Dallas County Mental Health and Mental Retardation v. Bossley

Decision Date23 June 1998
Docket NumberNo. 97-0028,97-0028
Citation968 S.W.2d 339
Parties41 Tex. Sup. Ct. J. 653 DALLAS COUNTY MENTAL HEALTH AND MENTAL RETARDATION, et al., Petitioners, v. Albert BOSSLEY, individually, Elaine Bossley, individually, and as representatives of the estate of Roger Arthur Bossley, deceased, Respondents.
CourtTexas Supreme Court

David J. LaBrec, Katherine Elizabeth Anderson, Douglas Barnes, Dallas, Michael W. Eady, Austin, John F. O'Donnell, Dallas, for Petitioners.

Robert G. Oake, for Respondents.

HECHT, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, GONZALEZ, ENOCH, OWEN, BAKER and HANKINSON, Justices, join.

We again construe and apply the waiver of governmental immunity for liability for "personal injury and death [proximately] caused by a condition or use of tangible personal or real property" contained in Section 101.021(2) of the Texas Tort Claims Act, TEX. CIV. PRAC. & REM.CODE § 101.021(2). We also consider the scope of governmental employees' immunity provided by Section 101.106 of the Act. We conclude that the court of appeals erred in reversing summary judgment for defendants. 934 S.W.2d 689.


Following a failed suicide attempt, 27-year-old Roger Bossley was involuntarily committed to Parkland Memorial Hospital in Dallas and later transferred to Hillside Center, a treatment facility owned and operated by the Dallas County Mental Health and Mental Retardation Center. Patients resident at Hillside are allowed some freedom to come and go, and during his treatment Roger left Hillside on various outings and visited his parents on a weekend pass. For two weeks he seemed to be recovering from the severe depression that had driven him to try to take his own life, but after a rehabilitation counselor unaware of his condition ridiculed his employment history, Roger became so despondent that he asked another patient at Hillside where he could get a gun so he could kill himself upon his release. That patient immediately reported Roger's statement to Dr. Urschel, one of the treating physicians, who noted in his medical chart that Roger was "a definite risk to himself." Two days later another treating physician, Dr. Kamphaus, ordered that Roger be returned to Parkland for further evaluation in a more restrictive environment. The transfer documents indicated that Roger remained suicidal despite his hospitalization.

As soon as Roger was ordered transferred, Hillside personnel, following standard procedure, locked the front door of the residential unit because patients often resisted transfer to more restrictive facilities and tried to elope. Roger had himself indicated his reluctance to being transferred, telling Hillside staff members that he feared it would result in his being committed to Terrell State Hospital. Although the front door was locked, a self-locking glass door just inside the front door was left open. The physicians and staff considered further precautions against Roger's possible suicide and elopement, but none were taken.

The next day as Angela Jones, a Hillside technician, was leaving for lunch, she noticed Roger talking on a telephone in the hallway. Passing through the inner doorway, she left the self-locking inner door open behind her. Before unlocking the outer door, she looked around and saw no one nearby. But during the few seconds it took Angela to unlock and open the door, Roger approached her from behind, pushed her aside, and fled. Hillside staff members chased Roger about half a mile to Interstate Highway 30, where he attempted to hitchhike a ride with passing motorists, first on one side of the freeway and then on the other. As Roger was approached by Hillside personnel and police who had by then joined in pursuit, he leaped into the path of a truck and was killed.

Roger's parents, Albert and Elaine Bossley, sued Dallas County MHMR, Jones, Kamphaus, Urschel, and eight other Hillside employees for wrongful death and on behalf of Roger's estate. Defendants moved for summary judgment on the grounds that because Dallas County MHMR is a governmental unit, TEX. HEALTH & SAFETY CODE § 534.001, it is immune from liability, TEX. CIV. PRAC. & REM.CODE § 101.021(2), and so are its employees, id. § 101.106. Plaintiffs responded that their claims came within the statutory waiver of immunity for "personal injury and death [proximately] 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". Id. § 101.021(2). Specifically, plaintiffs contended that Roger's death was caused by Jones's unlocking the outer door without first locking the inner door or checking on Roger's whereabouts. The district court granted defendants' motion.

Plaintiffs appealed, and the court of appeals reversed the summary judgment. From a statement in Salcedo v. El Paso Hospital District, 659 S.W.2d 30, 33 (Tex.1983), that negligent conduct for which immunity is waived "must involve 'some condition or some use' of tangible property", the court reasoned that the involvement of some condition or use of tangible property is enough for immunity to be waived. 934 S.W.2d at 695. Concluding that Jones's conduct involved the use or condition of the doors to the building, the court remanded the case for further proceedings.

