refusing to affirm a summary judgment based on the hospital’s contention that the plaintiff did not pay for use of hospital because there might be a fact issue that hospital intended to treat plaintiff as a paying patient or the patient was indigent and unable to pay
How later courts described this case
- refusing to affirm a summary judgment based on the hospital’s contention that the plaintiff did not pay for use of hospital because there might be a fact issue that hospital intended to treat plaintiff as a paying patient or the patient was indigent and unable to pay
- a defective window screen held to be a premise defect; the screen was an appurtenance to the building
Written by the judges who cited it.
The opinion
OPINION ON MOTION FOR REHEARING
Both appellant Kathleen Billstrom and Memorial Medical Center have filed motions for rehearing. We have carefully examined each motion and are of the opinion that our decision to reverse this case is sound.
Appellant strenuously argues that this is a case involving “some condition or some *649 use of personal property” within the purview of Section Three of the Act because the substance of the allegations contained in her petition were to the effect that Memorial provided “insufficient safeguards (devices) and procedures” to prevent White’s escape.
In Lowe v. Texas Tech University, 540 S.W.2d 297, 300-301 (Tex.1976), Justice Steakley, writing the majority opinion for our Supreme Court, said “the affirmative allegation of furnishing defective equipment to Lowe states a case within the statutory waiver of immunity arising from some condition or some use of personal property.” In addition, the majority opinion held that “allegations of a negligent failure to furnish him proper protective items of personal property, to be used as a part of the uniform furnished him, bring his case within the statutory waiver of immunity [under Section Three of the Act].” (emphasis added). This latter holding followed from the majority’s conclusion that both standard and specially designed protective devices, including special taping and knee braces, are integral parts of the football uniform.
We are of the opinion that, even under the most liberal interpretation, the thrust of appellant’s pleadings concern the condition of Memorial’s premises. Because this case must be reversed for the reasons set forth in our original opinion to allow appellant (among other things) the opportunity to amend her pleadings, it may occur that issues of fact will develop in the trial of the case on the merits, either along the lines set forth in our original opinion, or because of “some condition or some use of personal property” as contended in appellant’s motion for rehearing.
Inherent in appellant’s contentions are the problems noted by our Supreme Court in Lowe v. Texas Tech University, supra. As our Chief Justice stated in the concurring opinion in Lowe :
“If the words ‘caused from some condition or use’ of property are intended as words of a limited waiver of immunity, and if the waiver is intended to be confined to cases involving injury proximately caused by some condition or use of property which is owned or furnished by the State, we reach certain results.
But if they mean that the Legislature intended for the State to be liable in every tort case in which personal property was either used or not used, then we reach different results. This construction would amount to a general waiver in virtually all tort cases. That is not necessarily bad, but I do not think that this is what the Legislature intended. It is difficult to imagine a tort case which does not involve the use, or nonuse, of some item of real or personal property; and to me, if there is a waiver in all cases where some item of personal property is either used or not used, there is virtually an unrestricted waiver of immunity.” Lowe v. Texas Tech University, supra, at 301—302. (emphasis added).
We therefore partially grant appellant’s motion for rehearing so as not to forestall her suit against Memorial on whatever basis of liability, if any, is developed in the pleadings and from the evidence during the course of the trial.
Appellant’s motion for rehearing is granted in part and Memorial’s motion for rehearing is overruled.