Opinion

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-90-002-CV

TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION,

APPELLANT

vs.

OPAL PETTY, BY AND THROUGH HER NEXT FRIENDS,

AND LINDA KAUFFMAN AND HERBERT CLINTON DENSON,

AS NEXT FRIENDS OF OPAL PETTY,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 428-321-A,, HONORABLE HARLEY CLARK, JUDGE

Opal Petty, through her "next friends" Herbert Clinton

Denson and Linda Kauffman, sued the Texas Department of Mental

Health and Mental Retardation to recover damages for personal

injuries that Ms. Petty allegedly suffered as a result of the

negligence of Department employees. Ms. Petty recovered a judgment

against the Department in the amount of $250,000. Both the

Department and Ms. Petty appeal. We will affirm the trial-court

judgment.

THE CONTROVERSY

In 1934, the State committed Opal Petty, on her father's

petition, to the Austin State Hospital. She was then age 16. She

remained in the hospital until 1971, when the authorities

transferred her to the San Angelo State School, an institution for

the mentally retarded. Ms. Petty remained in the State School

until 1985 when authorities "furloughed" her to a foster home,

then, four months later, to the home of her niece and nephew, Linda

Kauffman and Herbert Clinton Denson.

At the time of her commitment to the State Hospital in

1934, physicians diagnosed Ms. Petty as "hebephrenic

schizophrenic." 1 During the 37 years that followed, however,

hospital employees gave various appraisals of Ms. Petty's

condition, ranging from mentally ill to not mentally ill, and from

mildly mentally retarded, to moderately mentally retarded, to not

mentally retarded at all.

While Ms. Petty alleged numerous misdeeds and omissions

on the part of hospital personnel, she complained basically that

she was wrongfully confined because she was neither mentally ill

nor mentally deficient and did not receive any meaningful hearings

on her continued commitment; and, she complained that the long

period of "confinement" without "commonly accepted psychiatric

care, treatment, . . . therapy," or training deprived her of living

skills she had before being institutionalized, as well as skills

that she would have developed but for her confinement. Allegedly,

the only "therapy" Ms. Petty received during her years at the State

Hospital was 35 years of work in the hospital laundry at a salary

of $ 2.00 per week. Ms. Petty also complained of the failure of

State Hospital employees to help her obtain work outside the

hospital or otherwise attempt to "restore her to a useful life in

society."

The authorities transferred Ms. Petty from the State

Hospital to the State School in San Angelo in 1971, following a

diagnosis of mental retardation that Ms. Petty alleged was

erroneous. Ms. Petty made substantially the same factual

allegations regarding her 14-year residence from 1971 until 1985 in

the San Angelo State School as she did about her period in the

State Hospital, i.e., that her involuntary confinement was

unlawful, and that "unreasonable restraint" and "lack of treatment"

prevented her from realizing her developmental potential.

Ms. Petty pleaded, and the jury found, that Ms. Petty

suffered injury as a result of the negligence of agency personnel

"consider[ing] only their use or misuse of . . . treatment/

habilitation plans, mental status exams, tests, evaluations,

diagnoses, interdisciplinary team staffing reports, [and] progress

notes."

The trial judge limited Ms. Petty's recovery to injuries

resulting from negligence occurring after January 1, 1970, the

effective date of the Texas Tort Claims Act, Tex. Civ. Prac. & Rem.

Code Ann. § 101.001 -.109 (1986 & Supp. 1991) ("the Act"); see

§ 101.061 of the Act.

The jury found Ms. Petty's damages to be $ 505,000, and

the trial court reduced the damage award to $ 250,000 in accordance

with the limit established in § 101.023(a) of the Act.

GOVERNMENTAL IMMUNITY

Because the Department is an entity of the State, within

the doctrine of governmental immunity, Ms. Petty was obliged to

establish legislative consent to suit, see Missouri Pacific R. Co.

v. Brownsville Nav. Dist., 453 S.W.2d 812, 813 (Tex. 1970), Hosner

v. De Young, 1 Tex. 764, 769 (1847), and a legislative waiver of

immunity from liability. Missouri Pacific , 453 S.W.2d at 813 . 2

The legislature has expressly consented to suit in

§ 101.025(b) of the Act ("A person having a claim under this

chapter may sue a governmental unit for damages allowed by this

chapter."). The legislature has expressly waived immunity from

liability, in § 101.025(a), "to the extent of liability created by"

the Act. The waiver extends to the following injuries described in

§ 101.021:

(1) property damage, personal injury, and death

proximately caused by the wrongful act or omission or the

negligence of an employee acting within his scope of

employment if:

(A) the property damage, personal injury, or

death arises from the operation or use of a

motor-driven vehicle or motor-driven

equipment; and

(B) the employee would be personally liable to

the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or

use of tangible personal or real property if the

government unit would, were it a private person, be

liable to the claimant according to Texas law.

(Emphasis added).

In order to place her claim within the statute, Ms. Petty

was obliged to prove, by a preponderance of the evidence, the

elements of common-law negligence plus an additional element--that

the negligence alleged involved "a condition or use of tangible

personal . . . property." See § 101.021 of the Act; Salcedo v. El

Paso Hosp. Dist., 659 S.W.2d 30, 33 (Tex. 1983).

In the present case, the trial court submitted Question

2 to the jury as follows:

From 1970 through 1985, was the negligence, if any, of

any agency personnel a proximate cause of any injury to

Opal Petty?

For the purposes of question 2 only, in determining

negligence, if any, of agency personnel, consider only

their use or misuse of medical records, staff meeting

results, interdisciplinary team staffing reports,

progress notes, individualized treatment/habilitation

plans, mental status exams, tests, evaluations and

diagnoses.

