Texas Dept. MHMR v. Lee

• Decision Date: 15 February 2001
• Citation: 38 S.W.3d 862
• Parties: (Tex.App.-Fort Worth 2001) TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION, THE STATE OF TEXAS, THE WICHITA FALLS STATE HOSPITAL, AND DON GILBERT IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION, APPELLANTS v. ROBIN LEE APPELLEE NO. 2-99-145-CV
• Court: Texas Court of Appeals

Page 862

38 S.W.3d 862 (Tex.App.-Fort Worth 2001)

TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION, THE STATE OF TEXAS, THE WICHITA FALLS STATE HOSPITAL, AND DON GILBERT IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION, APPELLANTS v. ROBIN LEE APPELLEE

NO. 2-99-145-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

February 15, 2001

FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

[Copyrighted Material Omitted] Before CAYCE, C.J.; LIVINGSTON, J.; and RICHARDS, J., Sitting by Assignment.

OPINION

JOHN CAYCE, CHIEF JUSTICE

Appellee Robin Lee was sexually assaulted by an HIV-positive patient while she was under the care of Wichita Falls State Hospital. She filed suit against appellants under the Texas Tort Claims Act alleging that her injuries were caused by a condition or use of tangible personal property¹ because employees of Wichita Falls State Hospital failed to lock the interior door to her room and to provide locking devices on the door separating the women's and the men's wings of the hospital. Lee also seeks damages under the "patient's bill of rights" provision of the Texas Health and Safety Code for abuse, neglect, and exploitation.² Appellants filed a plea to the jurisdiction based on sovereign immunity which the trial court denied.³ In this interlocutory appeal, appellants contend that the trial court erred in denying their plea because Lee's suit against appellants is jurisdictionally barred by sovereign immunity.

We hold that Lee has not alleged a cause of action under the Tort Claims Act because the unlocked hospital doors did not proximately cause Lee's injury, but merely furnished the condition that made the assault and resulting injury possible. We further hold that the legislature has not waived the State's immunity from suit for violations of the patient's bill of rights. We will, therefore, reverse and render judgment dismissing Lee's suit against appellants.

Background Facts

On April 22, 1994, Lee was sexually assaulted by an HIV-positive patient while she was under the care of Wichita Falls State Hospital (the hospital) for a mental disorder that caused her to be hypersexual and promiscuous. She subsequently filed suit against appellants Texas Department of Mental Health and Mental Retardation (MHMR), the State of Texas, the hospital, and Don Gilbert, Commissioner of MHMR (collectively, appellants). In her suit, Lee alleged a cause of action under section 101.021(2) of the Texas Tort Claims Act based on the hospital's failure to lock the door to her room and to provide locking devices on the doors between the men's and women's wings of the hospital, which she contends constituted both a misuse of tangible property and a defective condition that proximately caused her injuries. Lee also alleged a cause of action under section 321.002 of the Texas Health and Safety Code for violations of the "patient's bill of rights"; specifically, "freedom from mistreatment, abuse, neglect, and exploitation."⁴

Appellants filed a plea to the jurisdiction, asserting that Lee had failed to allege facts that would support a claim under section 101.021(2) of the Tort Claims Act and that sovereign immunity deprived the trial court of subject matter jurisdiction over her suit for violations of the patient's bill of rights. The trial court denied the plea stating only that the plea "lack[s] merit."

Standard of Review

We review a trial court's ruling on a plea to jurisdiction de novo.⁵ In determining whether jurisdiction exists, we accept the allegations in the pleadings as true and construe them in favor of the pleader.⁶ We must also consider evidence relevant to jurisdiction when it is necessary to resolve the jurisdictional issue raised.⁷

Sovereign Immunity

Sovereign immunity, unless waived, protects the State of Texas, its agencies, and its officials from lawsuits for damages, absent legislative consent to sue the State.⁸ The doctrine of sovereign immunity embraces two principles: immunity from suit and immunity from liability.⁹ Immunity from suit bars a lawsuit against the State, unless the legislature expressly gives its consent to the suit.¹⁰ Absent such consent, the trial court does not have subject matter jurisdiction to hear the case.¹¹