In this Court, defendants contend that they are immune from liability to plaintiffs under Sections 101.021(2) and 101.106 of the Tort Claims Act. The Attorney General has filed an amicus curiae brief, arguing that "[n]egligence in the use or condition of real property does not state a cause of action under the Act, unless it is a premise defect claim under section 101.022(1)." See University of Texas-Pan American v. Valdez, 869 S.W.2d 446 (Tex.App.--Corpus Christi 1993, writ denied); but see City of Waco v. Hester, 805 S.W.2d 807 (Tex.App.--Waco 1990, writ denied). Defendants do not make this argument, however, and we find it unnecessary to address it. We confine our consideration to the parties' contentions.


We take as our starting point the premise that in Texas a governmental unit is immune from tort liability unless the Legislature has waived immunity. Harris County v. Dillard, 883 S.W.2d 166, 168 (Tex.1994) (citing authorities). The decision as to who should bear responsibility for governmental employees' misconduct should be made by the people's representatives. Therefore, whether a governmental unit is immune from liability for a particular claim depends entirely upon statute. The pertinent statute in this case is the Tort Claims Act, TEX. CIV. PRAC. & REM.CODE §§ 101.001-.109. Before looking at the provision applicable here, it is important to recognize that the Legislature intended the waiver in the Act to be limited, not unlimited, as shown in the history of its passage.

In 1967, the House of Representatives passed H.B. 728, which waived governmental immunity completely. H.J. OF TEX., 60 th Leg., R.S. 1271 (1967). But the bill died on a tie vote in the Senate Committee on Jurisprudence. See Joe R. Greenhill & Thomas V. Murto III, Governmental Immunity, 49 TEX. L.REV. 462, 467 (1971). Both legislative houses then commissioned interim study committees to consider whether and to what extent governmental immunity should be waived. See SENATE INTERIM COMMITTEE TO STUDY GOVERNMENTAL IMMUNITY, REPORT TO THE 61 ST LEGISLATURE (1969) (in response to S.R. 733, 61st Leg., R.S. (1967)); HOUSE INTERIM COMMITTEE TO STUDY DOCTRINE OF SOVEREIGN IMMUNITY, REPORT OF THE HOUSE INTERIM COMMITTEE TO STUDY DOCTRINE OF SOVEREIGN IMMUNITY 1969 (in response to Tex. H.S.R. 396, 60th Leg., R.S. (1967)). Although the interim committees recommended no more than a very limited waiver, Senator Oscar Mauzy and Representative Temple Dickson sponsored bills that would again waive governmental immunity in most circumstances. See Lowe v. Texas Tech Univ., 540 S.W.2d 297, 302 (Tex.1976) (Greenhill, C.J., concurring). While Representative Dickson's bill, H.B. 456, was pending, however, the Legislature enacted H.B. 117, which called for a more limited waiver of immunity. See id. H.B. 117 was still too broad for Governor Preston Smith, who vetoed it, explaining that while "the time has arrived when the doctrine of absolute governmental immunity must be reconsidered ... [H.B. 117] is so broad and all-encompassing in scope as to impose upon the taxpayers of the State of Texas an onerous burden.... [A] more limited modification of the doctrine of governmental immunity should be considered by the Legislature." Veto Message of Gov. Smith, Tex. H.B. 117, H.J. OF TEX., 61st Leg., R.S. 1621 (1969). In response, the Legislature passed an amended version of H.B. 456 containing a more restricted waiver of immunity than H.B. 117, which the Governor signed into law as the Tort Claims Act. Tort Claims Act, 61 st Leg., R.S., ch. 292, 1969 Tex. Gen. Laws 874 (then codified at TEX.REV.CIV. STAT. ANN. art. 6252-19 (Vernon 1970)).

The many compromises necessary to pass the Act obscured its meaning, making its application difficult in many cases, including this one. But one thing is clear: the waiver of immunity in the Tort Claims Act is not, and was not intended to be, complete. Arguments for applications of the Act that would essentially result in its waiver becoming absolute must therefore be rejected as contrary to the Act's fundamental purpose.


With this thought in mind, we turn to the language of the Act, which, as respects this case, provides:

A governmental unit in the state is liable for:

* * *

(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 § 101.021(2). For guidance in applying this provision, the court of appeals looked to our ...

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