holding that failure to provide knee brace to football player fell within waiver provision because the brace was part of the uniform that he should have been provided and failure to provide made the uniform defective
How later courts described this case
- holding that failure to provide knee brace to football player fell within waiver provision because the brace was part of the uniform that he should have been provided and failure to provide made the uniform defective
- holding that allegation of furnishing defective football equipment states a case within the statutory waiver of immunity arising from some condition or some use of tangible property
- holding that university’s failure to provide football player with proper protective gear to be used as part of his football uniform, brought the case under § 101.021(2)
- holding immunity was waived when football player sued state university for personal injuries because university’s furnishing of defective equipment constituted use of tangible property
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
GREENHILL, Chief Justice
(concurring).
The purpose of this concurring opinion is to encourage the Legislature to take another look at the Tort Claims Act, and to express more clearly its intent as to when it directs that governmental immunity is waived. Speaking at least for myself, it is difficult to understand the language of the present statute and to apply it. I am not concerned with the broadness or the narrowness of the waiver. I was among those who encouraged the passage of the Act. 1 Our problem is trying to determine what the Legislature meant.
The language of Section 3 is particularly difficult to apply. As set out in the Court’s opinion, the language of Section 3, as I understand it, waives immunity where there is personal injury or death caused “from some condition or use” of tangible personal property or real property.
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 *302 amount to a general waiver in virtually all tort eases. That is not necessarily bad, but I do not think 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-
The original version of the bill which enacted the Tort Claims Act did call for such an unrestricted waiver of immunity. 2 That version, however, was substantially modified prior to passage. It was passed only after Governor Smith had vetoed an earlier bill which provided a somewhat limited waiver. 3 The Governor’s veto message makes clear that the Governor felt that even this limited version was too broad and all-encompassing. 4 Under these circumstances, I think it is clear that the bill which was finally passed by the Legislature and approved by the Governor did not contain a broad, general waiver of governmental immunity. By its express provisions, it waives immunity only in particular instances.
Coming to this case, what did the Legislature intend to waive with regard to the furnishing of, or failure to furnish, athletic equipment? The statute, paraphrased, says “some condition or use” of the uniform which was furnished. I can understand a waiver for the furnishing of a defective or broken helmet. That would be the furnishing for use of personal property in a defective condition. The statutory language “condition or use” of property implies that such property was furnished, was in bad or defective condition or was wrongly used.
We were told in the oral argument of this case by plaintiff’s counsel that the plaintiff entered the game with a knee brace. There is no suggestion that it was a defective brace. Then, we were told, a coach considered that the plaintiff was not moving fast enough, or “cutting” well enough. The coach took the plaintiff out, had him remove the brace, and put the plaintiff back in. Then the plaintiff’s knee was injured. It may be that the action of the coach constituted negligent conduct; but I fail to see how the condition of the knee brace which was furnished had anything to do with the plaintiff’s injury.
Similarly, it is argued in the plaintiff’s brief in this Court that there was a negligent failure by the trainer to tape, or properly tape, the plaintiff’s knee. The allegation is that the tape was available but not used, or properly used. So here we go again: Texas Tech did furnish tape (an item of personal property), and there is no allegation that there was anything wrong with the tape. The personal property was furnished and was not in defective condition for use. The negligence, if any, was the failure of the trainer to do an act,— tape the knee. I do not think the Legislature intended its “condition or use of property” waiver to include the alleged negligent conduct of the trainer or coach.
Carried to its logical conclusion, as I understand the Court’s opinion, it might be construed to find a waiver of immunity because the injury grew out of the nonuse (the removal) of a nondefective knee brace which was furnished; i. e., some condition or use [nonuse] of personal property. I do not think the Legislature intended this general sort of waiver.
*303 A hypothetical example will point up the problem: assume that in a State-operated hospital, one of its doctors negligently removed the wrong kidney. In so doing, he uses tangible personal property, — a scalpel. There is no defect in the scalpel, but there is injury in the use of tangible personal property. The Legislature could provide a waiver for the negligent conduct of the doctor, but it has not. Did it intend a waiver based on the condition or use of tangible personal property, — the scalpel? I do not think so.
In any event, the Legislature will be in session in the near future; and it would be very helpful if it would give litigants and the courts guidelines which are easier to follow.
The facts of the case set out above,— about the coach’s having taken the plaintiff out to remove the brace, and the failure of the trainer to tape, are not in the pleadings; and our decision cannot turn on such a factual situation. But because these matters were made known to us in oral argument and in the plaintiff’s brief, they are subject to comment in view of a remand for trial. Among the allegations pleaded is a count that Texas Tech furnished equipment and uniforms which were defective. Taking this to be true, as we must at this stage of the game, it was error for the trial court to sustain the State’s plea in abatement. I, therefore, concur in the judgment of the Court.
McGEE and DOUGHTY, JJ., join in this concurring opinion.
. Greenhill, Should Governmental Immunity for Torts Be Reexamined, and If So, by Whom? 31 Texas B.J. 1036 at 1072 (1968). See also, Greenhill and Murto, Governmental Immunity, 49 Texas L.Rev. 462 at 472-3 (1971).
.House Bill 456, as originally introduced in the 61st Legislature, contained the following provisions:
Sec. 5. Insofar as the purposes of this Act are concerned, the distinction heretofore known to the common law between governmental and proprietary functions of government is hereby abolished in the State of Texas, and all functions of government, regardless of the nature thereof, are hereby declared to be proprietary in nature, it being the intent of the Legislature that no activity of any unit of government, of whatever nature or location or at whatever level, shall be exempt from the provisions of this Act.
. House Bill 117.
. Message from Governor Smith, Tex.H.R.J. 1921 (1969).