Spindletop MHMR v. Barbara Beauchamp, on Behalf of Alissa Humphrey

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-03-382 CV

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SPINDLETOP MHMR CENTER, Appellant

V.

BARBARA BEAUCHAMP, ON BEHALF OF ALISSA HUMPHREY, Appellee

On Appeal from the 136th District Court

Jefferson County, Texas

Trial Court Cause No. D-169,451

OPINION

Barbara Beauchamp filed suit as legal guardian on behalf of Alissa Humphrey for

personal injuries Humphrey sustained during her residency at Spindletop MHMR Center.

The trial court denied a plea to the jurisdiction filed by Spindletop. The issue is whether

governmental immunity from suit has been waived. Specifically, we are asked whether a

claim that bed sores were caused by a bed and other property, including "ulcer preventing

devices," involves an injury caused by a "use" of tangible personal property within the

meaning of section 101.021(2) of the Texas Tort Claims Act.

Governmental immunity bars suit against a governmental unit unless the State

expressly consents to the suit. Texas Dep't of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex.

1999). (1) Absent the State's consent to suit, a trial court lacks subject matter jurisdiction. Id.

The absence of subject matter jurisdiction may be raised by a plea to the jurisdiction. Bland

Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). We review the trial court's

decision to grant or deny a plea to the jurisdiction de novo. Mayhew v. Town of Sunnyvale ,

964 S.W.2d 922, 928 (Tex. 1998).

In deciding a plea to the jurisdiction, a court considers the plaintiff's pleadings and

the evidence offered by the parties relevant to the jurisdictional issue. Texas Natural

Resource Conservation Comm'n v. White , 46 S.W.3d 864, 868 (Tex. 2001); Bland Indep.

Sch. Dist. , 34 S.W.3d at 554-55 . We are to construe the pleadings liberally. See Texas Ass'n

of Bus. v. Texas Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993); Peek v. Equipment Serv.

Co. of San Antonio , 779 S.W.2d 802, 804-05 (Tex. 1989). If the petition does not

affirmatively demonstrate incurable defects in jurisdiction, the issue may be one of pleading

sufficiency, and the plaintiff may be afforded the opportunity to amend. County of Cameron

v. Brown , 80 S.W.3d 549, 555 (Tex. 2002) (citing to Peek , 779 S.W.2d at 804-05 ; Texas

Dep't of Corrections v. Herring , 513 S.W.2d 6, 9-10 (Tex. 1974)). But if the plaintiff's

pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction

should be granted. County of Cameron , 80 S.W.3d at 555 .

Beauchamp's pleadings include the following allegations:

Specifically, the injuries in this case, decubitus ulcers, were caused by the

negligent use of the bed and bedding, mattresses, garments, and ulcer

preventing devises such as orthotic boots, cushions, and pillows.

Further into Beauchamp's pleadings is this allegation:

Defendant failed to assess, treat and monitor Alisa Humphrey's susceptibility

to skin breakdown as a result of the use of her medical equipment, including

bed, wheelchair, and mattress, and as a result, Alissa Humphrey, while under

the care and control of Spindletop MHMR, developed a Stage IV decubitus

ulcer on her buttock, which required hospitalization and ultimately surgical

intervention. Because of Defendant's severe abuse and extreme neglect,

Alissa Humphrey suffered severe injuries and damages.

The Texas Tort Claims Act provides a waiver of immunity under limited

circumstances. Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021 , 101.025 (Vernon 1997).

Section 101.025(a) provides that "[s]overeign immunity to suit is waived and abolished to

the extent of liability created by this chapter." To sue a governmental unit for a tort, the

pleadings must state a claim under the Act; merely referencing the Act is not enough. Texas

Dep't of Criminal Justice v. Miller , 51 S.W.3d 583, 587 (Tex. 2001); Jones , 8 S.W.3d at 639 .

The plaintiff must show in what manner the Act waives the government's immunity from

suit. Miller , 51 S.W.3d at 587 ; Lacy v. Rusk State Hosp. , 31 S.W.3d 625, 629 (Tex. App.-

-Tyler 2000, no pet.).

Section 101.021 of the Act provides:

A governmental unit in the state is liable for:

(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)

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

personal or real property if the governmental unit would, were it a private

person, be liable to the claimant according to Texas law.

The trial court below based its jurisdiction on the "use" of tangible personal property

provision in section 101.021(2). "Use" means "to put or bring into action or service; to

employ for or apply to a given purpose." Miller, 51 S.W.3d at 588 . Claims alleging the

failure to use, or the non-use of property, or alleging errors in medical judgment, are not

within the waiver of immunity. Id. , at 587-88.

