concurring and dissenting.
The majority opinion correctly interprets section 101.021 of the Texas Civil Practice and Remedies Code and applies it accurately in this case. I concur in that part of the opinion on the issue of sovereign immunity, as well as the result. Because it became unnecessary to reach the question of the standard of care applicable to the operation of school buses, I dissent from that part of the majority’s opinion.
The legislative imposition of tort liability upon a school district is limited by section 101.051 of the Texas Civil Practice and Remedies Code, which excludes school districts from the Texas Tort Claims Act. Section 101.021 of the Texas Civil Practice and Remedies Code provides a statutory *215exemption to the sovereign immunity doctrine that a plaintiff must allege and prove in order to bring suit against any governmental entity. The essence of the exception embodied within that section provides that a state governmental unit is liable for property damage, personal injury or death proximately caused by the intentional or negligent act of an employee acting within the scope of his employment if the property damage, personal injury or death arises from the “operation or use of a motor-driven vehicle or motor-driven equipment.” Tex.Civ.Prac. & Rem.Code Ann. § 101.021(1)(A) (Vernon 1986).
The Texas Tort Claims Act does not define the words “operation” and “use”; therefore, their common and ordinary meaning should be applied. Hopkins v. Spring Indep. School Dist., 736 S.W.2d 617 (Tex.1987). In the application of the ordinary meaning of these words, numerous Texas courts have held that damage or injury may arise from the use or operation of a school bus only if the use or operation of the bus is the proximate cause of the damage or injury. Estate of Garza v. McAllen Indep. School Dist., 613 S.W.2d 526, 527 (Tex.Civ.App.—Beaumont 1981, writ ref’d n.r.e.); Brantley v. City of Dallas, 545 S.W.2d 284, 286 (Tex.Civ.App.—Amarillo 1976, writ ref'd n.r.e.); Jackson v. City of Corpus Christi, 484 S.W.2d 806, 809 (Tex.Civ.App.—Corpus Christi 1972, writ ref'd n.r.e.).
In the case at bar, the Texarkana Court of Appeals’ opinion summarized the evidence in this fashion:
Witnesses testified that Misty walked away from the bus without making any effort to cross the highway. The school bus drove away, and she began walking down the east side of the road toward the other entrance to the trailer park. A driver of one of the cars following the school bus stopped and attempted to wave Misty across the highway. She refused to cross at that time, but did attempt to cross after the northbound line of cars which had been stopped behind the school bus had passed. Misty was struck by a southbound pickup truck while crossing the highway and was killed.
746 S.W.2d at 257-58.
In addition, the pickup driver testified that he passed the school bus as it was “breaking over the hill” approximately 100 to 200 yards away from the scene of the accident. The last motorist in the line of traffic behind the school bus testified that enough time had passed to allow the bus and all traffic to reach the top of the hill. Therefore, the bus was at least one-quarter mile from the scene when Misty Lindburg attempted to cross the road. Clearly, the accident in no way resulted from or was proximately caused by the “use or operation” of the school bus.
The majority’s decision on the issue of governmental immunity and the statutory waiver contained in section 101.021 of the Texas Civil Practice and Remedies Code should end the inquiry. The court need not consider the standard of care to be exercised in the use or operation of a school bus to reach its conclusion. The question of what degree of care is owed is chronologically inferior to the question of whether a duty of care exists. By determining that the plaintiff cannot avail itself of the statutory waiver, the court effectively closed any question of duty of care.
Because consideration of the standard of care applicable to the operation of school buses is unnecessary to the disposition of the matters herein, I dissent from the majority’s discussion of that issue.