The Texas Supreme Court on Friday rejected an appeal by Robb Elementary students and teachers who argued failures by the Department of Public Safety and Uvalde County contributed to a botched response to the 2022 shooting that killed 19 students and two teachers.
The court’s order, issued without comment, upheld a February ruling by the San Antonio-based 4th Court of Appeals that dismissed the lawsuit.
DPS and the county were sued for negligence by five teachers and 20 students who were at the school but not in the classrooms where the shootings occurred.
“Most were barricaded in nearby classrooms and could hear the gunfire, and some saw the shooter as he moved through the campus. The shooter also fired into the windows of at least one of the classrooms where the appellants were located,” the appeals court noted. “Several appellants lost friends and cousins in the shooting, and others were physically injured during the evacuation. All were traumatized.”
The lawsuit argued that DPS and Uvalde County failed to protect students and teachers — an allegation, the court acknowledged, “we quite frankly cannot disagree with.”
Even so, the appeals court said, their lawsuit argued that DPS and the county acted negligently under the Texas Tort Claims Act — a law that did not apply to their claims.
Students and teachers alleged that law enforcement officers failed to use their communication equipment and protective gear as they waited more than an hour to intervene and protect those inside the elementary school.
They also alleged that responders used “defective operational equipment in a manner that delayed rescue causing distinct injury,” because radios could be used only within a 10-foot radius of the building.
Students and teachers were injured “not only by the shooter’s conduct, but also by the delayed rescue itself,” the lawsuit said.
The appeals court ruled that under the Tort Claims Act, students and teachers had to show the “use of the property must have actually caused the plaintiff’s injury.”
The lawsuit did not present evidence that properly functioning radios would have minimized or eliminated the delay in the rescue, the court ruled.
In addition, many of the lawsuit’s claims revolved around law enforcement’s failure to use body armor, shields, firearms and protective gear. However, “it is well-established that non-use of property” does not waive the county’s and the Department of Public Safety’s immunity from lawsuits under the tort act, the appeals court ruled.
“As judges, we are bound by the maxim that ‘the waiver of governmental immunity is a matter addressed to the Legislature, not the courts,’” the opinion said.
