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
COOK, Justice,
dissenting.
I join in the dissenting opinion written by my colleague, Justice Hecht. However, I feel I must also write independently in order that the people of Texas more fully understand what the majority of the court is doing. Under the Constitution of the State of Texas the legislature has the exclusive power to enact laws. The role of the Supreme Court of Texas is to interpret them. The law has to be more than naked power. However, the majority of the court is using the “power to interpret the law” as a method to in fact make the law. If our constitutional form of government is to mean anything then the separation of powers should be respected.
The majority in this case has totally ignored the clear intent of the statute and has significantly weakened governmental immunity in Texas. Life is not death, black is not white, and, under the statute, use is not non-use. I therefore vigorously dissent.