The jury answered "yes" with respect to the use by agency personnel

of individualized treatment/habilitation plans, mental-status

exams, tests, evaluations, diagnoses, interdisciplinary team-staffing reports, and progress notes. They answered "no" regarding

any use of medical records and staff-meeting results.

In its first point of error (subpoint A), the Department

contends the trial court erred in submitting question 2 to the jury

and in failing to disregard the jury's answer to that question and

to Question 14, a related question about damages, because, the

Department contends, the individualized treatment/habilitation

plans, mental-status exams, tests, evaluations, diagnoses,

interdisciplinary team-staffing reports, and progress notes are not

"tangible personal property" within the meaning of § 101.021(2) of

the Act. The Department does not complain of the jury's finding

that Ms. Petty sustained an "injury."

The Department relies on Robinson v. City of San Antonio,

727 S.W.2d 40 (Tex. App. 1987, writ ref'd n.r.e.). In Robinson ,

the plaintiff alleged that a police officer's failure to arrest

Mr. Robinson, after Mrs. Robinson called and requested help during

a domestic crisis, constituted misuse of a protective order that a

district court had issued. The San Antonio Court of Appeals held

that the protective order was not tangible property within the

meaning of the Act; it was, rather, a written memorial of a

decision and pronouncement of a district court, and the fact that

it had been reduced to a tangible writing did not make it tangible

property within the meaning of § 101.021(2). Id . at 43.

By analogy to Robinson , the Department argues that the

various items listed in Question 2 are not "tangible personal

property," but simply written memorials by employees of their

intellectual observations and decisions concerning Ms. Petty:

(1) The "individualized treatment/habilitation plans"

merely record decisions, taken in Ms. Petty's case by the

interdisciplinary team, concerning the kind of treatment she should

receive.

(2) The "mental status exams" administered to Ms. Petty

were simply interviews by psychiatrists that may or may not have

been reduced to writing.

(3) The standardized tests 3 administered to Ms. Petty at

the state school and the test results were merely aids employed in

reaching decisions regarding her treatment.

(4) The "evaluations" and "diagnoses" simply express the

subjective judgments reached and decisions taken by physicians in

Ms. Petty's case.

(5) The "interdisciplinary team staffing reports" reflect

only the subjective judgments of mental-health professionals

regarding Ms. Petty's treatment.

(6) The "progress notes" merely record the staff

employees' subjective observations of Ms. Petty.

The Act does not define "tangible property." We are

bound, however, by the supreme court's rationale and interpretation

of the phrase in Salcedo , 659 S.W.2d at 33 . 4 In Salcedo , the

plaintiff's husband died of a heart attack after his treating

physician had released him from a public hospital. The plaintiff

alleged that the physician and staff of the hospital "misused the

equipment and tangible property . . . by improperly reading and

interpreting the electrocardiogram graphs and charts produced by

such equipment." The supreme court held that the plaintiff's

pleadings alleged an injury caused by "the negligence of the

hospital district's employees in the use of tangible property" and

therefore stated a cause of action under the Act. Salcedo , 659

S.W.2d at 32-33 .

The Department attempts to distinguish the

electrocardiogram chart in Salcedo from the notes, reports,

evaluations, and diagnoses in the present case. The Department

argues that an electrocardiogram mechanically records tangible body

signals, i.e. the actions of the heart, while the papers in

Ms. Petty's case are mere "memorialization of human judgment and

decision-making." We cannot see any material distinction between

a physician's interpretation of the paper reflecting the impulses

of the heart in Salcedo and the employees' interpretation of the

papers reflecting Ms. Petty's responses to questions and the

staff's observations of her physical and emotional behavior. The

physician acted or failed to act on the basis of one paper in

Salcedo ; the evidence shows that the employees in Ms. Petty's case

acted and failed to act on the basis of the various documents

mentioned above. We therefore hold, pursuant to Salcedo , that the

individualized treatment/habilitation plans, mental status exams,

evaluations, diagnoses, interdisciplinary team staffing reports,

and progress notes constitute tangible property within the meaning

of § 101.021(2) of the Act.

With respect to the standardized tests (the three

verbally administered I.Q. tests and the written achievement test),

we distinguish the "blank" tests from those which were in fact

administered to Ms. Petty. 5 We hold the latter are tangible

property within the meaning of Salcedo : the tests taken by

Ms. Petty recorded her answers to oral and written questions and

the test administrators' observations of Ms. Petty's behavioral

responses to oral instructions. We cannot distinguish these tests

from the electrocardiograph in Salcedo . With respect to the

"blank" tests, we need not decide whether they constitute tangible

property within the Tort Claims Act; the Department did not request

a jury question distinguishing between the two forms of tests.

The Department raises another argument in point of error

1 (subpoint B). Even if the aforementioned items constitute

tangible personal property, the Department contends, "there was no

evidence to show a use of these items of property in a manner which

proximately caused" Ms. Petty's injury. The Department contends

that any injuries Ms. Petty suffered resulted from errors in

judgment by those who treated her; in the Department's view, the

articles of tangible property were merely incidental to the

transactions and not a proximate cause of any injury to Ms. Petty.

See Lowe v. Texas Tech University, 540 S.W.2d 297, 301 (Tex. 1976)

(Greenhill, J., concurring).

We believe the issue is controlled by Salcedo . The

Salcedo court stated:

[T]he proximate cause of the damages for death or

personal injury must be the negligence or wrongful act or

omission of the officer or employee acting within the

scope of his employment or office. The negligent

conduct, however, must involve "some condition or some

use" of tangible property under circumstances where there

would be private liability.

