the University of Texas Health Science Center at San Antonio v. Linda M. Bruen

Nos. 04-01-00520-CV & 04-01-00792-CV

THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER

AT SAN ANTONIO ,

Appellant

v.

Linda M. BRUEN,

Appellee

From the 37th Judicial District Court, Bexar County, Texas

Trial Court No. 99-CI-13572

Honorable Robert L. Eschenburg, II, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Concurring opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: June 28, 2002

REVERSED AND DISMISSED FOR LACK OF JURISDICTION

The University of Texas Health Science Center at San Antonio appeals the trial court's denial

of its pleas to the jurisdiction asserting sovereign immunity. We reverse the trial court's orders and

dismiss Bruen's claims for lack of jurisdiction. Texas Dept. of Transp. v. Ramirez , No. 01-0432,

2002 WL 709845, at *3 (Tex. Apr. 25, 2002); Texas Dept. of Transp. v. City of Floresville Elec.

Power & Light System , 53 S.W.3d 447, 457 (Tex. App.--San Antonio 2001, no pet.).

Standard of Review

We review a trial court's ruling on a plea to the jurisdiction de novo. See Mayhew v. Town

of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998), cert. denied , 526 U.S. 1144 (1999). In determining

whether jurisdiction exists, we accept the allegations in the pleadings as true and construe them in

favor of the pleader. Texas Ass'n of Bus. v. Texas Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993).

We must also consider evidence relevant to jurisdiction when it is necessary to resolve the

jurisdictional issue raised. Bland I.S.D. v. Blue , 34 S.W.3d 547, 555 (Tex. 2000).

Factual and Procedural Background

Linda Bruen sued the University of Texas Health Science Center at San Antonio (UTHSC)

under the Texas Tort Claims Act (TTCA), alleging she slipped and fell off the unprotected edge of

a ramp while attending a nursing seminar at UTHSC's nursing school auditorium. UTHSC filed two

pleas to the jurisdiction based on sovereign immunity. The first plea was denied in part, and the

second was denied in its entirety. Specifically, the trial court denied UTHSC's pleas with respect to

Bruen's allegations that UTHSC: (1) "[f]ailed to have the rope in place that was normally used to

warn of and protect others from the ramp's edge"; and(2) "[t]he ramp and entrance failed to comply

with the American's [sic] [w]ith Disabilities Act." UTHSC filed this interlocutory appeal.

Dangerous Condition of Ramp

UTHSC contends Bruen's complaints relate to the dangerous condition of the ramp from

which she fell. UTHSC therefore asserts it has immunity under section 101.056 of the TTCA,

because the design of the auditorium and ramp is a discretionary act. We agree.

Applicable Law

Sovereign immunity is not waived under the TTCA for claims based on discretionary acts

and omissions. Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (Vernon 1997). This discretionary

function exception to the waiver of governmental immunity is designed to avoid judicial review of

governmental policy decisions. State v. Terrell , 588 S.W.2d 784, 787 (Tex. 1979). A governmental

unit is immune from liability if damage or injury results from the formulation of policy. Id. Whether

a government act is discretionary and within the exception to the waiver of immunity under the Act

is a question of law. See State v. Miguel , 2 S.W.3d 249, 251 (Tex. 1999) (per curiam).

Discussion

In her petition, Bruen alleged the design of the downward sloping auditorium ramp

constituted a dangerous condition and unreasonable risk of harm, because there was no

differentiation in color between the carpet on the ramp and the carpet covering the rest of the room.

She also claimed UTHSC failed to warn of the dangerous condition with a railing or other device

to prevent someone from stepping off the side of the ramp. In essence, Bruen's complaint is that the

auditorium ramp as originally designed constituted a dangerous condition. "Texas courts have

repeatedly held that 'design decisions' are discretionary, and therefore immunity is not waived under

the Act." Ramos v. Texas Dept. of Public Safety , 35 S.W.3d 723, 733 (Tex. App.-Houston [1st Dist.]

2000, pet. denied). Therefore, immunity is not waived under the Act. Id.

Bruen, nevertheless, maintains that UTHSC had a legal duty under the Americans with

Disabilities Act (ADA) to make structural changes to the facility after it was built, i.e., installing

edge protectors, curbs, walls, railings, or projection surfaces to prevent injuries like the one she

suffered. Bruen argues that its failure to do so was negligence per se and actionable under the TTCA

regardless of whether she qualifies as a disabled individual. In response, UTHSC argues that Titles

I and II of the ADA do not waive a state's immunity and, alternatively, that Bruen is not qualified

to assert a claim under the ADA. We agree.

