Archibeque v. North Texas State Hosp.

• Decision Date: 14 August 2003
• Docket Number: No. 2-02-043-CV.,2-02-043-CV.
• Citation: 115 S.W.3d 154
• Parties: Tonya M. ARCHIBEQUE, Individually and as Heir of Janae Devries, Deceased, Appellant, v. NORTH TEXAS STATE HOSPITALWICHITA FALLS CAMPUS, an Agency of Defendant Texas Department of Mental Health And Mental Retardation, Appellee.
• Court: Texas Court of Appeals

115 S.W.3d 154

Tonya M. ARCHIBEQUE, Individually and as Heir of Janae Devries, Deceased, Appellant, v. NORTH TEXAS STATE HOSPITALWICHITA FALLS CAMPUS, an Agency of Defendant Texas Department of Mental Health And Mental Retardation, Appellee.

No. 2-02-043-CV.

Court of Appeals of Texas, Fort Worth.

August 14, 2003.

Kondos & Kondos Law Offices, and Anjel K. Avant, Richardson, for Appellant.

John Cornyn, Attorney General of Texas, Howard G. Baldwin, Jr., First Asst. A.G., Jeffrey S. Boyd, Deputy A.G. for Litigation; Julie Caruthers Parsley, Solicitor General, Joseph D. Hughes, Asst. Solicitor General, and Anne L. Morgan, Asst. A.G., Austin, for Appellee.

Panel B: CAYCE, C.J.; GARDNER and WALKER, JJ.

OPINION

JOHN CAYCE, Chief Justice.

I. Introduction

Appellant Tonya M. Archibeque, Individually and as heir of Janae Devries, Deceased, appeals from the trial court's judgment granting appellee's plea to the jurisdiction and dismissing her wrongful death and survival action. In her sole issue on appeal, Archibeque contends appellee's sovereign immunity from suit has been waived under the Texas Tort Claims Act¹ because Devries's death was the result of the use or misuse of tangible personal property. Because we conclude that appellee's immunity from suit has not been waived, we will affirm the trial court's judgment.

II. Background Information & Procedural History

Archibeque's mother, Janae Devries, was a patient at North Texas State Hospital, which is a part of the Texas Department of Mental Health and Mental Retardation.² While at the hospital, Devries allegedly committed suicide by covering her head with a trash bag and tying shoe laces around her neck. Thereafter, Archibeque filed a wrongful death and survival action,³ seeking to recover damages from appellee arising from Devries's death. Appellee filed a plea to the jurisdiction, alleging that it was sovereignly immune from suit for tort liability because the legislature had not consented to the suit. The trial court granted the plea, and this appeal followed.

III. Standard of Review

A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of the action. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Whether the trial court had subject matter jurisdiction is a question of law that we review de novo. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Mogayzel v. Tex. Dep't of Transp., 66 S.W.3d 459, 463 (Tex.App.-Fort Worth 2001, pet. denied). The plaintiff has the burden of alleging facts that affirmatively establish the trial court's subject matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). In determining whether jurisdiction exists, we accept the allegations in the pleadings as true and construe them in favor of the pleader. Id.; Tex. Dep't of MHMR v. Lee, 38 S.W.3d 862, 865 (Tex. App.-Fort Worth 2001, pet. denied). We must also consider evidence relevant to jurisdiction when it is necessary to resolve the jurisdictional issue raised. Bland ISD v. Blue, 34 S.W.3d 547, 555 (Tex.2000). No evidence was presented to the trial court in this case; therefore, we look solely to Archibeque's pleadings to determine the jurisdictional question.

IV. Sovereign Immunity From Suit

A. Use or Misuse of Property

Governmental entities such as appellee are immune from suit unless the legislature has expressly consented to the suit. Jones, 8 S.W.3d at 638; Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997). Absent legislative consent to sue a governmental entity, the trial court lacks subject matter jurisdiction over the case. Jones, 8 S.W.3d at 638. The Texas Tort Claims Act provides a limited waiver of sovereign immunity, allowing suits to be brought against governmental agencies only in certain narrowly-defined circumstances. Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001); see also Dallas County MHMR v. Bossley, 968 S.W.2d 339, 341 (Tex.1998) ("[T]he Legislature intended the waiver in the Act to be limited ...."), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998). Mere reference to the Act in a plaintiff's pleading does not establish the State's consent to be sued and thus is not enough to confer jurisdiction on the trial court. Miller, 51 S.W.3d at 587. Rather, "we must look to the terms of the Act to determine the scope of its waiver," Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex.1996), and then must determine whether the particular facts alleged in the case before us come within that scope. Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex.2001); Miller, 51 S.W.3d at 587.