Although the "use" requirement of section 101.021(2) is not always easily applied,

it is intended to be a real limit on the waiver of immunity. See San Antonio State Hosp. v.

Cowan, 47 Tex. Sup. Ct. J. 221 , 2004 Tex LEXIS 1, *5 (Jan. 9, 2004) ("As difficult as the

restriction has been to construe, it was clearly intended as a real limit on the waiver of

sovereign immunity.") (footnotes omitted). The scope of the limitation has developed over

the years as courts have struggled with the statute. (3) In Robinson v. Central Tex. Mental

Health and Mental Retardation Ctr. , 780 S.W.2d 169 (Tex. 1989) the Court held that

providing some equipment for swimming, but no life preserver, was a use; in Lowe v. Texas

Tech Univ. , 540 S.W.2d 297 (Tex. 1976), providing some football equipment but no knee

brace was held to be a use; and in Overton Mem'l Hosp. v. McGuire , 518 S.W.2d 528 (Tex.

1975), a lack of rails on a hospital bed was considered a use. See also Hampton v. University

of Texas , 6 S.W.3d 627 (Tex. App.--Houston [1 st Dist.] 1999, no writ) (hospital bed which

did not have rails raised or alarm activated). But the Texas Supreme Court held in Kerrville

State Hosp. v. Clark , 923 S.W.2d 582, 585 (Tex. 1996), that the precedential value of Lowe

and Robinson is "limited to claims in which a plaintiff alleges that a state actor has provided

property that lacks an integral safety component and that the lack of this integral component

led to the plaintiff's injuries." And in Cowan, 47 Tex. Sup. Ct. J. 221 , 2004 Tex. LEXIS 1

at *5 , a case involving a patient's use of suspenders and part of a walker to commit suicide,

the Court held that "[a] governmental unit does not 'use' personal property merely by

allowing someone else to use it and nothing more." The Court distinguished the "use" of the

hospital bed in Overton as follows: "The hospital [in Overton ] did not merely allow the

patient access to the bed; it actually put the patient in the bed as part of his treatment." Id.

at *7.

In Miller, 51 S.W.3d at 588-89 , the Supreme Court held a claim that a governmental

unit misused medication, masking the symptoms of meningitis and causing an inmate's

death, was not within the statutory waiver of immunity. The TDJC used drugs while treating

the inmate, "but that some property is merely involved is not enough." Id. at 588 (citing

Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 342 (Tex.

1998)). The Court explained that "[u]sing that property must have actually caused the

injury." Miller, 51 S.W.3d at 588 . Plaintiffs' claim was "in essence an allegation only of

negligence, not of 'use' of tangible personal property that 'caused' injury." Id.

In Gainsville Memorial Hosp. v. Tomlinson , 48 S.W.3d 511 (Tex. App.--Fort Worth

2001, pet. denied), a patient at Gainsville Memorial Hospital was being assisted by a nurse's

aide. Id. at 512 . The aide sat the patient at the end of her hospital bed. Id. The patient then

fell to the floor and struck her head. Id. She filed suit alleging that the "negligent misuse"

of the hospital bed by the nurse's aide in allowing her to sit unsupervised on the bed, in the

condition she was in, caused the injuries. Id. at 512-13 . The trial court denied the hospital's

plea to the jurisdiction. Id. at 513 . The Fort Worth Court of Appeals reversed, finding that

the "misuse of the bed" allegation did not state a waiver of sovereign immunity. The court

stated "[m]erely asserting that some form of tangible personal property is involved is not

sufficient to demonstrate waiver of immunity." Id. at 513 . The bed did no more than furnish

the condition that made the injury possible, and did not proximately cause the injury. Id.

Beauchamp has not pleaded facts sufficient to establish the trial court's jurisdiction.

Section 101.021(2) waives immunity for injury "so caused by a condition or use of tangible

personal property." Plaintiff makes no allegations in this case attacking the condition of the

bed and the other named equipment, that is, that the property was defective or lacked an

integral safety feature. Non-use of "ulcer preventing devices" is not use of tangible personal

property within the statutory waiver, and allegations of negligent care are not sufficient to

establish waiver of immunity. See Miller, 51 S.W.3d at 587 -88 ; Lacy, 31 S.W.3d at 630 .

As in Tomlinson , the property "used" by Spindletop, the bed and the wheelchair, furnished

the condition which made the injury possible. But providing Humphrey a bed and a

wheelchair are not the acts that are alleged to have caused injury. Rather the pleadings assert

a failure to "assess, treat and monitor" her condition as the cause of her injury. The

Legislature has not waived immunity to suit for that alleged tort.

