Billstrom v. Memorial Medical Center, 1467

• Decision Date: 27 March 1980
• Docket Number: No. 1467,1467
• Citation: 598 S.W.2d 642
• Parties: Kathleen BILLSTROM, Appellant, v. MEMORIAL MEDICAL CENTER, Appellee.
• Court: Texas Court of Appeals

Page 642

598 S.W.2d 642

Kathleen BILLSTROM, Appellant, v. MEMORIAL MEDICAL CENTER, Appellee.

No. 1467.

Court of Civil Appeals of Texas, Corpus Christi.

March 27, 1980.

Rehearing Denied May 8, 1980.

Tuck R. Chapin, San Antonio, for appellant.

S. E. Dyer, Darrell L. Barger, Kleberg, Dyer, Redford & Weil, Corpus Christi, for appellee.

OPINION

NYE, Chief Justice.

This is an appeal from a take-nothing summary judgment in a suit brought under the Texas Tort Claims Act. Appellant, the legal guardian of Richard Kevin White, brought this suit against Memorial Medical Center (Memorial) to recover damages for personal injuries White sustained when he attempted to escape through a security screen and window while confined to the hospital's mental ward and fell from a height of seven stories to the ground.

Appellant alleged that on February 20, 1977, White was admitted to the psychiatric unit of Memorial Medical Center. At the time of his admission, "he was mentally confused and agitated." The examining physician ordered the head nurse to closely observe White. On the following day White "became agitated and tried to leave the hospital on at least two occasions . . ." White was locked in security room number 732 on the seventh floor of the hospital so that he could not leave the hospital grounds and so that treatment could be maintained. About 4:00 a. m., White partially removed the security screen from one of the windows and opened an unlocked window, fashioned a rope from the bedsheets in his room, and tried to leave the hospital by going out the window on a bedsheet rope which would not reach the ground. White fell, sustaining permanent physical and mental injuries. The appellant alleged that the hospital staff had been placed on notice that White was "mentally disturbed, confused, and would try to leave the hospital grounds, if able." Had White been in his normal and reasonable mental condition at the time of the occurrence, he would not have attempted to do so. Appellant further alleged that the circumstances of the occurrence required the application of Section 3 of article 6252-19 of the Texas Tort Claims Act because,

"On the occasion in question, the hospital had furnished to the Plaintiff equipment, to wit: a window and a security screen that were both defective and harmful for the purposes for which they were used. In this connection, the Plaintiff would show that the security screen was not properly installed and maintained on the occasion and the window in the security room itself was unlocked. That both of such conditions were such that the hospital administrator, agents and employees should have known and foreseen that such occurrence might take place."

Appellant's pleading stated that recovery was not sought under the "defective premises" theory, but rather, upon "defective equipment in the room" (security screen). Appellant further alleged specifically enumerated acts of negligence upon the part of the agents and employees of Memorial which resulted from the "condition and use of personal or real property." In accordance with these allegations, plaintiff prayed for damages proximately resulting from such negligence as alleged.

Memorial answered, filing numerous special exceptions all to the effect that it was immune from liability under the provisions of the Texas Tort Claims Act. Memorial also alleged, in substance, that it was entitled to a summary judgment as a matter of law because 1) appellant's pleadings failed to state a cause of action by the enumerated allegations of negligence and 2) that, other than such alleged negligent acts, the case was based upon premises defects, for which Memorial owed White only the duty owed by a private person to a licensee upon private property. Memorial alleges that summary judgment was proper because there was no showing that the screen was defective, that employees of Memorial knew it was defective, or that the employees of Memorial negligently or willfully used the screen in such a way as to injure White. Alternatively, Memorial alleged that it was entitled to a partial summary judgment limiting the issues in the case by striking out the allegations in plaintiff's petition concerning the enumerated acts of negligence on the part of the agents and employees because they stated no cause of action as to Memorial. The trial court granted the motion for summary judgment, stating "that the defendant's Motion for Summary Judgment is well taken" and dismissed the cause.

