Brooks v. Center for Healthcare Services

• Decision Date: 30 June 1998
• Docket Number: No. 04-97-00353-CV,04-97-00353-CV
• Citation: 981 S.W.2d 279
• Parties: Harold BROOKS, Angie Brooks, and James Brooks, Appellants, v. CENTER FOR HEALTHCARE SERVICES a/k/a Crisis Center, Appellee.
• Court: Texas Court of Appeals

Page 279

981 S.W.2d 279

Harold BROOKS, Angie Brooks, and James Brooks, Appellants, v. CENTER FOR HEALTHCARE SERVICES a/k/a Crisis Center, Appellee.

No. 04-97-00353-CV.

Court of Appeals of Texas,

San Antonio.

June 30, 1998.

Randy Gathany, David W. Rogers, Law Offices of Dave Rogers, Inc., San Antonio, for Appellant.

James B. Edwards, William G. Trulove, Edwards & Associates, Houston, Jacqueline L. Murry-Molden, Assistant Attorney General, Austin, for Appellee.

Before HARDBERGER, C.J., and RICKHOFF and DUNCAN, JJ.

OPINION

RICKHOFF, Justice.

James Brooks and his parents, Harold and Angie, sued the Center for Healthcare Services (the Crisis Center), alleging that James was injured while he was at the Crisis Center for emergency mental health treatment. They sought damages under the Texas Tort Claims Act and the Civil Rights Act of 1871. The trial court granted summary judgment in favor of the Crisis Center on both causes of action. ¹

The principal issue we must address is whether the Crisis Center is subject to liability under the Civil Rights Act. Because the Center is more like a local governmental entity than an arm of the state, we conclude that it is subject to such liability. We also conclude that issues of fact exist on the Brookses' Civil Rights Act claim, as well as their claim under the Texas Tort Claims Act. Therefore, we reverse the summary judgment and remand for trial.

STANDARD OF REVIEW

We review a summary judgment de novo. See Sasser v. Dantex Oil & Gas, Inc., 906 S.W.2d 599, 602 (Tex.App.--San Antonio 1995, writ denied). We will uphold a summary judgment only if the record establishes that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law on a ground set forth in the motion. See TEX.R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995); Travis v. City of Mesquite, 830 S.W.2d 94, 99-100 (Tex.1992); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). When, as here, a trial court's order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989).

A defendant who conclusively establishes all of the elements of an affirmative defense is entitled to summary judgment. See Cathey, 900 S.W.2d at 341. Once a movant establishes its right to summary judgment on the basis of an affirmative defense, the nonmovant must respond with reasons for avoiding summary judgment and must support those reasons with proof sufficient to raise a fact issue. See Cummings v. HCA Health Servs., 799 S.W.2d 403, 405 (Tex.App.--Houston [14th Dist.] 1990, no writ). If the nonmovant responds with proof of a basis for avoiding the movant's affirmative defense, the movant then has the burden to negate the plaintiff's ground for avoidance as a matter of law. See id.

SUMMARY JUDGMENT ON CLAIMS UNDER THE TORT CLAIMS ACT

Governmental Liability Under the Tort Claims Act

The Tort Claims Act provides:

A governmental unit in the state 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). The Brookses assert that section 101.021(2) applies in this case. The supreme court has held that for immunity to be waived under section 101.021(2), "personal injury or death must be proximately caused by a condition or use of tangible personal or real property." Dallas County Mental Health & Mental Retardation Ctr. v. Bossley, 968 S.W.2d 339, 342 (1998). Additionally, a government entity may only be held liable under section 101.021 for the negligence of its employees. See TEX. CIV. PRAC. & REM.CODE ANN. § 101.057(2) (Vernon 1997); Dumas v. Muenster Hosp. Dist., 859 S.W.2d 648, 650 (Tex.App.--Fort Worth 1993, no writ).

