concurring.
The majority holds that the doctrine of sovereign immunity bars recovery because there was no jury finding that this case fell within the waiver of immunity of the Texas Tort Claims Act. Under the Tort Claims Act, we are required to interpret the phrase “operation or use of a motor-driven vehicle.” Tex.Civ.Prac. & Rem.Code Ann. § 101.021(1)(A) (Vernon 1986). Although it would appear from all evidence that the accident in question arose from the operation and use of a motor-driven vehicle, there was no jury finding on this issue. The respondents have thus waived.an. essential element of their cause of action. I can see no difference, however, between a bus driver leaving the scene before the child crossed the road and a bus driver who simply fails to turn on the red warning lights so that a child can cross in safety, *214see Hitchcock v. Garvin, 738 S.W.2d 34 (Tex.App.—Dallas 1987, no writ). But because there is no jury finding on this crucial element, I reluctantly concur in the result reached by the majority.
However, I believe that the Mount Pleasant Independent School District violated the ordinary standard of care applicable in this case. Misty Lindburg, a seven-year-old, got off of her school bus on the east side of U.S. Highway 271, which was across the highway from an entrance to the trailer park in which she lived. Misty walked away from the bus and into the grass on the east side of the highway. She then appeared to bend over and tie her shoe. Although it was Mount Pleasant Independent School District’s policy to keep the school bus stopped until the children had safely crossed the highway, the school bus pulled away and left Misty standing on the side of the highway. When Misty attempted to cross the highway, she was struck and killed by a passing motorist.
It is important to note that we are dealing with a seven-year-old child. Clearly it might take longer for a seven-year-old to alight from a bus, tie her shoe, and cross the highway than it would for a teenager or a student in high school. Children in the elementary school grades (grades one through six) are often known to dawdle. This is nothing unusual and is to be expected. Children of this age find beauty in a flower, a rock, or things that we as adults have long since lost the ability to appreciate.
The evidence showed that the bus pulled away before Misty had crossed the highway. The duty of a school bus driver continues not only until the student has safely exited the bus, but if the student must cross the road, continues until the student has done so. E.g., Archuleta v. Jacobs, 43 N.M. 425, 94 P.2d 706 (N.M.1939); Slade v. New Hanover County Bd. of Educ., 10 N.C.App. 287, 178 S.E.2d 316 (1971); Cartwright v. Graves, 182 Tenn. 114, 184 S.W.2d 373 (1944). The bus was approximately 100 to 200 yards from the scene of the accident when Misty was killed. Thus, using standard estimates, we are talking about fifteen to thirty seconds. Is not the life of a seven-year-old child worth waiting an additional fifteen to thirty seconds?
Regarding the appropriate standard of care, the court of appeals in the instant case imposed the “highest” degree of care upon the operators of school buses. School buses are not common carriers. The majority rule imposes on school bus drivers a duty to exercise only “ordinary care.” One of the reasons for this distinction is that it has been held in Texas that the higher duty of care for a common carrier terminates at the point when the passenger safely exits the common carrier vehicle. See, e.g., Mills v. City of Dallas, 539 S.W.2d 402, 404 (Tex.Civ.App.—Waco 1976, no writ); Wittkower v. Dallas Ry. & Terminal Co., 73 S.W.2d 867, 869 (Tex.Civ.App.—El Paso 1934, writ ref'd). As stated above, however, the majority rule is that the duty owed by a school bus driver does not terminate at the instant a passenger has safely alighted from the bus. Thus, even if a higher duty of care were imposed, it would not be applicable in this case since Misty had already exited the bus; the bus driver would still be held to an ordinary duty of care.
Accordingly, I concur only in the result reached by the court.