Appellant assigns six points of error which, in essence, contend that: 1) the pleadings stated a valid cause of action within the exception to governmental immunity stated within Section 3 of the Tort Claims Act; 2) the petition should not be construed to be a suit based upon the "premises defects" exception stated within Section 18(b); 3) issues of fact were present concerning the defective window; 4) issues of fact were present concerning the seven enumerated acts of negligence of Memorial's employees and agents; 5) the distinction between the duty owed to licensees and invitees now recognized in Texas should be abolished; and 6) issues of fact were present concerning White's ability to pay his hospital bill.

Considering these points of error, we keep in mind the familiar rules governing our review of summary judgments. Rule 166-A, Texas Rules of Civil Procedure, provides that a summary judgment is proper only upon a showing that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 166-A, T.R.C.P., permits the granting of a summary judgment for a defending party against whom a claim is asserted if the pleadings, answers, and summary judgment evidence on file show that there is no genuine issue as to any material fact as to at least one essential element of plaintiff's cause of action, and the moving party is entitled to summary judgment as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); "Moore" Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.1972). All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Farley v. Prudential Insurance Company, 480 S.W.2d 176 (Tex.1972); Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969).

Here, the movant's motion also challenges the sufficiency of the non-movant's pleadings to raise a genuine issue of material fact which would constitute a cause of action. The operation of such a motion for summary judgment is closely analogous to a special exception challenging the sufficiency of the non-movant's pleadings as a matter of law. In such a case, the petition to which the motion is directed must be construed most liberally in favor of the pleader. Such petition is entitled to the benefit of every reasonable inference which can properly be drawn in its favor. Martin v. Trevino, 578 S.W.2d 763, 765 (Tex.Civ.App. Corpus Christi 1978, writ ref'd n. r. e.); Garza v. Perez, 443 S.W.2d 855 (Tex.Civ.App. Corpus Christi 1969, no writ). It must appear that the facts alleged by the non-movant established the absence of a right of action or of an insuperable barrier to a right of recovery. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). See Smart v. Carlton, 557 S.W.2d 553, 555 (Tex.Civ.App. Beaumont 1977, writ ref'd n. r. e.).

The Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19 (hereinafter called the Act), waives sovereign immunity to the limited extent provided therein and grants consent to sue for damages for personal injuries or death. Greenhill and Murto, Governmental Immunity, 49 Tex.Law.Rev. 462 (1971); see e. g., State v. Terrell, 588 S.W.2d 784 (Tex.1979); Overton Memorial Hospital v. McGuire, 518 S.W.2d 528 (Tex.1975); Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974). Section 4 of the Act expressly waives and abolishes sovereign immunity to the extent of liability created by Section 3, which provides, in relevant parts, that:

"Each unit of government shall be liable for . . . 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 in accordance with the law of this state. Such liability is subject to the exceptions contained herein . . ." (Emphasis added.)

Such an exception to the Section 3 waiver of immunity arises where the claim is from "premises defects." See Section 18(b), which provides:

"As to premises defects, the unit of government shall owe to any claimant only the duty owed by a private person to a licensee on private property, unless payment has been made by the claimant for the use of the premises." State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974).

Memorial asserts it is entitled to governmental immunity because appellant's pleadings and the summary judgment evidence established conclusively that this case falls within the purview of Section 18(b) of the Act. Appellant, on the other hand, contends that she alleged a cause of action based upon "some condition or some use of tangible property" within the meaning of Section 3, and that issues of fact are present which precluded summary judgment.

While the record in this case is sketchy, we must assume, for the purposes of testing appellant's pleadings, that the hospital had a duty to install a safe security screen, free from defects, to prevent mental patients from escaping, and was negligent in not doing so. The initial question then becomes whether the hospital can assert governmental immunity for its negligence or whether such immunity was waived by the Act. See Overton Memorial Hospital v. McGuire, 518 S.W.2d 528, 529 (Tex.1975).

Since the Act does not define the words "premises defects," the common and ordinary meaning is applied. Satterfield v. Satterfield, 448 S.W.2d 456 (Tex.1969); Beggs v. Texas Dep't of...