Delaney v. University of Houston

• Decision Date: 26 April 1990
• Docket Number: No. C14-88-1044-CV,C14-88-1044-CV
• Citation: 792 S.W.2d 733
• Parties: 61 Ed. Law Rep. 1448 Andrea Marie DELANEY, Appellant, v. The UNIVERSITY OF HOUSTON, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 733

792 S.W.2d 733

61 Ed. Law Rep. 1448

Andrea Marie DELANEY, Appellant, v. The UNIVERSITY OF HOUSTON, Appellee.

No. C14-88-1044-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

April 26, 1990.

Rehearing Denied June 14, 1990.

A. Glenn Diddel, III, Houston, for appellant.

Martha H. Allan, Norberto Flores, Austin, for appellee.

Before CANNON, DRAUGHN and ELLIS, JJ.

OPINION

CANNON, Justice.

This is an appeal from a summary judgment. During the 1983-84 school year, appellant Andrea Marie Delaney attended the University of Houston on an athletic scholarship to play volleyball. The scholarship provided for her educational, housing and meal expenses, and Ms. Delaney was housed in Settegast Dormitory, an on-campus facility. Prior to the Easter recess, Ms. Delaney contacted the dormitory management several times to report that an exterior door was being propped open to allow access because a key was broken off in the lock. However, the door was not repaired. Ms. Delaney remained at the University during Easter recess due to compulsory volleyball practice. On the night of March 12, 1984, a man entered the propped-open door, found his way to Ms. Delaney's room and raped her at gunpoint.

Ms. Delaney sued the University for breach of contract and tort damages. The University filed a motion for summary judgment stating that her claims were barred by the Texas Tort Claims Act. The trial court granted the University's motion, stating that all of the claims, including those for breach of contract and for tort damages, were barred as a matter of law by the Act, specifically TEX.CIV.PRAC. & REM.CODE ANN. § 101.057(2) (Vernon 1986). Ms. Delaney appealed and we affirm the summary judgment.

The summary judgment rule provides a method of summarily terminating a case when it clearly appears that only a question of law is involved and that there is no genuine issue of fact. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962). Summary judgments are reviewed according to the following rules:

1. The movant for summary judgment has the burden of showing that 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 favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Ms. Delaney challenges the summary judgment with four points of error. The first three points have to do with the trial court's disposition of her contract and tort claims and are argued together. Ms. Delaney specifically argues that the trial court erred in granting the University summary judgment on her breach of contract claim; on her claim for torts caused by the University during the course and scope of its proprietary activities in running a dormitory; and on her additional claims under the Texas Tort Claims Act.

The state is not liable for torts of its officers or agents in the absence of a constitutional or statutory provision therefor. Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976). State universities have been held to be agencies of the state and to enjoy sovereign immunity. Bagg v. University of Texas Medical Branch at Galveston, 726 S.W.2d 582, 584 (Tex.App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.); Lowe, 540 S.W.2d at 298. The Texas Tort Claims Act, which became effective on January 1, 1970, expressly waives governmental immunity for all governmental units to the extent of the liability expressed in the Act. However, the Act also contains a substantial list of exceptions and exclusions. Turvey v. City of Houston, 602 S.W.2d 517, 519 (Tex.1980). Included among the exceptions is section 101.057(2), which states that the Act "does not apply to a claim arising out of assault, battery, false imprisonment, or any other intentional tort...." In this case, the trial court found that any liability on the part of the University was foreclosed by section 101.057(2).

Preliminarily, Ms. Delaney argues that the University offered no summary evidence to support any of its contentions but instead relied on its pleadings. She asserts that pleadings do not constitute summary judgment proof. In Hidalgo v. Surety Sav. and Loan Ass'n, the supreme court stated that pleadings simply outline the issues but are not evidence, even for summary judgment purposes. 462 S.W.2d 540, 543 (Tex.1971). However, the court also noted the following:

We are not to be understood as holding that summary judgment may not be rendered, when authorized, on the pleadings, as, for example, when suit is on a sworn account under Rule 185, Texas Rules of Civil Procedure, and the account is not denied under oath as therein provided, or when the plaintiff's petition fails to state a legal claim or cause of action. In such cases summary judgment does not rest on proof supplied by pleading, sworn or unsworn, but on deficiencies in the opposing pleading.