Salcedo , 659 S.W.2d at 33 (emphasis added).

The Supreme Court did not indicate that the word

"involve" should have any meaning other than its meaning in

ordinary usage: "to roll up in itself so as to gather in, embrace,

or comprehend; to include ." Webster's New International

Dictionary, at 1307 (2d Ed. 1950) (emphasis added). Thus, under

Salcedo , the tangible personal property itself need not be a

proximate cause of the injury; the use of such property need only

be involved or included in any act or omission by the employee

which the jury finds to be negligent and a proximate cause of the

injury. That the Legislature has reenacted the Act without

altering the language in § 101.021 waiving governmental immunity in

the case of "a condition or use" of tangible property indicates a

legislative adoption of the construction in Salcedo . Robinson v.

Central Texas MHMR Center, 780 S.W.2d 169, 171 (Tex. 1989).

Jury Question 2 inquired whether the negligence, if any,

of agency personnel, considering use or misuse of the enumerated

items, was a proximate cause of Ms. Petty's injury. We hold the

question constituted a proper inquiry under § 101.021(2) of the Act

and Salcedo , 659 S.W.2d at 33 ; and, consequently, Ms. Petty was not

required to establish that a use or misuse of tangible property

itself proximately caused her injuries. Accordingly, we overrule

the Department's point of error 1(B).

False Imprisonment

In its first point of error (subpoint C), the Department

contends the trial court erred in submitting Question 2 to the jury

(and in failing to disregard the jury's answer to that question and

to a related question on damages) because Ms. Petty's cause of

action was actually one for false imprisonment; thus her suit was

barred by governmental immunity, because § 101.057 of the Act

expressly excludes claims arising out of false imprisonment from

the scope of the statutory waiver of immunity.

The elements of false imprisonment are (1) willful

detention, (2) without consent, and (3) without authority of law.

Sears, Roebuck & Co. v. Castillo, 693 S.W.2d 374, 375 (Tex. 1985);

James v. Brown, 637 S.W.2d 914, 918 (Tex. 1982). 6

Ms. Petty indeed pleaded that her confinement was

willful, involuntary, and unlawful (because Department employees

failed to meet statutory and constitutional requirements for

involuntary confinement). Ms. Petty also pleaded that, "because of

[the] years of confinement, [she] retreated to stereotyped behavior

typically found in a person institutionalized in a prison-like

environment." Moreover, Jury Question 1 inquired whether Ms. Petty

"sustain[ed] any injury as a result of her confinement."

In addition to the elements of false imprisonment,

however, Ms. Petty alleged Department employees were negligent in

their treatment of her and in their failure to treat her.

Ms. Petty pleaded that "[d]efendants . . . subjected [her] to a

continued pattern and course of treatment of unreasonable restraint

and lack of minimally adequate training or habilitation,"

preventing Ms. Petty from acquiring those skills which she would

have developed had she not been institutionalized. She pleaded

further that "[the] [d]efendants' negligence included their failure

to develop and supervise the development of . . . an appropriate

written individualized treatment plan and [their improper

supervision of the development and use of] that plan to provide

[Ms.] Petty with adequate treatment and habilitation."

Section 101.057(2) excludes from the Act any claim

"arising out of assault, battery, false imprisonment, or any other

intentional tort . . . ." (Emphasis added). The emphasized phrase

implies that the exclusion applies only to intentional torts of

false imprisonment. The trial court did not submit that theory to

the jury and the judgment does not rest thereon. Rather, the

judgment rests upon the jury's answer to Question 2, which inquired

whether any negligence by Department personnel was a proximate

cause of injury to Ms. Petty. Thus, it is immaterial that the

negligence found by the jury, and any attendant injury, occurred in

the context of her confinement. Nothing in the Act indicates that

the Legislature intended to exclude from the waiver persons who are

negligently injured while in a state of confinement, whether lawful

or unlawful. We therefore overrule subpart C of the Department's

first point of error.

BROAD-FORM QUESTIONS

In its second point of error, the Department contends the

trial court erred in submitting Question 2 to the jury and in

failing to disregard the jury's answer to Question 2. The

Department argues that the "question allows a finding of negligence

based on the use of the enumerated property by any one of several

hundred employees during a fifteen-year period without clearly

establishing proximate cause." We hold the Department failed to

preserve the point for appellate review. Tex. R. App. P. Ann.

52(a) (Pamph. 1991).

To preserve the point, the Department was required to

object to the charge specifically on the grounds raised on appeal.

See Tex. R. Civ. P. Ann. 274 (Supp. 1991). The only related

objection we find in the record is this:

Defendants also complain that there is no notice of which

agency personnel Plaintiff seeks to hold liable over the

15 years in which the Texas Tort Claims Act is in effect.

Such failure makes it impossible for a court of appeals

to determine whether there is sufficient evidence to

support a finding of negligence under this question.

This question basically invites the jury to search and to

guess at and to just hang liability on some unknown

person and -- using -- doing some unknown thing at some

unknown time.

We find in the foregoing no complaint that Question 2 was

erroneous because it allowed the jury to find liability as to any

number of unnamed people without establishing proximate cause.

Rather, the objection appears to encompass two complaints: (1) that

the pleadings were deficient because they failed to give the

Department notice of the nature of the claims against it; and (2)

that the question invited the jury arbitrarily to assign negligence

to the Department without regard to the evidence. With respect to

the former contention, we believe the pleadings were sufficient. 7

The second contention is irrelevant because there is no evidence or

allegation that anyone except Department personnel, acting in the

scope and course of their employment, was involved in the

transactions upon which Ms. Petty recovered judgment.

