San Antonio State Hosp. v. Koehler

• Decision Date: 17 June 1998
• Docket Number: No. 04-97-00486-CV,04-97-00486-CV
• Citation: 981 S.W.2d 32
• Parties: SAN ANTONIO STATE HOSPITAL, Appellant, v. Kim KOEHLER, Appellee.
• Court: Texas Court of Appeals

Page 32

981 S.W.2d 32

SAN ANTONIO STATE HOSPITAL, Appellant, v. Kim KOEHLER, Appellee.

No. 04-97-00486-CV.

Court of Appeals of Texas,

San Antonio.

June 17, 1998.

Rehearing Overruled Sept. 9, 1998.

S. Ronald Keister, Assistant Attorney General, Austin, for Appellant.

Thomas A. Crosley, Branton & Hall, P.C., San Antonio, for Appellee.

Before HARDBERGER, C.J., LOPEZ, J., and GREEN, J.

OPINION

HARDBERGER, Chief Justice.

INTRODUCTION

This is an appeal from a jury verdict against appellant, San Antonio State Hospital (SASH), on a premises defect claim. A jury awarded appellee, Kim Koehler, $97,015.00, plus prejudgment interest of $34,128.12, post judgment interest, and costs, for injuries she sustained after escaping from SASH, where she was a patient. In light of a recent decision by the Texas Supreme Court, we reverse the judgment of the trial court and render judgment in favor of SASH. Koehler's conditional cross points are overruled.

FACTS

In October 1992, Koehler, then 17, was a patient at SASH. She suffered from undifferentiated schizophrenia and had been judicially committed to the hospital. She was taking twenty-one separate medications and had begun to show some signs of improvement, although her condition is incurable.

After attending a hospital Halloween party one afternoon, Koehler escaped the hospital grounds by exiting through a gaping hole in the fence that surrounds the facility. The fence, according to testimony, is about six-feet high, chain link, and runs around the entire premises. It is interrupted by a guard station, where guards admit and check in visitors. The fence, according to testimony and photographs, had at the time several large holes and, in places, could be lifted from the ground.

Koehler left the hospital voluntarily, with a male acquaintance, a former ex-patient who had apparently been visiting her nearly every day for the past month. Testimony at trial indicated that this former patient had gotten onto the premises through a hole in the fence. There was some testimony at trial that hospital policy prohibited visits from ex-patients; this testimony was disputed.

Koehler testified, by way of a videotaped deposition, that her male companion took her to a boarding house, where he made sexual advances, threatened her with a butcher knife, and eventually raped her. There was also evidence that Koehler "decompensated," or regressed, due to the sudden deprivation of her medications. Her mental state became increasingly impaired, and her relationship with her companion increasingly violent. After the two had a particularly physical fight, the proprietor of the boarding house called the police, who returned Koehler to the hospital. She had been absent for three days.

The morning after her return to the hospital, Koehler told her mother that she had been raped. She was given a medical examination, and the results of that examination were consistent with a sexual assault. The two women reported the incident to the police.

While waiting for her daughter during the medical examination, Koehler's mother learned from a hospital employee that there were several gaping holes in the fence around SASH, and that staff members knew about the holes. After complaining to hospital officials, Koehler's mother brought suit against SASH on behalf of herself (for bystander liability and as a guardian of Koehler) and on behalf of her daughter. Instructed verdicts narrowed the claims to one: liability for a premises defect. In addition, the claims brought on Cheryl's behalf were dismissed. However, SASH's requests for instructed verdicts, brought on the grounds that the hospital, as a state entity, was immune from suit, were denied. The jury found in favor of Koehler, and SASH appealed to this court, bringing the following points of error: (1) that because maintaining the fence was a decision left to SASH's discretion, the hospital was immune from suit; (2) that, as a matter of law, the hole in the fence could not have proximately caused Koehler's injuries; (3) that SASH had no duty to protect Koehler from the criminal acts of third parties that occurred off hospital premises; (4) that the court gave erroneous instructions and questions to the jury; (5) that there was no evidence or insufficient evidence of unreasonable risk of harm; (6) that there was no evidence or insufficient evidence that SASH had actual knowledge of a danger; (7) that there was no evidence or insufficient evidence that Koehler did not have actual knowledge of the danger; (8) that there was no or insufficient evidence that the condition of the premises was the proximate cause of Koehler's injuries; and (9) that because a governmental entity is not responsible for premises defects that existed prior to January 1, 1970, SASH cannot be liable for injuries caused by a fence that was built almost 100 years ago. We find as a matter of law that a hole in a fence that allows a mental patient to escape is not a "condition or use of tangible personal or real property" that could be the proximate cause Koehler's injuries. ¹ See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471-72 (Tex.1991) (existence of proximate cause may be established as a matter of law where "the circumstances are such that reasonable minds cannot arrive at a different conclusion").