By contrast, immunity from liability protects the State from judgments even if the legislature has expressly given consent to the suit.¹² The legislature neither creates nor admits liability by granting permission to be sued.¹³ Immunity from liability is an affirmative defense, not a jurisdictional issue.¹⁴

The legislature may consent to suit and liability by statute or by legislative resolution.¹⁵ "It is a well-established rule that for the Legislature to waive the State's sovereign immunity, it must do so by clear and unambiguous language."¹⁶ We are mindful, however, that the rule requiring a waiver of sovereign immunity to be clear and unambiguous cannot be applied so rigidly that the almost certain intent of the legislature is disregarded.¹⁷ "Legislative intent remains the polestar of statutory construction."¹⁸ Thus, if a statute leaves no reasonable doubt of its purpose, we do not require perfect clarity, even in determining whether sovereign immunity has been waived.¹⁹

In determining whether immunity from suit has been waived under the Tort Claims Act, we are also instructed that, while waiver of immunity under the Act is to be liberally construed, this liberal construction must be balanced with the legislative intent of waiving immunity only to a limited degree.²⁰

[I]t is important to recognize that the Legislature intended the waiver in the Act to be limited, not unlimited . . . .

. . . .

. . . [T]he 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.²¹

With these rules to guide us, we will examine the Tort Claims Act and the Health and Safety Code as they apply, if at all, to Lee's claims against appellants to determine whether the use or condition of property alleged by Lee proximately caused her injuries, and whether the legislature has by clear and unambiguous language waived sovereign immunity for Lee's patient's bill of rights claim.

Tort Claims Act

Under the relevant provisions of the Tort Claims Act, a governmental unit in this 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.²²

To state an actionable claim under section 101.021(2) based upon the use or misuse of tangible property, personal injury or death must be proximately caused by the condition or use of tangible property.²³ The requirement of proximate cause requires more than mere involvement of the property.²⁴ Although the degree of involvement is difficult for courts to discern in certain cases, the rationale and holdings of supreme court decisions make clear that there must be a close causal relationship between the condition or use of the property and the resulting injury.²⁵ This is also the rule followed by the majority of our sister courts.²⁶

In this case, Lee complains of both a use of property--leaving the interior door to her room unlocked--and a condition of property--no locking device on the door leading from the men's wing to the women's wing of the hospital. Neither can be said to have caused Lee's injuries from the sexual assault. "Property does not cause injury if it does no more than furnish the condition that makes the injury possible."²⁷ The unlocked doors permitted the assailant's entry into Lee's room but did not cause the sexual assault resulting in her injuries. Although the assailant's entry through the unlocked doors was part of a sequence of events that ended in the sexual assault, the use and unlocked condition of the doors were too attenuated from Lee's injuries to be said to have caused them. The true substance of Lee's complaint is that the sexual assault was caused, not by the condition or use of the hospital doors, but by the failure of the hospital staff to protect her from her assailant when they knew that she was hypersexual and promiscuous and that male patients had exploited her hypersexuality in the past; conduct that does not fall within the Act's limited waiver of immunity.

The facts in this case closely resemble the facts in Bossley. In Bossley, a patient escaped from the hospital and committed suicide. The patient was able to exit through the locked double doors of the hospital by following a hospital employee who had failed to close the self-locking interior door and then by pushing that employee aside after the employee had unlocked the exterior door.²⁸ The court held that there was no waiver of immunity in that case because neither the use of property (unlocking the outer door) nor the condition of property (the unlocked inner door) caused the patient's suicide.²⁹ According to the court, the patient's death was too distant geographically, temporally, and causally from the open doors at the hospital to be said to have caused his death. The court determined that the "real substance" of plaintiff's complaint in Bossley was that the death was caused, not by a condition or use of property which was required to bring the suit within the Act's limited waiver of immunity, but by the failure of the hospital staff to restrain him once they learned that he was still suicidal.³⁰

This case is also analogous to Amador v. San Antonio State Hospital³¹ and Koehler.³² In Amador, an unsupervised patient was sexually assaulted by several other patients while on the hospital grounds. The patient claimed that by unlocking the doors to permit her to go outside unsupervised, the hospital misused property...