Because the Department failed to preserve the assigned

error for our review, we overrule its second point of error.

ACTUAL NOTICE

Section 101.101(a) of the Act requires that a plaintiff

provide the State with written notice of any claim against it

not later than six months after the day that the incident

giving rise to the claim occurred. The notice must

reasonably describe:

(1) the damage or injury claimed;

(2) the time and place of the incident; and

(3) the incident.

Subsection (c) of § 101.101 provides that the notice requirements

of subsection (a) " do not apply if the governmental unit has actual

notice that death has occurred, that the claimant has received some

injury , or that the claimant's property has been damaged."

(Emphasis added). The jury found that the Department had actual

notice of Ms. Petty's injury. Thus, Ms. Petty was not obliged to

provide the Department with written notice containing the three

elements specified in § 101.101(a).

In its third point of error, the Department contends the trial

court erred in submitting Question 31, which inquired about actual

notice, because that question incorrectly instructed the jury about

the requirements of actual notice. The charge defined actual

notice as follows:

"Actual notice" is having actual information or it is,

once a reason exists to make inquiry, information about

those things which a reasonably diligent inquiry and

exercise of the means of information at hand would have

disclosed. A governmental entity may have notice through

its officers, agents, representatives or employees.

The Department asserts the definition is erroneous

because it did not require the jury to find that Department

personnel had knowledge of the time, place, and nature of the

injury as § 101.101(a) of the Act required. We reject the

argument.

The relevant statute is not § 101.101(a) but

§ 101.101(c). The latter requires only that the governmental

entity have actual notice that "the claimant has received some

injury," and expressly states that "[t]he notice requirements

provided or ratified and approved by [Subsection (a)] do not apply

if the governmental unit has actual notice" of the injury.

(Emphasis added). See also Bowling v. City of Port Arthur, 522

S.W.2d 270, 273 (Tex. Civ. App. 1975, writ ref'd n.r.e.).

An interpretation that subsection (c) required a finding

that the government agency had notice of the time, place, and

nature of the injury would contradict the text of the statute. To

interpret the statute as the Department does would be to add to the

statute, through implication, elements not required by the

unambiguous text of subsection (c). We are forbidden to resort to

interpretation by implication when the legislative intent can be

gathered from a reasonable interpretation of the language of the

statute. Commonwealth of Massachusetts v. United N. & S.D. Co.,

168 S.W.2d 226, 229 (Tex. 1942).

We hold that actual notice under § 101.101(c) need not

include actual notice of the "time, place, and manner" of the

injury. The trial court was obliged to submit only "such

instructions and definitions as shall . . . enable the jury to

render a verdict." Tex. R. Civ. P. Ann. 277 (Supp. 1991); Johnson

v. Zurich General Accident & Liability Ins. Co., 205 S.W.2d 353,

353-54 (Tex. 1947). Under this rule and our holding, the

definition of actual notice was not deficient because it failed to

include the elements of time, place, and manner of the injury which

are part of the written notice requirement of § 101.101(a) of the

Act.

Our holding is consistent with the purpose behind the

actual notice requirement -- "to enable the [governmental entity]

to investigate while facts are fresh and conditions remain

substantially the same." City of Houston v. Torres, 621 S.W.2d

588, 591 (Tex. 1981). If government-agency personnel have actual

notice of an injury, they are necessarily in a position to inquire

as to the details of the time, place, and manner of the injury. In

the present case, the Department was in possession of Ms. Petty's

medical records and other case-history documentation. It was

therefore in a better position than Ms. Petty to glean information

about the particulars of her injuries.

We overrule the Department's third point of error.

In its fourth point of error, the Department contends the

trial court erred in denying its motion for directed verdict and

for judgment notwithstanding the verdict because, "even if the

submission of question 31 was correct, the jury had no credible

evidence on which to base its finding of actual notice."

We are instructed, in addressing no-evidence points of

error, to examine the evidence in the light most favorable to Ms.

Petty's claim, ignoring all contrary evidence and inferences. See

Powers & Ratliff, Another Look at "No Evidence" and "Insufficient

Evidence" , 69 Texas L. Rev. 515, 522 (1991); Calvert, "No Evidence"

and "Insufficient Evidence" Points of Error , 38 Texas L. Rev. 361,

364 (1960). We may not hold the evidence legally insufficient

unless we are persuaded that a "vital fact may not reasonably be

inferred from the meager facts proved in the particular case."

Calvert, at 365.

We disagree with the Department's contention that the

record evidence was so scant that the jury could not reasonably

have "inferred from the meager facts proved" that Department staff

were aware of some injury to Ms. Petty between January 1, 1970, the

effective date of the Tort Claims Act, and May 23, 1986, six months

after Ms. Petty's furlough from the San Angelo State School.

In support of its position that Department staff had

notice of some injury to Ms. Petty during the relevant time,

Ms. Petty invites our attention to defendant's exhibit 60, an

"interdisciplinary team staffing report" prepared in 1978 by

Delbert Mitchell, a social worker assigned to Ms. Petty's case at

the San Angelo State School. The report contains the following

reference: "Opal has a mental health commitment dated 5-6-34 which

is not a legal commitment to San Angelo Center. This was explained

to her to the extent that she was able to comprehend it. Her civil

rights were also explained to her in the same manner."