The Summary Judgment Motion and Evidence

After the Brookses filed their first amended petition, the Crisis Center moved for summary judgment on the ground that sovereign immunity barred the Brookses' cause of action under the Tort Claims Act. Specifically, the Crisis Center asserted: 1) the Brookses' petition contained judicial admissions demonstrating that their cause of action under the Tort Claims Act was barred, and 2) the Brookses could not produce any evidence showing that the Crisis Center waived its sovereign immunity. The Crisis Center attached to its motion the affidavit of its contracts manager, stating that the Crisis Center is organized and operated under sections 531.002 and 534.001 of the Texas Health and Safety Code. This affidavit is the only summary judgment evidence submitted by the Crisis Center.

In response to the Crisis Center's motion, the Brookses amended their petition. They also filed a response to the summary judgment motion, in which they asserted that their amended petition did not contain any judicial admissions that would defeat their causes of action, and that the Crisis Center's sovereign immunity is waived for their claims of personal injury caused by the condition or use of personal and real property. Attached to the Brookses' response was James's affidavit, which states:

I was put in a small room where I was not restrained until after I had injured myself on the mirror in the room. I was injured when I broke a reflecting mirror in the small room at the Crisis Center. From the time I was put into the room, no one checked on me until after the mirror was broken. The primary cause of my injury at that time was that I was allowed to remain unsupervised for an extended period of time, despite the fact that there was a window in the door to my room which could have been used for convenient supervision. Then I was further injured as I had my body ground into the pieces of glass on the floor and was beat up when agents of the Crisis Center put me in restraints. However, I removed the wrist restraints with my teeth when I was again unsupervised.

The injuries I suffered include but are not limited to a chipped tooth, the cracking of my hip, or aggravation of an existing crack, bruises, cuts and abrasions and mental health injuries each as a direct and proximate cause of the agents of the Crisis Center using excessive force in restraining me and the use or misuse of restraint devices and the holding room itself.

Attached to the affidavit were pictures of the property, including restraints and a room containing a bed and mirror, that James claimed was used or misused. James's affidavit and the accompanying pictures were the only summary judgment evidence submitted by the Brookses.

Judicial Admissions

Generally, pleadings do not constitute summary judgment proof. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). But if a plaintiff's pleadings contain judicial admissions negating the cause of action, summary judgment may properly be granted on the basis of the pleadings. See Texas Dep't of Corrections v. Herring, 513 S.W.2d 6, 9 (Tex.1974). Judicial admissions are "[a]ssertions of fact, not pled in the alternative, in the live pleadings of a party." Houston First American Sav. v. Musick, 650 S.W.2d 764, 767 (Tex.1983) (emphasis added). Unlike statements in live pleadings, statements contained in superseded pleadings are not conclusive and indisputable judicial admissions. See Sosa v. Central Power & Light, 909 S.W.2d 893, 895 (Tex.1995); see also Johnson v. Rollen, 818 S.W.2d 180, 183 (Tex.App.--Houston [1st Dist.] 1991, no writ) (fact that a plaintiff files an amended petition after a summary judgment motion is filed does not change the defendant's summary judgment burden to establish its entitlement to summary judgment on all issues raised by the live pleadings).

As noted above, the Brookses amended their petition after the Crisis Center filed its motion for summary judgment. The Brookses therefore argue that the summary judgment cannot be upheld on the basis that statements in the earlier petition constituted judicial admissions, because those statements were no longer part of a live pleading. The Crisis Center acknowledges that the amended petition superseded the earlier petition, but it argues that the amended petition left most of the judicial admissions substantially intact.

The Brookses alleged in both their first amended petition and their second amended petition that the Crisis Center put James in a room where he was susceptible to injury without taking precautions to protect him from himself and the intentional behavior of Crisis Center employees and that Crisis Center employees used hand and leg restraints, clubs, and other weapons to restrain James in violation of his constitutional right to due process. The Crisis Center argued in its motion for summary judgment that the Brookses' allegations of constitutional violations and intentional conduct operated as judicial admissions barring their recovery under the Tort Claims Act, which only subjects governmental units to liability for its employees' negligent behavior. Although the Brookses attempted to allege constitutional violations involving intentional conduct, they alternatively alleged that Crisis Center employees acted negligently. For example, the Brookses' petition stated that Crisis Center employees inflicted severe injury on James, with "such infliction of injury either being negligent in violation of...