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

> Texas Court of Appeals, 4th District (San Antonio) · June 28, 2002

URL: https://www.frixlaw.com/law-library/cases/2878022

## Case

- **Court:** Texas Court of Appeals, 4th District (San Antonio)
- **Decided:** June 28, 2002
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
Publish

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2878022. Public record. Not legal advice.