The Department rejoins by pointing to testimony showing

that notations in hospital records, indicating "illegal

commitment," were "commonplace in 1978 and [were] acted upon

through the recommitment process for all persons in question." The

Department argues that this testimony nullifies any reasonable

inference that the notation indicated injury. We disagree. The

jury were free to reject the nullification inference because it is

no more than a possible inference from the evidence. We cannot say

that it would have been unreasonable for the jury to conclude that

a notation that Ms. Petty's commitment "is not a legal commitment

to San Angelo Center" put the Department on notice of some injury

to Ms. Petty. In fact, we can hardly imagine clearer notice that

Ms. Petty had incurred a legal injury. A legal injury is an injury

giving a cause of action by reason of its being an invasion of a

plaintiff's legal right, even though the injury may not be

"practically harmful at the time" or may be "slight in comparison

to what may develop subsequently." See Zidell v. Bird, 692 S.W.2d

550, 555 (Tex. App. 1985, no writ). In the present case, the jury

could reasonably have inferred that the notation by Ms. Petty's

caseworker, in the 1978 report, that Ms. Petty's commitment in 1934

was "not a legal commitment to San Angelo Center," indicated that

Department personnel, namely Mr. Mitchell, had notice of some legal

injury to Ms. Petty, i.e., the illegal confinement, regardless of

whether her behavior at that time indicated any symptoms of

"institutionalization syndrome."

In light of the 1978 notation, we cannot say that the

evidence was legally insufficient to support the jury's finding

that Department employees had actual notice of Ms. Petty's injury

between January 1, 1970, and May 23, 1986. We overrule the

Department's fourth point of error.

COMMENT ON THE WEIGHT OF THE EVIDENCE

In its fifth point of error, the Department avers the

trial court erred in overruling its objection to the word

"confinement" in Jury Questions 1 and 14 because use of the word

constituted a comment on the weight of the evidence. The trial

court submitted Question 1 as follows:

Did Opal Petty sustain any injury as a result of her

confinement?

Question 14, which inquired about damages, was preceded by the

following instruction:

If, in answer to Question 2 . . ., you have found that

the conduct of . . . agency personnel . . . proximately

caused any injury to Opal Petty during her confinement,

then answer Question 14.

The Department contends the use of the word "confinement" in

Question 1 and Question 14 assumed as true a controverted fact--that there was an alternative placement for Ms. Petty that was less

restrictive than the State Hospital or the State School. By using

the word "confinement," the Department asserts, the trial court

characterized Ms. Petty's care as "restrictive" and "imprisoning"

and thus nudged the jury toward a finding of liability.

Ms. Petty rejoins that the parties did not dispute

whether Ms. Petty was "confined" in the neutral sense of describing

her physical surroundings following her commitment.

We do not believe the trial court's use of the word

"confinement" influenced the jurors' minds on the controlling

element of the interrogatory and amounted "to such a denial of [the

Department's] rights . . . as was reasonably calculated to cause

and probably did cause rendition of an improper judgment." See

Tex. R. App. P. Ann. 81 (Pamph. 1991); Texas Employers Ins. Ass'n

v. McKay, 210 S.W.2d 147, 148-49 (Tex. 1948); Russell v. Great

American Indemnity Co., 94 S.W.2d 409, 410 (Tex. 1936).

Courts use the word "confine" to indicate a restriction

on a person's ability to leave a specified area at will, but the

word does not always connote imprisonment. See American Casualty

Co. v. Horton, 152 S.W.2d 395, 399 (Tex. Civ. App. 1941, writ

dism'd), and Southern Surety Co. v. Diercks, 250 S.W. 755, 755-56

(Tex. Civ. App. 1923, writ ref'd). (In actions on insurance

policies covering illness which "confines the insured within the

house," the trial court did not err by instructing the jury that

"[c]onfinement to the house does not necessarily mean a constant

literal restraint within the house; and an occasional visit to the

office of her physician for treatment, or taking exercise and

walking as a part of the plaintiff's treatment would not

necessarily mean that she was not at such times confined.").

We do not believe the use of the word "confinement" in

Question 1 amounted to an impermissible comment: the question

asked whether Ms. Petty was injured as a result of her confinement.

The question does not assume any injury, the controlling factor.

Nor do we believe use of the word "confinement" in the instructive

paragraph of Question 14 amounted to an impermissible comment on

the weight of the evidence. The relevant sentence instructed the

jury that they should answer the damages question (Question 14)

only if they found the conduct of any agency personnel "proximately

caused any injury to Opal Petty during her confinement." (Emphasis

added). The question did not assume that any injury resulted from

the confinement or that agency personnel were negligent in their

diagnoses or care of Ms. Petty. We therefore overrule the

Department's fifth point of error.

PROSPECTIVE-PAYMENT PROGRAM

In its sixth point of error, the Department avers the

trial court erred by excluding evidence about the Department's

Prospective Payment Program, a program through which the Department

pays money to designated community centers on behalf of particular

clients. The Department pays $ 55.60 per day (or $ 20,294.00 per

year) to the Concho Valley Center for Human Advancement as

compensation for certain services that the Concho Valley Center

provides Ms. Petty.

In its "Answer to Plaintiffs [sic] Sixth Amended Original

Petition," the Department requested "as a means of setoff, credit

on any judgment rendered in this cause in the amount" the

Department has paid and expects to pay in the future to the Concho

Valley Center for Ms. Petty's care. In its offer of proof, which

the trial court "overruled," the Department elicited testimony from

its Deputy Commissioner for Mental Retardation Services. He

testified, in effect, that the Department has an agreement with the

Concho Valley Center whereby it pays the Concho Valley Center

$55.60 per day in return for the Center's providing certain

services to Ms. Petty. 8

On appeal, the Department avers the trial court

erroneously concluded that the collateral-source rule prohibited

the introduction of evidence of the payment plan. We need not

reach that issue because we hold that evidence of the payment plan

was not relevant to a material issue in the lawsuit, and was

therefore inadmissible.