Archibeque contends that she pleaded sufficient facts to show that her claims fall within the Act's immunity waiver. She asserts that the Act waives appellee's immunity from suit as to her claims because her claims are based on appellee's negligence involving the use or misuse of tangible personal property. Specifically, Archibeque alleges that appellee was negligent in providing Devries, who had a history of suicidal tendencies, a plastic trash bag and shoe laces, which she used to commit suicide. Archibeque also alleges that appellee's employees negligently failed to use a flashlight to monitor Devries during sleeping hours and negligently failed to properly diagnose Devries's condition and mental status in her chart.

Section 101.021 of the Act provides that a governmental unit is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

TEX. CIV. PRAC. & REM.CODE ANN. § 101.021 (Vernon 1997).⁴ Only section 101.021(2) is at issue in this case.

To state a claim under section 101.021(2), the plaintiff must allege that (1) property was used or misused by a governmental employee and (2) the use proximately caused personal injury or death. Bossley, 968 S.W.2d at 343; Lee, 38 S.W.3d at 867; Smith v. Tarrant County, 946 S.W.2d 496, 501 (Tex.App.-Fort Worth 1997, writ denied) (op. on reh'g). "Use" means "to put or bring into action or service; to employ for or apply to a given purpose." White, 46 S.W.3d at 869; LeLeaux v. Hamshire-Fannett ISD, 835 S.W.2d 49, 51 (Tex.1992). A mere allegation of use by a governmental employee or the involvement of property is insufficient to state a claim for which immunity has been waived under the Act; rather, the use must have proximately caused the injury or death. Bossley, 968 S.W.2d at 343; see also Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32-33 (Tex.1983); Lowe v. Tex. Tech. Univ., 540 S.W.2d 297, 299-300 (Tex.1976) (both construing phrase "personal injury and death so caused by a condition or use of property" as meaning "when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office").⁵ Although the degree of involvement is difficult for courts to discern in certain cases, the rationale and holdings of supreme court decisions make clear that there must be a close causal relationship between the condition or use of the property and the resulting injury. Lee, 38 S.W.3d at 867. "Property does not cause injury if it does no more than furnish the condition that makes the injury possible." Bossley, 968 S.W.2d at 343 (citing Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995)).

In this case, Archibeque asserts that appellee negligently used the trash bag and shoe laces because appellee furnished them to Devries, who had a history of suicidal tendencies, and failed to remove them from her room. Archibeque does not explain what appellee used the trash bag and shoe laces for, but presumably they were employed for their usual purposes: to collect trash and tie shoes. Archibeque does not contend that Devries's death was caused by either the collection of trash or the tying of her shoes; thus, Archibeque has not alleged that Devries's death was proximately caused by appellee's use or misuse of the trash bag and shoe laces. See Tex. Dep't of Criminal Justice v. Diller, ___ S.W.3d ___, ___, No. 12-02-00003-CV, 2002 WL 31680829, at * 3 (Tex. App.-Tyler Nov.27, 2002, pet. filed) (holding that prison employees' use of plastic mesh bag to transport suicidal inmate's clothing, and failure to remove bag from inmate's cell, was not proximate cause of inmate's subsequent suicide by hanging with the bag); see also DART v. Whitley, 104 S.W.3d 540, 542-43 (Tex.2003) (holding that DART bus driver's ejection of handicapped passenger from bus and failure to return for him as promised, so that he was severely beaten by another passenger who had threatened him in front of driver, was not use of motor vehicle under section 101.021(1) that proximately caused passenger's injuries).

The mere presence of the trash bag and shoe laces in Devries's room did no more than furnish the condition that made her death possible; it did not kill Devries or cause her to engage in suicidal conduct. Although Devries's use of the trash bag and shoe laces were part of a tragic sequence of events that ended in her death, appellee's alleged use of these items was too attenuated from her death to be said to have caused it. See Bossley, 968 S.W.2d at 343 (holding that unlocked doors at treatment facility, which permitted patient to escape and later commit suicide, were too attenuated from death to have caused it); Lee, 38 S.W.3d at 868 (h...