Under the Tort Claims Act, a governmental entity may be held liable for "personal injury and death so caused by a condition or use of tangible personal or real property." TEX. CIV. PRAC. & REM.CODE ANN. § 101.021 (Vernon 1997). The parameters of this limited liability have been difficult to define. Courts have struggled to determine what is use of property, for which an entity may be held liable, and what is nonuse of property, for which an entity may not be held liable. See, e.g., University of Tex. Medical Branch at Galveston v. York, 871 S.W.2d 175 (Tex.1994); Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30 (Tex.1983); Huckabay v. Irving Hosp. Found., 802 S.W.2d 758 (Tex.App.--Dallas 1990, writ denied); Weeks v. Harris Co. Hosp. Dist., 785 S.W.2d 169 (Tex.App.--Houston [14th Dist.] 1990, writ denied). Courts have struggled to determine what the statute means by "tangible property." See, e.g, Kerrville State Hosp. v. Clark, 923 S.W.2d 582 (Tex.1996); Clawson v. Wharton Co., 941 S.W.2d 267 (Tex.App.--Corpus Christi 1996, writ denied); Thomas v. Brown, 927 S.W.2d 122 (Tex.App.--Houston [14th Dist.] 1996, writ denied); Robinson v. City of San Antonio, 727 S.W.2d 40 (Tex.App.--San Antonio 1987, writ ref'd n.r.e.). And courts have struggled with what is meant by "caused" the injury. See, e.g., Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992) (discussing elements of causation); Bossley v. Dallas County Mental Health & Mental Retardation, et al., 934 S.W.2d 689, 697 (Tex.App.--Dallas 1995) (discussing whether injury was too remote from negligent act), rev'd, 968 S.W.2d 339 (Tex.1998). It is this latter issue that we address.

A party's conduct is the proximate cause of injury if the action of the party is a substantial factor in bringing about the injury (the cause in fact) and if the injury is foreseeable. See Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 549-51 (Tex.1985). Because we find that the hole in the fence could not have been the cause in fact of Koehler's injuries, we need not address whether those injuries were foreseeable.

Cause in fact will not be found where the connection between the negligence and the injury is too remote. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). In ordinary negligence cases, the Texas Supreme Court has stated that cause in fact will not exist where the defendant's conduct does no more than "furnish the condition that makes the plaintiff's injury possible." Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.1995). However, this principle had not, until very recently, been held to apply to premises conditions cases. See Holder v. Mellon Mortgage Co., 954 S.W.2d 786, 801 (Tex.App.--Houston [14th Dist.] 1997, n.w.h.).

In Holder,the court of appeals held that applying the Allbritton principle to premises defect cases is "antithetical to the basis for imposing liability on landowners to those who come onto their property and are injured by a condition of that property." Id. This analysis is certainly reasonable. The entire basis for liability based on the condition of a premise has been that the condition at issue either directly injured the plaintiff or made such injury possible. Under this reasoning, landowners have been held liable for injuries caused by their failure to guard against the criminal acts of third parties. See Nixon, 690 S.W.2d at 550 (allowing liability finding where injury resulted from failure to lock doors on vacant apartment building); Holder, 954 S.W.2d at 800-801 (failure to secure garage not too attenuated to constitute legal cause of injury from third party's criminal act); Allright, Inc. v. Pearson, 711 S.W.2d 686, 690 (Tex.App.--Houston [1st Dist.] 1986), aff'd in part, and rev'd in part on other grounds, 735 S.W.2d 240 (Tex.1987) (affirming finding of liability where insufficient security permitted robbery to occur on premises).

However, the supreme court apparently now disagrees with this reasoning, at least in claims involving the Texas Tort Claims Act. In a case analogous to the one before this court, the supreme court has held that a property condition does not cause an injury if it does no more than furnish the condition that makes the injury possible. ² Dallas County Mental Health and Mental Retardation, et al., v. Bossley, 968 S.W.2d 339, 341 (Tex.1998).

In Bossley, the parents of a 27-year-old mental patient sued the county hospital after their son escaped through an unlocked door and, in an apparent suicide, ran into the path of an oncoming truck. The trial court granted the hospital's motion for summary judgment, but the court of appeals reversed. See Bo...