The Department attempted to introduce evidence of the

payment plan in support of its plea for a set-off against damages

awarded Ms. Petty. A set-off is a defendant's counterdemand

against a plaintiff arising out of a transaction extrinsic of the

plaintiff's cause of action. Weisz v. Horton, 148 S.W.2d 219, 221

(Tex. Civ. App. 1941, writ dism'd judgm. cor.); 80 CJS Set-off and

Counterclaim , § 3, at 7 (1953). The Department could not raise

such a claim unless it had grounds for a suit against Ms. Petty.

See Booth v. Chadwick, 154 S.W.2d 268, 272 (Tex. Civ. App. 1941,

writ ref'd). The state alleged no theory under which it had a

legal right to recover the relevant sums from Ms. Petty because she

was under a legal duty to pay them. 9 We therefore overrule the

Department's sixth point of error.

MS. PETTY'S CROSS-POINTS

DAMAGES LIMIT

In her first cross-point of error, Ms. Petty contends the

trial court erred by limiting her recovery to $250,000 after the

jury found damages in the amount of $505,000. The trial court

reduced Ms. Petty's award pursuant to § 101.023 of the Act, which

limits the state's liability "to money damages in a maximum amount

of $250,000 for each person and $500,000 for each single occurrence

for bodily injury or death." Ms. Petty argues that, because her

injuries were caused by successive occurrences of negligence, each

of which further injured her, the State was liable for damages in

the amount of $250,000 for each act of negligence involving use or

misuse of tangible property, of which the jury found 12.

Ms. Petty relies on Goose Creek Consol. v. Continental

Cas. Co., 658 S.W.2d 338 (Tex. App. 1983, no writ). That case

posed the question of whether two fires which destroyed two schools

at two different times constituted a single "loss occurrence" if

they were caused by the same arsonist. The insurance policy in

Goose Creek defined "loss occurrence" as "the total loss by perils

insured against arising out of a single event." Goose Creek , 658

S.W.2d at 340 . The court held that, where there are two fires at

two different places with two separate causal factors, there are

two "loss occurrences," regardless of whether the same arsonist

caused both fires. Id . at 341.

Goose Creek is distinguishable from the present case.

The two fires in that case were separate, there being no causal

connection between them. In the present case, on the other hand,

Ms. Petty alleged a single, ongoing, indivisible injury --"institutionalization syndrome" -- resulting from the totality and

orchestration of numerous negligent acts and omissions on the part

of Department employees over many years. Unlike the two separate

fires in Goose Creek , the negligent acts and omissions of

Department employees are not separable according to which caused a

particular part of Ms. Petty's total injury, and no evidence

purported so to distinguish her injuries.

In order to recover the statutory limit for each

occurrence of negligence, Ms. Petty was required to present

evidence in such a fashion as would allow the jury to link

particular incidents of use or misuse of property to distinct

injuries and submit jury questions to elicit findings attributing

particular injuries to specific acts of negligence. This she did

not do and probably could not have done given the apparent nature

of her injury. Because of the indivisible nature of Ms. Petty's

injury and the absence of any attempt by her counsel to obtain jury

findings linking particular negligent acts or omissions with

distinct injuries, we hold the trial court properly limited Ms.

Petty's recovery to $250,000 in accordance with § 101.023 of the

Act.

We overrule Ms. Petty's first cross-point of error.

CONSTITUTIONAL CHALLENGES

In her second cross-point of error, Ms. Petty asserts the

trial court violated the open-courts provision and equal-protection

clause of the state constitution by limiting Ms. Petty's damages to

$250,000. See Tex. Const. Ann. art. I, §§ 3, 13 (1984).

Open Courts

The open-courts provision of the State Constitution

ensures that those bringing common-law causes of action will not be

denied unreasonably a right to redress for their injuries. Hanks

v. City of Port Arthur, 48 S.W.2d 944, 946 (Tex. 1932). To

establish that a statute violates the open-courts provision, a

plaintiff must show that (1) she has a "cognizable common law cause

of action that is being restricted" and (2) the restriction is

unreasonable or arbitrary when balanced against the purpose of the

statute. Lucas v. U.S., 757 S.W.2d 687, 690 (Tex. 1988); Sax v.

Votteler, 648 S.W.2d 661, 666 (Tex. 1983).

In the present case, Ms. Petty cannot meet the first

element of the Sax test because she cannot show a "cognizable

common law cause of action." Hers is purely a creature of statute

which exists solely by virtue of the Act. See Rose v. Doctors

Hosp., 801 S.W.2d 841, 845 (Tex. 1990); Tarrant Cty. Water Control

v. Crossland, 781 S.W.2d 427 , 439 (Tex. App. 1989, writ denied);

Tarrant County Hosp. Dist. v. Ray, 712 S.W.2d 271, 273 (Tex. App.

1986, writ ref'd n.r.e.). We therefore hold that the damages limit

of § 101.023 of the Act does not violate the open-courts provision

of Art. I § 13 of the state constitution.

Equal Protection

Ms. Petty also argues that the damages limit of § 101.023

violates her right to equal protection under Tex. Const. Ann. art.

I, § 3 (1984), because it allows full compensation for plaintiffs

injured by negligent acts or omissions of state employees where

damages amount to $250,000 or less, but permits those suffering

damages greater than $250,000 only partial compensation for their

injuries. She argues in substance that the Legislature could not

fix any such dividing line and was obliged to waive immunity as to

all sums or none at all to satisfy the equal-protection

requirement. We reject the theory.

