Helen Robinson v. University of Texas Medical Branch at Galveston

Affirmed and Majority and Concurring Opinions filed June 30, 2005

Affirmed and Majority and Concurring Opinions filed

June 30, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-01400-CV

____________

HELEN

ROBINSON , Appellant

V.

UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON , Appellee

_____________________________________________________________________

On Appeal from the 10th District Court

Galveston County , Texas

Trial Court Cause No. 02-CV1466-A

_____________________________________________________________________

C O N C U R R I N G O P I N I O N

I concur in the result the majority reaches but I disagree

with the court = s resolution of all the claims

alleged in Mrs. Robinson = s petition except for the breach of contract and special

relationship claims. [1]

Mrs. Robinson = s petition alleged claims for

traditional negligence, gross negligence, negligent supervision, negligence per

se, special relationship, and constructive

fraud. In each but the special

relationship claim, the majority finds Mrs. Robinson cannot pursue these claims

because she has not alleged a use of tangible personal property for which the

Texas Tort Claims Act waives immunity. [2] I would hold that Mrs. Robinson could not

pursue these claims because the remaining claims, although pleaded as tort

claims, are all contractually based and thus subject to Chapter 2260 = s administrative prerequisites. [3]

The Texas

Tort Claims Act Only Waives Immunity for Certain Tort Claims

A plaintiff wishing to avail himself of the Texas Tort Claims

Act = s waiver of sovereign immunity must

clear two hurdles. First, the plaintiff

must plead a legally cognizable tort cause of action. This is because the Texas Tort Claims Act

does not create a cause of action; the Act only waives the state = s sovereign immunity in limited

situations. City of Tyler v. Likes ,

962 S.W.2d 489, 494 (Tex.

1997); Seamans v. Harris County Hosp. Dist. , 934 S.W.2d 393, 395 (Tex.

App. C Houston [14th Dist.] 1996, no

writ). And second, the plaintiff = s claim must be one for which the

legislature has waived liability. [4] Tex.

Civ. Prac. & Rem. Code ' 101.021 (specifying the types of

tort claims for which a state governmental unit is liable). If, as in Mrs. Robinson = s case, the plaintiff has not alleged

a cognizable tort cause of action, the Tort Claims Act cannot waive the state = s immunity, even if the plaintiff

could satisfy the other requirements.

The Texas Tort Claims Act Does Not Apply

Because Mrs. Robinson = s Claims

are Contractually Based

Mrs. Robinson = s claims, although pleaded as tort causes of action, are in

fact, all contractually based. All of

Mrs. Robinson = s claims stem from UTMB = s failure to use Mr. Robinson = s body for medical research and then

to return his ashes to his family as promised.

Because the only duties UTMB owed to the Robinsons arise from the

parties = contract, I would conclude that all

of Mrs. Robinson = s claims are contractually-based.

1. Determining the source of UTMB = s duties

As mentioned above, Mrs. Robinson alleged a negligence claim,

a gross negligence claim, negligent supervision, negligence per se, a special

relationship claim, and constructive fraud.

We determine whether a claim sounds in tort or contract by looking to

the source of the legal duty. See

DeWitt County Elec. Co-op., Inc. v. Parks , 1 S.W.3d 96, 105 (Tex. 1999); Univ.

of Tex. Med. Branch at Galveston v. Harrison , No. 14-02-01276-CV, 2003 WL

21803314 , *3 (Tex. App. C Houston [14th Dist.] Aug. 7, 2003, pet. denied). If the parties would owe no duties to one

another but for the contract, the claim is contractually based. Harrison , 2003 WL 21803314 at *3 ( A [I]f the defendant = s conduct would give rise to

liability only because it breaches the parties = agreement, the plaintiff = s claim ordinarily sounds only in

contract. @ ) (citing DeWitt , 1 S.W.3d at

105 ). But, if the parties would owe

duties to one another even in the absence of a contract, the claim sounds in

tort. Id . ( A Where a defendant = s conduct would give rise to

liability independent of the fact that a contract exists . . . the plaintiff = s claim may also sound in tort. @ ) (citing DeWitt , 1 S.W.3d at

105 ). Thus, I would first determine

whether each of Mrs. Robinson = s claims sounds in tort, so that the Tort Claims Act might

apply, or in contract, so that Chapter

2260 might apply.

2. The negligence claims

In her negligence claims, Mrs. Robinson alleges UTMB had a

duty to use her husband = s body only for medical research and to return her husband = s ashes to the family. These duties clearly arise from the Willed

Body Form that Mr. Robinson signed. This

contract outlined and limited the duties UTMB owed to Mr. and Mrs. Robinson. In the absence of the parties = contractual agreement for the

donation of Mr. Robinson = s body for specified purposes and UTMB = s return of the body to his family,

UTMB would owe no duty to the Robinsons to use his body for medical research or

to ensure the return of his ashes to the family. Accord, Harrison , 2003 WL 21803314 , at

*3 ( A Apart from the duties created by [the

willed body form], appellees have not cited and we have not found, any Texas

case law recognizing a tort duty that UTMB owed to them and allegedly breached. @ ). Thus, even though Mrs. Robinson called her

claims negligence claims, at their heart, they are contractual and complain of the breach of the parties = agreement.

