Beggs v. Texas Dept. of Mental Health & Mental Retardation, 15180

• Decision Date: 16 May 1973
• Docket Number: No. 15180,15180
• Citation: 496 S.W.2d 252
• Parties: Gerald Pat BEGGS, Guardian of Lois Taylor Evans, N.C.M., Appellant, v. TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION et al., Appellees.
• Court: Texas Court of Appeals

Page 252

496 S.W.2d 252

Gerald Pat BEGGS, Guardian of Lois Taylor Evans, N.C.M., Appellant, v. TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION et

al., Appellees.

No. 15180.

Court of Civil Appeals of Texas,

San Antonio.

May 16, 1973.

Rehearing Denied June 13, 1973.

Brown, Herman, Scott, Dean & Miles, Fort Worth, John Feather, Stroud & Smith, Dallas, Joseph F. Leonard, Jr., Kerrville, for appellant.

John L. Hill, Atty. Gen., John M. Barron, Larry York, Robert W. Gauss, J. C. Davis, Asst. Attys., Gen., Austin, for appellees.

BARROW, Chief Justice.

This is an appeal from a take-nothing summary judgment in a suit brought under the Texas Tort Claims Act, Article 6252--19, Vernon's Tex.Rev.Civ.Stat.Ann. Appellant, the guardian of Lois Taylor Evans, N.C.M., brought the suit against appellees, the Texas Department of Mental Health and Mental Retardation (MH-MR) and the Texas Department of Public Welfare, to recover damages for personal injuries sustained by Ms. Evans when Ms. Bessie Herrling, a copatient at the Colonial Nursing Home in Kerrville, doused Ms. Evans with lighter fluid and ignited same.

The Tort Claims Act, hereinafter referred to as the Act, which became effective January 1, 1971, waives sovereign immunity to the limited extent provided therein and grants consent to sue for money damages for personal injuries or death on such claims. Greenhill and Murto, Governmental Immunity, 49 Tex.Law Rev. 462 (1971). Appellees are a unit of government within the terms of the Act, but were granted a summary judgment on the ground that the claim asserted herein did not come within the waiver of governmental immunity created by said Act.

Section 4 of the Act expressly waives and abolishes sovereign immunity to the extent of liability created by Section 3 thereof. Section 3 provides:

'Each unit of government in the state shall be liable for money damages for personal injuries or death 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 arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment by river authorities created under the laws of this state, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state, Or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. Such liability is subject to the exceptions contained herein, ¹ and it shall not extend to punitive or exemplary damages. Liability hereunder shall be limited to $100,000 per person and $300,000 for any single occurrence for bodily injury or death.' (Emphasis ours)

Appellant alleged that Ms. Evans had been a patient at the Kerrville State Hospital since 1959. In July, 1970, she was transferred to the Colonial Nursing Home, a private nursing home, by MH-MR employees with the consent of the Department of Public Welfare . Shortly thereafter, Ms. Herrling was also transferred to the Colonial Nursing Home; and on September 3, 1970, the incident occurred which resulted in severe injuries to Ms. Evans. The sole act of negligence...