When neither a "suspect classification" nor interference

with a "fundamental right" is involved, we must sustain a

challenged statutory classification if it is "rationally related to

a legitimate state interest." See Spring Branch I.S.D. v. Stamos,

695 S.W.2d 556, 559 (Tex. 1985), appeal dism'd, 475 U.S. 1001

(1986). The purpose behind the damages cap in the Act is to

"preserve governmental funds." Tarrant County Hosp. Dist. , 712

S.W.2d at 273 .

We cannot say that the limitation on damages recoverable

from the state is "wholly irrelevant to" the legislative goal of

"preserving governmental funds." See McGowan v. Maryland, 366 U.S.

420, 425 (1961); Mass. Indem. & Life v. Tex. State Bd. of Ins., 685

S.W.2d 104, 110 (Tex. App. 1985, no writ). We therefore decline to

hold that there is no rational relation between the discrimination

in the Act among plaintiffs based on the amount of their claims

and the legitimate legislative goal of preserving state funds.

We overrule Ms. Petty's second cross-point of error.

PRE-JUDGMENT INTEREST

In her third cross-point of error, Ms. Petty contends the

trial court erred by refusing to add pre-judgment interest to her

damages award.

The Supreme Court of Texas has held that the Act

prohibits the award of pre-judgment interest in a suit against the

state if the addition of such interest to the damages award would

result in a recovery in excess of the maximum allowed by § 101.023

of the Act. See Weller v. State, 682 S.W.2d 234 (Tex. 1984). Ms.

Petty argues that the enactment of Tex. Rev. Civ. Stat. Ann. art.

5069-1.05, § 6(a) (Supp. 1991), which provides that "[j]udgments in

wrongful death, personal injury, and property damage cases must

include prejudgment interest," renders Weller obsolete, as the

holding in Weller depended on the fact that the plaintiff in that

case "had no statutory right to prejudgment interest, but rather

sought such interest as an element of damages under common law."

Weller , 682 S.W.2d at 234 . With the enactment of art. 5069-1.05

§ 6(a), Ms. Petty contends, she acquired a statutory right to pre-judgment interest, and therefore neither Weller nor § 101.023 is a

bar to her recovery of pre-judgment interest. We disagree.

Because suits against the State are generally barred by

governmental immunity, Ms. Petty's cause of action existed solely

by virtue of § 101.021 of the Act. See City of Austin v. Cooksey,

570 S.W.2d 386, 387 (Tex. 1978). As a condition of its waiver of

immunity under the Act, the legislature limited the State's

liability to $250,000 per person per occurrence. Ms. Petty

therefore had no "statutory right" to any recovery in excess of

this limit.

Ms. Petty rejoins by the following theory. She states in

her brief that "damages" consist in "the sum of money the law

awards as pecuniary compensation . . . for an injury done or a

wrong sustained as a consequence of either a breach of a

contractual obligation or a tortious act," citing McRae v. Lindale

Independent School District, 450 S.W.2d 118, 124 (Tex. Civ. App.

1970, writ ref'd n.r.e.). Consequently, merely adding pre-judgment

interest to the maximum "damages" allowed by the Act would not be

an addition of "damages," but another sum derived from multiplying

"damages" by an interest rate in calculating "the compensation

allowed by law for the . . . detention of money." Tex. Rev. Civ.

Stat. Ann. art 5069-1.01(a) (1987).

The theory is misconceived. Strictly speaking,

"interest" is a misnomer when used in reference to pre-judgment

"interest." The word "interest" is employed only for convenience

in speaking of "an element of damages necessary to the complete

indemnity of the injured party." Watkins v. Junker, 40 S.W. 11

(Tex. 1897), overruled on other grounds, Cavnar v. Quality Control

Parking, Inc., 696 S.W.2d 549, 553-54 (Tex. 1985). (Emphasis

added).

We hold the trial court did not err in refusing to award

pre-judgment interest in addition to Ms. Petty's recovery of the

maximum amount allowed by the Act. See Weller , 682 S.W.2d at 234 ;

Dept. of Hwys. & Public Transp. v. Bacon, 754 S.W.2d 279 , 282 (Tex.

App. 1988, writ denied).

In consequence, we overrule Ms. Petty's third cross-point

of error.

We therefore affirm the trial-court judgment. Because we

affirm the trial-court judgment, we need not address Ms. Petty's

"contingent" cross-points of error.

John E. Powers, Justice

[Before Justices Powers, Aboussie and Kidd]

Affirmed

Filed: August 28, 1991

[Publish]

FOOTNOTES

1 According to Ms. Petty's expert witness, Dr. Jefferson Nelson,

schizophrenia is a severe mental disorder that affects

thinking, perception, and interpersonal functioning. Symptoms

include auditory hallucinations, false beliefs that are not

alterable even in the face of reasonable evidence to the

contrary, and an inability to express emotion and feeling.

"Hebephrenic schizophrenia" is a "particularly disorganized

form of schizophrenia," and a patient with the disease may

not be able to communicate with others at all, as her speech

may be incoherent and her thoughts may leap from one thing to

another in no organized fashion.

2 An important corollary of immunity from liability is that the

state is generally not liable for the torts of its employees.

See Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex.

1976); Dillard v. Austin Indep. School Dist., 806 S.W.2d 589,

592 (Tex. App. 1991, writ requested). For a general discussion

of sovereign immunity, see Greenhill and Murto, Governmental

Immunity , 49 Texas L. Rev. 462 (1971).