Id. at 543 n. 1. The University maintains that it specially excepted to Ms. Delaney's pleadings because she failed to state a cause of action under the Tort Claims Act. When she insisted on characterizing her claim as one arising from contract and not from sexual assault, the University relied on deficiencies in her pleadings and, in line with Hidalgo, moved for summary judgment. We find no problem with the summary judgment proof in this context.

In point of error one, Ms. Delaney argues that the trial court erred in granting the summary judgment on her breach of contract claims. Prior to matriculation, Ms. Delaney signed a housing and food service contract with the University. She contends the University has judicially admitted that the contract is legally enforceable because language in the document states that it is "legal and binding." She further argues that the University is liable for breach of contract regardless of its status as a state agency because the Texas Education Code provides that the University can sue and be sued on the basis of contractual obligations. She argues that the doctrine of sovereign immunity is therefore inapplicable.

The Board of Regents indeed has the power to sue and be sued in the name of the University. TEX.EDUC.CODE ANN. § 111.33 (Vernon Supp.1990). However, by granting permission to be sued, the legislature did not thereby admit liability or create liability in favor of the plaintiff, but merely granted permission to test the matter through the courts. State v. Brannan, 111 S.W.2d 347, 349 (Tex.Civ.App.--Waco 1937, writ ref'd); see also Jones v. Texas Gulf Sulphur Co., 397 S.W.2d 304, 307 (Tex.Civ.App.--Houston 1965, writ ref'd n.r.e.) (statute merely provides that a navigation district and its commissioners may sue and be sued in the courts of this state; it does not in any way militate against their governmental immunity).

Furthermore, regardless of the breach of contract characterization, the claims in this case arise out of an intentional tort. In Townsend v. Memorial Medical Center, a patient was raped in an elevator by an orderly while being transported from one floor to another. 529 S.W.2d 264, 265 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.). The patient stated a cause of action under the Tort Claims Act by alleging an injury that involved the use of a motor-driven vehicle and also the condition and use of tangible property. ¹ The court, however found that her cause of action was prohibited by the intentional tort exception of the Act and stated:

Although the appellant contends on appeal that the rape, an intentional tort, is not the gist of her complaint, her petition leaves no other fair construction possible. If the appellant believes she has stated a cause of action such that injury occurred without the criminal act committed by the hospital orderly, she has not so stated with sufficient clarity in her petition.

Id. at 267; see also Trevathan v. State, 740 S.W.2d 500, 502 (Tex.App.-Houston [1st Dist.] 1987, writ denied). Therefore, the trial court did not err in finding that Ms. Delaney's contract claims were barred by the Act. Point of error one is overruled.

In point of error two, Ms. Delaney argues that the trial court erred in granting the University summary judgment on her claims for torts caused by the University during the course and scope of its proprietary activities in running a dormitory.

Certain governmental entities, particularly municipalities, function in a dual capacity. Generally, activities carried on pursuant to the state's obligation to promote the general welfare of the public or which are voluntarily assumed for the benefit of the public are performed in a governmental capacity. Activities performed primarily for the benefit of the inhabitants of the affected entity or agency are proprietary. Genzer v. City of Mission, 666 S.W.2d 116, 119-20 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.). Negligent performance of proprietary functions can result in liability. See City of Gladewater v. Pike, 727 S.W.2d 514, 519 (Tex.1987). Governmental functions, however, are immune to the extent that immunity is not waived by the Tort Claims Act. Genzer, 666 S.W.2d at 119.

Although absolute governmental immunity has been substantially modified in recent years, thus far in Texas, the proprietary/governmental distinction has not been applied to acts performed by the state. The rationale has been stated thusly:

All authority possessed by a state is that conferred on it as a sovereignty by the people and consequently it can act in no other capacity than that of a sovereignty.... As a sovereignty, it is immune from liability for torts and since it can act in no other capacity than that of a sovereignty, it is necessarily immune from liability for torts at all times and in all its capacities.

State v. Brannan, 111 S.W.2d at...