Bossley v. Dallas County Mental Health & Mental Retardation

Decision Date17 February 1995
Docket NumberNo. 05-91-00284-CV,05-91-00284-CV
Citation934 S.W.2d 689
PartiesAlbert BOSSLEY and Elaine Bossley, Individually and as Representatives of the Estate of Roger Arthur Bossley, Appellants, v. DALLAS COUNTY MENTAL HEALTH AND MENTAL RETARDATION et al., Appellees.
CourtTexas Court of Appeals

Robert G. Oake, Jr., Law Offices of Robert G. Oake, Jr., Dallas, for Appellants.

Douglas A. Barnes, John F. O'Donnell, Brown McCarroll & Oaks Hartline, L.L.P., Dallas, Michael W. Eady, Brown McCarroll & Oaks Hartline, L.L.P., Austin, for Appellees.

Before THOMAS, 1 C.J., and CHAPMAN and KAPLAN, 2 JJ.


THOMAS, Chief Justice.

This appeal presents another opportunity for the courts to struggle with determining what constitutes a condition or use of tangible property as those terms are used in the Texas Tort Claims Act (the Act). See TEX.CIV.PRAC. & REM.CODE ANN. § 101.021 (Vernon 1986). The case presents the same dilemma expressed nineteen years ago by Chief Justice Greenhill when he said, "Our problem is trying to determine what the Legislature meant." Lowe v. Texas Tech Univ., 540 S.W.2d 297, 303 (Tex.1976) (Greenhill, C.J., concurring). Although the question of what constitutes the parameters of governmental immunity under the Act has been raised innumerable times, we seem to stay in a stall pattern, whipped in whichever direction a case may push a particular court or courts.

In this wrongful death suit, Albert and Elaine Bossley, individually and as representatives of the estate of Roger Arthur Bossley, deceased, appeal from a summary judgment granted in favor of Dallas County Mental Health and Mental Retardation (Dallas MHMR), John Kamphaus, M.D., Harold Urschel, M.D., Dora Pogue, R.N., Robbie Pugh, Laura Moore, Nettie Langley, Florence Bates, Danny Williams, Domingo Davilla, Patricia Prince, and Angela Jones. Appellants based their action on negligence. Appellees separately moved for summary judgment on the basis of sovereign immunity, official immunity, lack of proximate cause, and a statutory cap on damages. In four points of error, appellants generally contend the trial court erred in granting summary judgment. For the reasons set forth below, we reverse the trial court's judgment. Accordingly, we remand the cause to the trial court for further proceedings consistent with this opinion.


In July 1988, Roger Bossley was suffering from major depression and unsuccessfully attempted suicide. Roger was taken to Parkland Memorial Hospital, transferred to the Mental Diagnostic Center, and eventually transferred to Hillside Center, a treatment facility owned and operated by Dallas MHMR. Hillside is an "open" facility where patients have considerable freedom of movement. In fact, during Roger's residency, he had weekend passes and the ability to go on various outings, job interviews, and other activities away from the unit. Roger was a Hillside patient from July 25, 1988 until his death on August 12, 1988.

On August 9, Roger asked another patient where he could get a gun so he could kill himself when he got out. The patient immediately reported Roger's statement to Dr. Urschel, one of the treating physicians. Dr. Urschel noted in Roger's chart that he considered Roger to be "a definite risk to himself." Because of the need for a more restrictive environment, Dr. Kamphaus, another treating physician, ordered on August 11 that Roger be returned to the Mental Diagnostic Center for further evaluation. The transfer documents indicated that Roger remained suicidal despite his stay at Hillside.

Because it was not uncommon for patients to oppose being transferred to a more restrictive facility, Hillside had a regular practice of locking the front door of the residential unit when protective orders had been signed by a doctor and paperwork had been transmitted to the court. Thus, the outer door was locked after Dr. Kamphaus signed Roger's transfer documents. The unit also has a self-locking, inner glass door that is sometimes locked as a precautionary measure. Although Dr. Urschel considered ordering suicide and elopement precautions in this instance, he did not do so. Further, no one else ordered such precautions. Consequently, the inner door was not locked.

