Lowe v. Texas Tech University

• Decision Date: 20 November 1975
• Docket Number: No. 5476,5476
• Parties: Andy LOWE, Appellant, v. TEXAS TECH UNIVERSITY, Appellee.
• Court: Texas Court of Appeals

Page 337

530 S.W.2d 337

Andy LOWE, Appellant, v. TEXAS TECH UNIVERSITY, Appellee.

No. 5476.

Court of Civil Appeals of Texas Waco.

Nov. 20, 1975.

Rehearing Denied Dec. 11, 1975.

Garner, Vickers, Purdom & Nelson, Lubbock, Spillman & Spillman (Paul Spillman), Wellington, for appellant.

John L. Hill, Atty. Gen., David M. Kendall, 1st Asst. Atty. Gen., Austin, for appellee.

OPINION

JAMES, Justice.

This is a case involving the Texas Tort Claims Act. Plaintiff-Appellant Andy Lowe sued Defendant-Appellee Texas Tech University for damages for personal injuries allegedly incurred by Plaintiff while playing football for the University. The Defendant University filed 'pleas to the Jurisdiction and in Abatement' asserting that the 'allegations in Plaintiff's Petition fail to bring him within the coverage of the Texas Tort Claims Act' (Article 6252--19, Vernon's Texas Civil Statutes). Thereupon, Plaintiff filed his First Amended Original Petition. Thereafter, the trial court after hearing sustained the Defendant's above described plea in abatement and to the jurisdiction and dismissed and abated Plaintiff's cause of action. We affirm.

Plaintiff alleged in his First Amended Original Petition, among other things, that in the year 1972 and prior thereto, he was a student at the Defendant University and was actively engaged in the athletic program of the University; that prior to the year 1972 he received an injury to his left knee while playing football for the Defendant on the varsity team; and that on September 16, 1972, while playing football in behalf of Defendant University, he received an additional injury to his left knee which is the subject matter of the damages sued for. Plaintiff alleged seven specific grounds of negligence against Defendant, three of which (same being Nos. 1, 2 and 5) he contends bring his case under the Tort Claims Act, Article 6252--19. Said grounds of negligence numbers 1, 2 and 5 are alleged as follows:

'(1) In failing to furnish proper equipment, braces and/or supporting devices to Plaintiff;

'(2) In failing to permit Plaintiff to wear proper equipment, braces and supporting devices available;

'(5) In furnishing equipment, uniforms, and pads which were defective.'

The pertinent portion of the Texas Tort Claims Act is found in Section 3 of Article 6252--19, which reads as follows:

'Sec. 3. Each unit of government in the state shall be liable for money damages for 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 to the claimant in accordance with the law of this state. * * *.' (emphasis supplied).

Plaintiff-Appellant's first point of error asserts the trial court erred in dismissing Plaintiff's cause of action because he says the Plaintiff's injury involved the use of tangible property by Defendant's employees, making Defendant liable under Section 3 of Article 6252--19. In this connection, Appellant contends:

'In the instant case, Defendant's employee provided Plaintiff with equipment and a uniform but failed to provide protection for Plaintiff's knee. The employee had tape available with which to wrap Plaintiff's knee and had often done so since Plaintiff's prior injury. However, on the day of Plaintiff's subsequent injury, the employee negligently failed to use the tape that was available to protect Plaintiff's knee. In furnishing Plaintiff with a uniform and pads without additional protection for his injured knee, the employee provided him with defective equipment. This constituted a negligent or wrongful omission involving the 'use of tangible property' within the meaning of Section 3 of the Texas Tort Claims Act.' We overrule this point.

As we understand the above-quoted portion of Section 3, for the Plaintiff's cause of action to fall within the statute and thereby avoid governmental immunity, the personal injuries must have been proximately caused From some condition or some use of tangible property. The gist of Plaintiff's alleged grounds of Defendant's negligence are based upon Defendant's failure to use tape to protect his injured knee. As we understand Plaintiff's contention, he is not asserting that any of the equipment, uniforms and pads furnished him were defective, but that Defendant was negligent in failing to use tape to furnish additional protection for his knee.

We believe Plaintiff's cause of action falls into the category of being based upon 'an error of judgment' on the part of Defendant's employee in failing to use the tape, rather than upon 'some condition or some use of tangible property,' in which event the Texas Tort Claims Act is not applicable, and sovereign immunity is not waived. Beggs v. Texas Department of Mental Health and Mental Retardation (San Antonio Tex.Civ.App.1973) 496 S.W.2d 252, writ refused. Or Plaintiff's cause of action, might be characterized as one wherein the Defendant failed to furnish proper medical care, rather than one wherein the injuries were caused from the condition or use of tangible property. See Texas Department of Corrections v. Herring (Tex.1974) 513 S.W.2d 6.

In short, we do not believe that Defendant's 'failure to use tape' on Plaintiff's knee is the type of negligent conduct includable in the language of the statute requiring that Plaintiff's injuries be 'caused from some condition or some use of tangible property.' In other words, we cannot say that by Defendant's failure to use tape, that Plaintiff's injuries were thereby caused by 'some use of tangible property.' For these reasons, we hold that Plaintiff's amended petition failed to state a cause of action under the Texas Tort Claims Act.

Appellant's second point of error contends that the Athletic Department of Texas Tech University was engaged in proprietary, non-governmental activities and for this reason Defendant is not protected by governmental immunity. We overrule this contention.

In the absence of a constitutional or statutory provision therefor, the state is not liable for the torts of its officers or agents. Texas Highway Department v. Weber (1...