Plaintiff also relied on Section 101.021(1), asserting the bed was "motor-driven

equipment." The trial court did not base its decision on this ground, but this allegation also

does not meet the causation requirement, that the injury be caused by "the operation or use"

of the equipment.

We reverse the trial court's order, and render judgment dismissing the claim for lack

of subject matter jurisdiction.

REVERSED AND RENDERED.

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DAVID B. GAULTNEY

Justice

Submitted on February 4, 2004

Opinion Delivered February 26, 2004

Before McKeithen, C.J., Burgess and Gaultney, JJ.

DISSENTING OPINION

I respectfully dissent. I believe this case is more like Lowe v. Texas Tech Univ ., 540

S.W.2d 297 (Tex. 1976), than any of the cases relied upon by the majority. I acknowledge

the language in Kerrville State Hosp. v. Clark , 923 S.W.2d 582, 584-85 (Tex. 1996):

In Lowe v. Texas Tech Univ ., 540 S.W.2d 297, 298 (Tex.1976), Lowe

alleged that he injured his knee while playing football for the university. The

injury allegedly occurred when a coach ordered him to remove his knee brace,

worn because of a previous knee injury, and reenter a game without it. Id . at

302 (Greenhill, C.J., concurring). This Court concluded that the knee brace

was as integral a part of Lowe's uniform as his helmet or shoulder pads. Id. at

300 . The Court therefore held that the State waived immunity by providing

Lowe with a football uniform that was defective due to its lack of a knee brace.

Id.

This rationale was also applied to invoke the Act's waiver provisions in

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

In Robinson , MHMR took several patients, including Robinson, swimming.

Id. at 169 . The employees of MHMR knew that Robinson was epileptic and

occasionally suffered seizures, causing him to lose consciousness. Id. MHMR

and its employees, however, failed to provide Robinson with a life preserver,

and he subsequently drowned. Id. This Court concluded that "[a] life

preserver was just as much a part of Robinson's swimming attire as the knee

brace was part of the uniform in Lowe ." Id. at 171. The Court therefore held

that MHMR waived its immunity. Id .

These cases represent perhaps the outer bounds of what we have

defined as use of tangible personal property. We did not intend, in deciding

these cases, to allow both use and non-use of property to result in waiver of

immunity under the Act. Such a result would be tantamount to abolishing

governmental immunity, contrary to the limited waiver the Legislature clearly

intended. The precedential value of these cases is therefore limited to claims

in which a plaintiff alleges that a state actor has provided property that lacks

an integral safety component and that the lack of this integral component led

to the plaintiff's injuries. For example, if a hospital provided a patient with a

bed lacking bed rails and the lack of this protective equipment led to the

patient's injury, the Act's waiver provisions would be implicated. Lowe , 540

S.W.2d at 300 .

Here the employees of Spindletop MHMR Center knew Ms. Humphrey had developed

an ulcer on her buttock. Placing her in the bed without the appropriate padding or other ulcer

preventing devices was akin to putting the football player on the field without the brace,

Lowe, or placing the epileptic swimmer in the pool without the life preserver, Robinson.

I do not believe the trial court abused its discretion in denying the plea to the

jurisdiction. The trial court should be affirmed.

DON BURGESS

Justice

Dissent Delivered

February 26, 2004

1.

Although Beauchamp pleaded that Spindletop is not a governmental entity, the trial

court determined it is. The Texas Legislature enacted provisions transferring certain state

property from the Texas Department of Mental Health and Mental Retardation ("MHMR")

to Spindletop. The transferred property was the site of the Beaumont State Center, formerly

a branch of MHMR. See Act of May 21, 2001, 77 th Leg., R.S., ch. 507, § 1, 2001 Tex. Gen.

Laws 963 , 964. See also former Tex. Health & Safety Code Ann. § 532.001 (b)(24)

(Vernon 1992). The record includes a document issued by MHMR certifying that, as of

March 2, 2001, Spindletop was recognized as a "Community Mental Health and Mental

Retardation Center." The trial court ruled that, as a "community center," Spindletop is a

"governmental unit." See Tex. Health & Safety Code Ann. § 534.001 (b)(1) (Vernon

Supp. 2004). Appellant says that issue is no longer contested by Beauchamp, but Beauchamp

disagrees and says Spindletop did not prove it was a governmental unit. We see no basis for

overturning the trial court's determination that Spindletop meets the statutory definition of

a governmental unit.

2. Read "and" as "or;" (1) and (2) are separate liability provisions.

3.

In Miller, 51 S.W.3d at 589 , the Texas Supreme Court wrote: "For many years, this

Court and its justices have expressed their frustration in trying to draw principled boundaries

between 'use' and 'non-use'. (citations omitted). Despite these writings, the Legislature has

made no change in this language."