Although the doctors and some of the employees did not consider Roger an elopement risk, the summary-judgment evidence established that everyone considered him a risk to himself if he was released at that point. Apparently, Roger knew the transfer to the Mental Diagnostic Center would likely result in his being committed to Terrell State Hospital. In fact, Roger discussed with some of the appellees his fears about being transferred to Terrell. There was a noticeable change in Roger's behavior on the morning of his death. During the shift-change conference on the morning of Roger's escape, the Dallas MHMR employees discussed Roger's fear of going to Terrell. Further, they discussed that Roger might try to escape to avoid being transferred. At least one Dallas MHMR employee admitted that someone suffering from "major depression," who is considered to be suicidal, can be irrational and unpredictable.

On August 12, Angela Jones, a Hillside employee, returned to Roger's residential unit to get her purse so she could go to lunch. She saw Roger talking on the telephone, which was located in the hallway on the men's wing. Ms. Jones observed Roger for a few seconds and then started toward the door. Although Ms. Jones knew Roger was restricted to the unit, she did not tell anyone to watch him as she began to leave. She explained she was not the employee responsible for Roger at the time. Ms. Jones stated she did not recall seeing anyone watching Roger. She further admitted that if no one was watching him, she should have called out to someone before starting toward the door.

Ms. Jones first passed through the inner door that was closed, but unlocked. Once she got to the front door, Ms. Jones stated she looked around before beginning to unlock the door. She admitted, however, that the hallway area of the men's unit where the telephones are located could not be seen from the front door. Thus, she did not know Roger's location as she began to unlock the door. During the few seconds that it took to unlock the outer door and begin to open it, Ms. Jones heard footsteps behind her. At that point, Roger overpowered Ms. Jones and escaped through the open door.

Roger ran to Interstate Highway 30, approximately one-half mile from Hillside. He initially began to hitchhike toward Dallas. Upon being approached by a Hillside employee, Roger ran across the interstate and proceeded to hitchhike toward Fort Worth. As Dallas MHMR employees and the police began to approach Roger, he looked toward the employees, back to the police, and then toward an oncoming truck. Roger then jumped in front of the truck. He was killed on impact.


In reviewing a summary-judgment record, we apply the following standards:

1. The movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in the nonmovant's favor and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). For a defendant, as movant, to prevail on summary judgment, it must either disprove at least one element of the plaintiff's theory of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. International Union UAW Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 563 (Tex.App.--Dallas 1991, writ denied). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982).

Once the movant has established a right to summary judgment on the issues presented, the nonmovant has the burden to respond by presenting evidence that raises genuine issues of material fact. Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 215 (Tex.App.--Houston [1st Dist.] 1986, no writ). When a summary-judgment order does not specify the grounds on which it was granted, the order will be upheld on any ground asserted in the motion that meets the above criteria. 3 See Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.App.--Houston [1st Dist.] 1988, writ denied).


The negligence allegations asserted against appellees are grouped and briefly summarized.

1. The Doctors

Dr. Urschel failed to take immediate action by either communicating with Dr. Kamphaus or ordering a transfer when he learned about Roger's comments. Both doctors failed to order suicide or elopement precautions. Further, they did not order that the outer and inner doors remain locked until Roger was transferred. Lastly, the doctors failed to order that Roger be placed in the seclusion room.

2. Dallas MHMR Employees 4

They failed to adequately communicate Roger's suicidal condition and elopement risk to other staff members. Further, they failed to keep the inner door locked and failed to order any type of suicide or elopement precautions after they knew or should have known that Roger was suicidal and an elopement risk. Further, they failed to have someone monitor Roger and keep him within sight at all times while he was awaiting transfer.

3. Ms. Jones

Ms. Jones opened the door when she knew or should have known that Roger had access to the doorway because no one was monitoring him. Further, she opened the door without checking Roger's location or ensuring that the inner door was closed and locked. Finally, she did these acts when it was...

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