Texas Department of Mental Health & Mental Retardation v. Lee

LIVINGSTON,

Justice, concurring and dissenting.

Texas Department of Mental Health and Mental Retardation, State of Texas, Wichita Falls State Hospital, and Don Gilbert, appellants, appeal the trial court’s denial of their plea to the trial court’s jurisdiction based on their claim of sovereign immunity. While I concur with the majority’s conclusion that the patient’s bill of rights failed to waive immunity for public entities, I respectfully disagree with the majority’s conclusion that the appellee failed to allege facts sufficient to show waiver of immunity due to use, nonuse, or a condition of property.

I believe appellants’ patient, Robin Lee, made sufficient allegations in her pleadings to establish the trial court’s jurisdiction over her claim and that the trial court correctly determined the State had waived immunity.

When we review a trial court’s ruling on a plea to the jurisdiction we look to the allegations in the pleadings and accept them as true. 1 Additionally, the supreme court has determined the trial court may consider evidence in a preliminary hearing in order to determine its jurisdiction. 2 If the plaintiff provides sufficient evidence or alleges sufficient facts in its petition to establish waiver of immunity, dismissal for want of jurisdiction is inappropriate. 3 Under the Texas Tort Claims Act (TTCA) a governmental unit is liable for personal injury or death caused by a “condition or use of tangible personal or real property if the governmental unit would, were it a private person, be hable to the claimant *872 according to Texas law.” 4 The majority believes the State has not waived its immunity under the TTCA because the unlocked doors merely furnished a condition of the property that resulted in the patient’s injury, as opposed to actually causing the injury. Because I do not believe the property’s use or misuse must so directly cause the injury, I respectfully dissent from the majority’s conclusion on issue one.

In response to appellants’ motion for summary judgment and plea to the jurisdiction, appellee claimed that the hospital’s failure to lock her door or lock the doors between the men’s and women’s wings constituted a misuse of personal property that falls within section 101.021’s meaning of “use,” that the failure to provide some locking device on her door or the doors separating the wings was negligent, and that such negligence caused appellee’s damages. The question is whether the nonuse or misuse of a lock constitutes a “use” or a condition of the property that goes beyond the mere furnishing of the condition that allowed the injury to occur.

In the Lowe v. Texas Tech University 5 case, the supreme court held the State waived immunity when a football player was injured after a coach refused to let him wear a knee brace. 6 And in Robinson v. Central Texas MHMR Center; 7 the supreme court also held the State waived immunity where it allowed a handicapped young man to swim without a life preserver. 8 In both of those cases, the property used or not used led directly to the plaintiffs’ injuries. According to the Texas Supreme Court, we should, however, limit the holdings of those two cases to the type of facts presented by their claims. 9 Citing Kerrville State Hospital v. Clark, 10 the majority concludes that Bossley subsequently limited the breadth of Robinson and Lowe to claims where a plaintiff alleges a state actor has provided property that lacks an integral safety component that led to injuries. 11 I believe appellee claimed that exactly and therefore Bossley would not require dismissal.

Appellee’s exact claim set forth in her second amended petition says it best:

The failure to close and secure and to provide locking devices for the doors segregating the dormitories or sleeping areas, as well as the failure to lock Plaintiffs room or provide her with a locking device, was a misuse of tangible personal property and real estate and was a defective condition of these properties and was a failure to provide Plaintiff with safety devices ... which proximately caused Plaintiffs damages.

The majority says this is not enough and that Bossley compels dismissal. I disagree. In the Bossley case, an involuntarily-committed suicide patient escaped through an unlocked inner door while an employee was leaving the building and briefly left the outer door unlocked as she exited. 12 Hospital staff chased Bossley about a half a mile, where Bossley tried to hitchhike rides on both sides of a freeway. As a staff member approached, Bossley committed suicide by jumping into oncoming traffic. 13 Bossley’s parents sued the Dallas MHMR and other various employees claiming the State had waived immunity under section 101.021(2) of the TTCA *873 because their son’s death was caused by Jones’s unlocking the outer door without first locking the inner door. 14 The trial court granted the State’s motion for summary judgment on the ground of immunity but the appellate court reversed. However, the supreme court then reversed saying that property that does no more than furnish the condition that makes the injury possible cannot be said to have caused the injury, as required by the TTCA. 15 The court noted that both a use of property (Jones’s unlocking the outer door without watching for Bossley) and a condition of the property (the unlocked inner door) did not actually cause his suicide but only provided the means of escape. 16 The supreme court continued by distinguishing the facts in Bossley’s ease from the facts in Overton Memorial Hospital v. McGuire. 17 In McGuire, the supreme court held that the hospital’s failure to provide a hospital bed with side rails directly caused the plaintiffs injuries when he fell out of that bed. 18 In other words, “plaintiffs injury was immediate and directly related to the absence of restraints on the side of the bed,” as opposed to Bossley’s death, that was “distant geographically, temporally, and causally from the open doors at Hillside.” 19 Appellants and the majority believe Bossley compels dismissal because the unlocked doors provided no more than the mere condition that allowed the rape to occur. I disagree.

When applying the factors noted by the Bossley court, one can only reach the conclusion that the condition of the unlocked doors provided more than just the condition that allowed the rape. The rape took place on appellants’ premises, in the patient’s room, in spite of appellants’ knowledge regarding the patient’s promiscuity and prior sexual encounters on site. In Bossley, the patient was killed off premises, after a lengthy chase and because of Bossley’s fortuitous timing (i.e., being at the front door when someone left it unlocked). Therefore, I believe Bossley is distinguishable from this case because the injury here was not distant temporally, geographically, or causally.

I believe the facts as alleged create a basis for establishing that the unlocked doors furnished more than just the condition for the rape; it provided access to appellee and it also provided a place for the assault to occur, all of which occurred on the hospital’s property. Therefore, I would affirm the trial court’s denial of appellants’ motion for summary judgment on waiver of immunity under the TTCA and hold the trial court has jurisdiction to hear those claims. Alternatively, I would remand this case to the trial court to give the parties an opportunity to request a preliminary hearing on the pleas to the jurisdiction in accordance with the supreme court’s guidance set forth in the Bland case.

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

. Bland I.S.D. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

. Tex. Natural Res. & Conserv. Comm'n v. White, 13 S.W.3d 819, 823 (Tex.App.-Fort Worth 2000, pet. granted).

. Tex.Civ.Prac. & Rem.Code Ann. § 101.021(2) (Vernon 1997).

. 540 S.W.2d 297 (Tex.1976).

. Id. at 300 .

. 780 S.W.2d 169 (Tex.1989).

. Id. at 171 .

. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.), cert. denied, 525 U.S. 1017 , 119 S.Ct. 541 , 142 L.Ed.2d 450 (1998).

. 923 S.W.2d 582 (Tex.1996).

. See id. at 585 .

. Bossley, 968 S.W.2d at 340-41 .

. Id. at 341 .

. id.

. Id. at 343 .

. Id.

. 518 S.W.2d 528 (Tex.1975).

. Id. at 529 .

. Bossley, 968 S.W.2d at 343 .