3 These included the Slossin, WAIS, and Stanford-Binet tests,

all verbally administered "I.Q." tests, and the Wide Range

Achievement Text, a written examination designed to measure

levels of achievement in reading, spelling, and mathematics.

We do not understand the Robinson analogy insofar as these

tests are concerned, and the Department offers no further

explanation except as stated above.

4 We are aware that the cryptic language of § 101.021 has

resulted in conflicting opinions in the courts of appeal

regarding what constitutes tangible property within the

meaning of § 101.021. See, e.g. , City of Houston v. Arney,

680 S.W.2d 867, 874 (Tex. App. 1984, no writ) (Plaintiff who

had hysterectomy because clinic personnel failed to inform her

that pap smear results were positive stated a cause of action

within the Act by alleging injury resulting from the negligent

"keeping of files, records or other documentation and means of

notification, a use or condition of tangible personal

property."). Cf. Robinson , 727 S.W.2d at 43 (Protective order

held not to be tangible property within meaning of the Act.);

Montoya v. John Peter Smith Hosp., 760 S.W.2d 361, 364 (Tex.

App. 1988, writ denied) (In dicta, the court stated that a

blank triage slip did not constitute tangible property under

the Act.).

Definitions provided in judicial opinions are of little

assistance: Several courts have defined "tangible property"

as "property that is capable of being handled, touched, or

seen." See Robinson , 727 S.W.2d at 43 ; Lay v. Aetna Ins. Co.,

599 S.W.2d 684, 686 (Tex. Civ. App. 1980, writ ref'd n.r.e.).

5 Unlike the electrocardiograph in Salcedo , the "blank" tests do

not reflect the condition of the patient. Rather, they

resemble more closely the blank triage slips in Montoya . 760

S.W.2d at 364 .

6 We note that, unlike the Restatement Second of Torts, Texas

law places the burden of proving the unlawfulness of the

confinement on the plaintiff, rather than allowing the

defendant to raise legality as an affirmative defense. See

Restatement Second of Torts § 35, at 52 (1965).

FOOTNOTES (Cont'd.)

7 The Department avers that the broad form of the pleadings and

the jury questions, together with the nature of the proof

adduced, required the Department to defend against multiple

incidents from which the jury could have inferred negligence.

We disagree. The test under Tex. R. Civ. P. Ann. 45(b)(Supp.

1991) for adequacy of the pleadings is whether the pleading

gives the defendant fair notice of the claim against it. See

also 2 McDonald, Texas Civil Practice, § 5.05, at 10-16 (rev.

ed. 1982), citing Andrews v. Daniel, 240 S.W.2d 1018, 1020

(Tex. Civ. App. 1951, writ dism'd). Fair notice has been

given if "the pleadings are sufficiently specific that

'. . . an opposing attorney of reasonable competence, with the

pleadings before him, can ascertain the nature and the basic

issues of the controversy and the testimony probably

relevant.'" Rodriguez v. Yenawine, 556 S.W.2d 410, 414 (Tex.

Civ. App. 1977, no writ), citing, 2 McDonald, § 5.05, at 13.

Furthermore, in ruling on the adequacy of pleadings, a judge

must bear in mind "the positions of the parties and such

pertinent factors as their means of knowledge of the facts and

access to the necessary evidence." 2 Mc Donald, § 5.05, at 12.

In the present case, Ms. Petty made numerous factual

allegations regarding which acts she claimed were negligent.

For example, Ms. Petty alleged Department personnel

subjected [her] to continuing wrongful restraint

and continuing lack of minimally adequate

treatment, training, and habilitation because of

which Ms. Petty never developed those skills which

she would have developed had she not been

institutionalized. Defendants, their employees and

those acting in concert with them or at their

direction, prevented Opal Petty from realizing her

developmental potential and thus proximately caused

her serious adverse functional development.

Ms. Petty rather specifically described the nature of her

injury in the portion of her petition labeled "Sixth Cause of

Action (Negligence)" as the

loss of liberty and good health, serious and

aggravated on-going regression in intellectual and

daily living skills, and lost opportunities to

develop those skills which she would have otherwise

developed but for her confinement and which are

necessary to live outside of an institution without

supervision, all as a direct result of the

negligent acts of Defendant TDMHMR's employees.

Those acts included the negligent use and misuse of

tangible personal or real property, as well as the

negligent supervision of the use of such personal

or real property. [The petition then enumerates

specific items of property allegedly used.]

FOOTNOTES (Cont'd.)

7 Continued:

Given the Department's superior ability to ascertain

information about the names of specific Department employees

and specific acts of negligence and the fact that Ms. Petty's

ability to ascertain the existence of specific instances of

negligent conduct and the identities of particular employees

depended on the record-keeping of the defendant, we do not

believe Ms. Petty's pleadings were lacking in specificity or

in any way failed to give the Department fair notice of the

claims against it.

8 The Department also offered evidence that Ms. Petty's foster-care provider receives $8.35 per day from the Center and

testimony by the Director of Mental Retardation Services at

the Concho Valley Center stating the Center expended an

estimated $21,424.88 on Ms. Petty's care from December 1985

through August 1988 for case-management services; workshop

services; psychological, medical, and dental consultants; and

a comprehensive diagnostic and evaluation assessment.

9 Acts which are expressly or impliedly authorized by law cannot

be made the basis of a claim for damages. Farnsworth v.

Massey, 365 S.W.2d 1, 5 (Tex. 1963). Presumably, the payments

to the Concho Valley Center were lawful; the Department does

not contend otherwise.