classroom. For example, she decided when safety goggles would be worn during experiments and assisted in the preparation of a safety quiz about laboratory safety rules. Thus, Bambenek personally deliberated about the manner or means of the safety protocols and invoked her own judgment. Chesshir, 19 S.W.3d at 506.

In response, the Will family introduced "clear evidence" of non-discretionary school safety policies by referencing a passage from the Texas Safety Standards:

If a student receives a chemical burn, remove clothing and place the student in the safety shower for at least 15 minutes. Call the nurse and 911. Cover burns with a clean dressing.1

We note, however, that the Texas Safety Standard cannot create a fact issue regarding whether Bambenek failed to follow mandatory safety procedures in her classroom because there is no evidence that these standards were adopted by Clark High School or the Plano Independent School District. As such, we cannot conclude that they were mandatory standards that Bambenek was required to follow.

The Will family also argued that Bambenek violated her own safety policies because school personnel allegedly did not have S.N.W. rinse her burn area for at least fifteen minutes. In support of this assertion, the Will family references the following statement from Bambenek's summary judgment evidence: "[i]n case of contact, immediately flush skin or eyes with plenty of water for at least 15 minutes."2 This quoted passage is taken from a safety quiz administered by Bambenek to her students. In the quiz, the students are asked to read the provided material data safety sheet (MSDS) and answer questions about a substance. The quiz neither states which chemical is at issue nor states that this is a mandatory procedure for any chemical which comes into contact with the skin. As such, this language taken from Bambenek's quiz cannot raise a fact issue regarding mandatory safety procedures because this quiz was to test the student's ability to comprehend and apply the MSDS in the classroom, not to instruct on mandatory classroom policies.

The Will family also references Myers v. Doe, 52 S.W.3d 391 (Tex. App.-Fort Worth 2001, pet. denied) in support of its argument regarding mandatory safety procedures. In Myers, specific policies and procedures were established after a special education student was sexually assaulted by another student at school. Id. at 393-94. The court concluded that the teachers were not entitled to summary judgment for immunity under section 22.051 because fact issues were raised that the teachers failed to follow the policies created specifically for this student. Id. at 396. The court further noted that the policies "defined the duties with such precision as to leave nothing to the exercise of Appellants' judgment or discretion." Id. Here, however, the Will family has not raised a fact issue regarding Bambenek's failure to follow mandatory safety policies and, as such, Myers is distinguishable.3 For all the reasons described above, we resolve the Will family's first issue against them.

4) "Self-serving" affidavits

The Will family also argues that Bambenek's statements in her affidavit that she was operating within the scope of her employment and exercising discretion "were illegitimate and not entitled to any weight" because of their conclusory nature. We disagree.

A conclusory statement is one that does not provide the underlying facts to support the conclusion. See Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.-Dallas 2004, pet. denied). As discussed above, Bambenek's affidavit included numerous statements in support of her assertion that she was in charge of creating and implementing her classroom safety protocols. For example, she decided when safety goggles would be worn during experiments and assisted in the preparation of a safety quiz about laboratory safety rules. Accordingly, we hold that these statements provide sufficient underlying facts to support her argument that she was immune from personal liability under section 22.0511 of the Texas Education Code.

We affirm the trial court's decision to grant summary judgment based upon Bambenek's immunity under section 22.0511 of the Texas Education Code, so we need not address the Will family's additional argument that the Texas Tort Claims Act is inapplicable.


We affirm the trial court's judgment.


In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee CATHY BAMBENEK recover her costs of this appeal from appellants ERIC WILL AND MICHELE WILL, ON BEHALF OF S.N.W., MINOR CHILD.


1. The Will family attached excerpts of the Texas Safety Standards, Second Edition 2000, "A Guide to Laws, Rules, Regulations and Safety Procedures for Classroom, Laboratory, and Field Investigations."
2. The Will family specifically cited to Appendix B (Bambenek's motion for summary judgment), Appellees Ex. 1 and C.R. 44-47 (Bambenek's safety quiz).
3. As further support of this argument, the Will family also cites to Whitesell v. Newsome, 138 S.W.3d 393 (Tex. App.-Houston [14th Dist.] 2004, pet denied). In Whitesell, the court concluded Whitesell was not entitled to summary judgment for immunity under section 22.051 because fact issues were raised that he failed to inform the school district about a bus driver's felony conviction. Id. at 397. The court concluded that this act "did not fall into a category of acts permitting the exercise of Whitesell's discretion." Id. Again, the facts in Whitesell are distinguishable from the fact patterns described above because there is no evidence that Bambenek was subject to any mandatory safety policies. For this reason, we find this case to be distinguishable and unpersuasive.


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