Title II of the ADA applicable to public entities provides that no "qualified individual with

a disability shall, by reason of such disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public entity, or be subjected to discrimination

by any such entity." 42 U.S.C.A. § 12132 (West 1995). "Thus, to establish a violation of Title II,

[plaintiffs] must demonstrate: (1) that they are qualified individuals within the meaning of the Act;

(2) that they are being excluded from participation in, or being denied benefits of, services,

programs, or activities for which the [public entity] is responsible, or are otherwise being

discriminated against ... ; and (3) that such exclusion, denial of benefits, or discrimination is by

reason of their disability." Lightbourn v. County of El Paso , 118 F.3d 421, 428 (5th Cir. 1997), cert.

denied , Lightbourn v. Garza , 522 U.S. 1052 (1998). Without deciding whether the ADA waives

UTHSC's sovereign immunity under the TTCA, we conclude Bruen's argument that the cited

provisions of the ADA should apply regardless of whether she is disabled is without merit. We

therefore sustain UTHSC's first point of error.

Failure to Use Theater Rope

UTHSC next contends that Bruen's contentions regarding its failure to use a theater rope

allege a non-use of property, which is not actionable under the TTCA. We agree.

"UTHSC, as a branch of the University of Texas system, is a state agency shielded from suit

and liability by sovereign immunity." University of Texas Health Sci. Ctr. at San Antonio v. Mata

& Bordini, Inc. , 2 S.W.3d 312, 316 (Tex. App.-San Antonio 1999, pet. denied). "[F]or the

Legislature to waive the State's sovereign immunity, it must do so by clear an unambiguous

language." City of LaPorte v. Barfield , 898 S.W.2d 288, 291 (Tex. 1995). The Texas Tort Claims

Act provides that the State waives its sovereign immunity for "personal injury and death so caused

by a condition or use of tangible personal property or real property if the governmental unit would,

were it a private person, be liable to the claimant...." Tex. Civ. Prac. & Rem. Code Ann. §

101.021 (2) (Vernon 1997). However, sovereign immunity is not waived for a claim arising from the

non-use of personal property. See Kerrville State Hosp. v. Clark , 923 S.W.2d 582, 584 (Tex. 1996).

Bruen's allegation that her injuries were caused by UTHSC's failure to use the theater rope is similar

to "non-use" allegations rejected by the Supreme Court on other occasions. See, e.g., Kerrville State

Hosp. v. Clark , 923 S.W.2d 582, 585 (Tex. 1996) (failure to use injectable medication); Kassen v.

Hatley , 887 S.W.2d 4, 14 (Tex. 1994) (failure to provide medication). We therefore sustain

UTHSC's third point of error.

Negligent Implementation of Policy

In a related issue, UTHSC contends that because the cause of Bruen's injury was the

allegedly dangerous condition of the auditorium ramp, her attempt to characterize her suit as one

involving use of property must fail. Bruen responds, arguing that UTHSC's failure to use the theater

rope as required by University policy constituted negligent implementation of policy, which is not

entitled to protection under section 101.056 of the TTCA. We again disagree.

Even assuming Bruen's claim was for the negligent implementation of policy and procedure,

she has still failed to state a claim for which governmental immunity is waived under the TTCA.

Section 101.056 does not provide for waiver of governmental immunity; rather, this section provides

for an exception to any waiver of governmental immunity where the claim advanced involves the

formulation of policy. See City of Orange v. Jackson , 927 S.W.2d 784, 786-87 (Tex.

App.-Beaumont 1996, no writ). In other words, "a governmental entity's right of sovereign

immunity is [not] waived by the negligent implementation of policy ... if the death or injury involved

did not arise from the use or condition of tangible personal property or from the operation or use of

a motor-driven vehicle." Id. at 786 . Because Bruen cannot establish a waiver of immunity under

section 101.021, her claim of negligent implementation is unavailing. We therefore sustain UTHSC's

second point of error.

Conclusion

Because Bruen's allegations fail to establish a waiver of sovereign immunity, the trial court

erred in denying UTHSC's pleas to the jurisdiction. We therefore reverse the trial court's order and

dismiss Bruen's claims for lack of jurisdiction.

Sarah B. Duncan, Justice

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