3. The special relationship claim

I also would find that Mrs. Robinson = s special relationship claim is

contractually based. A special

relationship claim requires (1) a contractual relationship between the parties;

(2) the plaintiff = s particular susceptibility to emotional distress; and (3)

the defendant = s knowledge of the plaintiff = s particular susceptibility based on

the circumstances. Lions Eye Bank of

Tex. v. Perry , 56 S.W.3d 872, 877 (Tex. App. C Houston [14th Dist.] 2001, pet.

denied) (citing Johnson v. Standard Fruit & Vegetable Co. , 984

S.W.2d 633, 638 (Tex. App. C Houston [1st Dist.] 1997), rev = d on other grounds , 985 S.W.2d 62 (Tex. 1998)).

The contract itself is the basis of the duty to a deceased = s family to properly handle the

deceased = s remains. See Pat H. Foley & Co. v. Wyatt ,

442 S.W.2d 904, 906 (Tex. Civ. App. C Houston [14th Dist.] 1969, writ ref = d n.r.e.) (finding that the plaintiff = s A basic allegation is that the

defendant failed to perform according to its contractual responsibility @ ).

In the absence of a contractual relationship, a plaintiff cannot

maintain a special relationship claim. Lions

Eye Bank , 56 S.W.3d at 877 (finding plaintiffs were precluded from

establishing the defendant owed them a duty not to negligently inflict mental

anguish because there was no contractual relationship). Because a special relationship claim arises

solely from the parties = contractual relationship, Mrs. Robinson = s special relationship claim is also

contractually based.

4. The constructive fraud claim

And finally, I would find that the constructive fraud claim

is contractually based. Constructive

fraud is the breach of a legal or equitable duty which the law declares

fraudulent because it violates a fiduciary relationship. Jean v. Tyson-Jean , 118 S.W.3d 1, 9

(Tex. App. C Houston [14th Dist.] 2003, pet.

denied) (citing Archer v. Griffith , 390 S.W.2d 735, 740 (Tex. 1964)). Mrs. Robinson alleges UTMB committed a

constructive fraud by not returning her husband = s ashes to her after using his body

for medical research. Here, as with the

other claims, the source of these duties was the contract between the

parties. Mrs. Robinson has not provided

any Texas

authority for finding that UTMB owed other legal or equitable duties to her

husband or to her. Therefore, the

constructive fraud claim, like the others, is also contractually based.

Conclusion

Because all of Mrs. Robinson = s claims are contractually based, she

was required to satisfy Chapter 2260 = s administrative prerequisites to

proceed with her claim against UTMB. Because

she has not done so, I would hold that UTMB has not waived its sovereign

immunity and the trial court properly granted UTMB = s plea to the jurisdiction.

/s/ Wanda McKee Fowler

Justice

Judgment rendered

and Majority and Concurring Opinions filed June 30, 2005.

Panel consists of Justices Fowler, Edelman and Elliot. [5] (Elliott, J., majority.)

[1] I agree with

the majority = s conclusions that (1) Mrs. Robinson cannot proceed

with her claims because UTMB has not waived its sovereign immunity; (2) the

trial court properly granted UTMB = s plea

to the jurisdiction; and (3) Mrs. Robinson could not proceed with her breach of

contract claim because the failure to comply with Chapter 2260 = s administrative

prerequisites has foreclosed that avenue

of recovery.

[2] The majority

holds that Mrs. Robinson has not alleged a use because the only intended use of

the body was as a cadaver; once that use was completed there could be no

further use. Their contract specifically

stated that the body = s ashes should be returned to the family. I believe that UTMB = s improper A use @ of the ashes by mingling them with the ashes of other

donated bodies qualifies as a use of tangible personal property. But, even though Mrs. Robinson may have

alleged a use under the Act, she still cannot prevail over the plea to the

jurisdiction for the reasons listed infra .

[3] The majority

holds that Mrs. Robinson cannot pursue her special relationship claim for this

very reason. I agree with the majority = s reasoning and result with respect to the special

relationship claim. However, I believe

that all of Mrs. Robinson = s other claims are subject to the same analysis.

[4] The Texas Tort

Claims Act waives immunity in two situations, stating:

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) 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.

Tex. Civ. Prac. & Rem.

Code ' 101.021(1).

[5] The Honorable

Brady G. Elliott, Judge of the 268th District

Court of

Fort Bend

County, sitting by

assignment pursuant to Tex. Gov = t Code ' 74.003(h) (Vernon 2005)