finding waiver of sovereign immunity for failure of MHMR employees to provide life preserver to patient known to suffer from epileptic seizures when responsibility of MHMR employees was to see that patients were dressed in appropriate swimming attire
How later courts described this case
- finding waiver of sovereign immunity for failure of MHMR employees to provide life preserver to patient known to suffer from epileptic seizures when responsibility of MHMR employees was to see that patients were dressed in appropriate swimming attire
- concluding that sovereign immunity was waived by the failure to provide a life preserver because the preserver was an essential part of the swimming attire that the defendant had a responsibility to provide
- holding that hospital’s failure to provide epileptic and mentally retarded patient with a life preserver to be used as part of his swimming attire, brought the case under § 101.021(2)
- applying Salcedo in determining that plaintiff stated cause of action waiving immunity by alleging that MHMR’s failure to provide life preserver to patient known to suffer epileptic seizures that caused him to lose consciousness led to patient drowning at lake while under MHMR’s care
Written by the judges who cited it.
Distinguished
Distinguished by Phillip Smallwood v. State (2010)
We distinguished Lowe and Robinson,
Distinguished by State v. Elkanah Henry King and Mary King, Individually & as Representatives of the Estate of Alfred K. King (2003)
Robinson and Lowe are inapplicable.
The opinion
SPEARS, Justice,
concurring.
I concur in the court’s opinion because legislative silence since our decision in Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex.1976) is tantamount to legislative approval of the statutory construction set forth in that opinion. If there has been some sort of judicial usurpation as the dissent asserts, then it is a usurpation that occurred over thirteen years ago and the legislature has long since acquiesced. Courts have repeatedly held that a negligent failure to furnish an item of property comes within the statutory waiver of immunity for “a condition or use” of property. E.g., Trinity River Authority v. Williams, 689 S.W.2d 883 (Tex.1985) (failure to provide warning signs or barrier cable across river); Lowe (failure to furnish knee brace); Overton Memorial Hospital v. McGuire, 514 S.W.2d 79 (Tex.Civ.App.—Tyler 1974), writ refd n.r.e. per curiam, 518 S.W.2d 528 (Tex.1975) (failure to provide bed rails); Mokry v. University of Texas Health Science Center, 529 S.W.2d 802 (Tex.Civ.App.—Dallas 1975, writ refd n.r.e.) (failure to provide proper laboratory equipment). Today, the court says nothing new. This decision is merely a reaffirmation of prior holdings.