dissenting.
I respectfully dissent. The majority, in my opinion, is saying on the one hand that appellee properly alleged a claim within the waiver provisions of the Tort Claims Act. On the other, they say the summary judgment was granted for failure to state a cause of action based on its pleadings and appellee, therefore, should have had the opportunity to allege a cause of action. Either appellee did or did not allege a claim. If he did, then summary judgment was improper if it was granted on the grounds on which the majority says it was granted.
I do not interpret the summary judgment as being granted on the basis that appellee failed to state a cause of action.
The Summary Judgment of the Court reads in pertinent part:
Upon review of their pleadings, arguments of counsel, affidavits and other summary judgment evidence on file herein, the Court is of the opinion that the liability of Defendant, Metropolitan Transit Authority, is governed by the provisions of the Texas Tort Claims Act, as amended, that Plaintiffs claim is not actionable under the waiver of immunity of the Texas Tort Claims Act and that Defendant is entitled to judgment as a matter of law.
Nowhere in the judgment is it said it is being granted on the basis that appellee failed to state a cause of action. Even if it was granted on that ground, I would still disagree with my brethren. The record reflects that appellant filed two documents as special exceptions. In its first, filed March 12, 1984, appellant complained that appellee’s original petition did not apprise appellant of the actual amount of damages claimed, and only stated his damages exceeded the minimum limits of the Court. Appellant’s second Special Exceptions, filed July 30, 1984, pointed out with specificity that appellee had not pled a cause of action so as to bring himself within the scope of the Texas Tort Claims Act. The pertinent exception read:
Defendant METROPOLITAN TRANSIT AUTHORITY excepts and objects to the entirety of Paragraph IV in which Plaintiff purports to outline the basis of his cause of action against Defendant by *742delineating the various acts of negligence upon which his claim is predicated. Defendant would show that as a rapid transit authority, it is subject to tort liability only to the extent waived by the Texas Tort Claims Act, Vernon’s Ann. Civ.St. arts. 1118x, Sec. 13A (Supp.1984). Plaintiff’s allegations of negligence in Paragraph IV of his petition fail to allege acts or omissions which fall within the scope of the Texas Tort Claims Act. Accordingly, Defendant request that Plaintiff be required to amend his pleadings stating specifically the acts or omissions forming the basis of his claim that are within the scope of this Act.
Although no formal order was entered by the trial court, the docket sheet reflects that on August 27, 1984, the court denied Defendant’s special exceptions. In my opinion, appellant complied with Texas Dept. of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974). How many special exceptions must a party file? Remarkable is the fact that appellant in his Response to Appellee’s Motion for Summary Judgment stated:
If the pleading is merely insufficient to state a cause of action, rather than showing an insurmountable barrier to recovery, its pleadings may only be attacked by the way of special exception. On July 27, 1984, Movant filed special exceptions, which encompassed the same legal grounds upon which the Movant bases this summary judgment motion. The presiding judge denied Movant’s Special Exceptions on August 27, 1984.
I would hold that once a party files special exceptions giving the other party fair notice of a pleading defect and ample time to amend, the denial of the special exceptions does not preclude summary judgment being granted for failure to state a cause of action.
Another reason I dissent is my disagreement with the majority in holding that ap-pellee’s claim was not barred by the Texas Tort Claims Act, Tex.Civ.Prac. & Rem.Code Ann. §§ 101.001-.109 (Vernon 1986). Attached to appellee’s Motion for Summary Judgment were excerpts from appellant’s oral deposition in which he acknowledges that the bus driver had stopped the bus when the assault was taking place, refused to get involved in the affray and told appel-lee to get off of the bus. Appellant’s pleadings alleged the “driver refused to take any action” to protect him and, following the fight, “told Plaintiff to leave the bus.” He further alleged the bus driver failed to maintain a proper “lookout” “take proper precautions to prevent or mitigate” his injury and failed to exercise care “to protect passengers from violence.” In my opinion, the summary judgment proof shows the altercation in which appellant was involved resulted solely from circum-stancés personal to him. It did not arise or result from the operation or use of the bus or the use of any other tangible property. Indeed, appellant’s pleadings do not allege that a “use” of some tangible property or its “condition” was a contributing factor to his injury. I would hold that liability could not be imposed when injury merely took place on the motor vehicle and did not result from the negligent use or operation of it. See Estate of Garza v. McAllen Independent School District, 613 S.W.2d 526 (Tex.Civ.App.—Beaumont 1981, writ ref’d n.r.e.). The appellant’s allegations and appellee’s summary judgment proof may show there were perhaps errors in judgment on the part of the bus driver in failing to control and supervise the public, but the injuries to appellant were not caused by the operation or use of the motor vehicle. The bus was merely the site of the altercation; its use or operation did not cause it. See Pierson v. Houston, 698 S.W.2d 377 (Tex.App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.). Although the majority agrees the Garza holding was correct, it distinguishes Garza on the basis that the legislative purpose is to grant school districts very narrow liability. My reading of Garza and Pierson does not reveal such rationale as a basis for the holding in either case.