Univ. of Tex. M.D. v. Baker

• Decision Date: 14 February 2013
• Docket Number: No. 14–11–01037–CV.,14–11–01037–CV.
• Citation: 401 S.W.3d 246
• Court: Texas Court of Appeals
• Parties: The UNIVERSITY OF TEXAS M.D. Anderson Cancer Center and The University of Texas System, Appellants v. Preston BAKER & Jennifer Baker, individually and as next Friends of Preston Baker, Jr., Jessica Baker, Cayla Baker and Caleb Baker, Appellees.

401 S.W.3d 246

The UNIVERSITY OF TEXAS M.D. Anderson Cancer Center and The University of Texas System, Appellants

v.Preston BAKER & Jennifer Baker, individually and as next Friends of Preston Baker, Jr., Jessica Baker, Cayla Baker and Caleb Baker, Appellees.

No. 14–11–01037–CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Dec. 4, 2012.

Rehearing and En Banc Overruled Feb. 14, 2013.

Sandra Faye Kim, Austin, for Appellants.

Scott Robelen, Dallas, Paul Francis Wieneskie, Arlington, for Appellees.

Panel consists of Justices BOYCE, McCALLY, and MIRABAL.^*

OPINION

SHARON McCALLY, Justice.

Appellees Preston Baker, Jennifer Baker, and their four children sued The University of Texas M.D. Anderson Cancer Center (MDA), The University of Texas System (UTS), and The Proton Therapy Center–Houston Ltd., L.L.P. (PTC) for claims based on personal injuries sustained by the Baker children. MDA and UTS filed a plea to the jurisdiction contending that sovereign immunity had not been waived. The trial court denied the plea, and MDA and UTS bring this interlocutory appeal. We affirm.

Background

The Bakers allege that Preston Baker was employed by MDA to use a milling machine to make bronze apertures by milling bronze plates, and in the course of using the milling machine, the machine emitted lead dust and contaminated his clothing. He wore his clothing home, where his family was also exposed to the lead dust, and his children suffered personal injuries.

MDA and UTS answered the Bakers' original and first amended petitions with special exceptions contending that MDA was “the proper defendant, and not [UTS].” Later, MDA and UTS filed a plea to the jurisdiction asserting sovereign immunity and attaching copies of the Bakers' first amended petition; the Bakers' response to MDA and UTS's earlier plea to the jurisdiction; ¹ and interrogatory responses from Preston and Jennifer Baker. The trial court held a hearing on the plea to the jurisdiction. The court orally denied the special exceptions but delayed ruling on the plea. The Bakers then filed a second amended petition alleging in part as follows:

PRESTON BAKER, Sr. has been employed by Defendant M.D. Anderson as a Machinist and Fabrication Technician in the Proton–Therapy Center (PTC) Machine Shop. Before Mr. Baker ever began working in the PTC Machine Shop, Defendants were aware of OSHA regulations generally, were aware of lead specific OSHA regulations, were aware that machinists such as Preston Baker, Sr. would potentially be exposed to lead in the process of making bronze apertures to shield patients from proton therapy beams, were aware of the need for monitoring to confirm exposure, were aware of the safety components required to eliminate or reduce exposures to employees, and were aware of the safety components required to eliminate exposures outside of the Machine Shop (take-home exposures).

Responsibility for compliance with OSHA regulations and Defendants' internal programs and procedures was assigned to various employees of Defendants, such as Environmental Health & Safety (EH & S), Principle Investigators, Area Managers, the Respiratory Protection Program Administrator, the Building Manager, and the PTC Administrator. These employees had a legal duty to provide the safety components that would eliminate or reduce lead exposures in the Machine Shop and eliminate exposures outside of the Machine Shop (take-home exposures). Because the employees of Defendants failed in their legal duty, Preston Baker, Sr. and other PTC workers were furnished tangible personal property lacking integral safety components and were required to use (misuse) tangible property, including motor driven equipment such as a milling machine, which created hazardous levels of toxic lead dust that left the Machine Shop on Mr. Baker's contaminated clothing. The Texas Department of State Health Services investigated the Baker family's elevated blood lead levels and found their home was not the source of exposure, that Mr. Baker's shoes and clothing were contaminated with lead, and traced the exposure to Mr. Baker's job for Defendants at the PTC. As a direct and proximate result of Defendants' negligence, Preston Baker unknowingly wore clothing contaminated with toxic lead dust home and his children were exposed to hazardous levels of toxic lead, developed elevated blood lead levels, which caused the injuries complained of in this action.

....

.... Defendants were aware [of regulations that require] the ‘employer shall assure that all protective clothing is removed at the completion of a work shift only in change rooms provided for that purpose,’ and provide specific containers for the clothing ‘which prevents dispersion of the lead outside the container.’ Despite these requirements, a February 11, 2005 shop Safety Inspection Report noted that ‘[p]otential lead exposure monitoring was not conducted for the staff that cuts and mills lead. EH & S staff need to coordinate with shop personnel to complete this task.’

Defendant M.D. Anderson had on paper “Shop Safety Management Program” as of February 28, 2005. The program required, among other things, “hazard analysis,” dust collection or exhaust systems in compliance with [OSHA regulations], and wearing appropriate protective equipment and attire.

....

[T]he integral safety components required to prevent both PTC employee and take-home exposures was not provided. Instead, PTC workers, including Mr. Baker, were furnished tangible personal property lacking these integral safety components, and were required to use (or, in light of the lack of integral safety component, misuse) tangible personal property, including motor driven equipment such as a milling machine.... Toxic lead dust was generated when Mr. Baker and other Machine Shop workers used the tangible personal property provided by Defendants as intended and as they were instructed.

.... Employees were not using (not provided) appropriate personal protective equipment (PPE). There was no storage area for PPE and no ante-room ‘where contaminated clothing can be discarded before leaving the work area.’

....

PRESTON BAKER and JENNIFER BAKER do not in this action seek to recover for lead induced personal injuries to themselves. Their claims in this action arise out of and are related to the lead induced personal injuries of their children.

The trial court denied the plea to the jurisdiction, and MDA and UTS timely filed a notice of appeal from the interlocutory order. SeeTex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West Supp.2012).

Standard of Review

If a governmental unit has immunity from suit, the trial court lacks subject matter jurisdiction. Rusk State Hosp. v. Black, 392 S.W.3d 88, 102 (Tex.2012). Whether a court has subject matter jurisdictionis a question of law we review de novo. Tex. Dep't of Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex.2004). “When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause.” Id. at 226. “We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent.” Id.²

Analysis

MDA and UTS contend that the trial court erred by denying the plea to the jurisdiction because the pleadings and evidence fail to establish a waiver of governmental immunity under the Texas Tort Claims Act (TTCA). SeeTex. Civ. Prac. & Rem.Code Ann. §§ 101.001–101.109 (West 2011 & Supp.2012). A governmental unit is immune from suit unless the TTCA expressly waives immunity. Miranda, 133 S.W.3d at 224–25. The TTCA waives immunity in three areas: “use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.” Id. at 225 (quotations omitted). Section 101.021 of the TTCA provides that immunity is waived for:

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 A nn. § 101.021(2) (West 2011).³ We address each of MDA and UTS's four issues below.

I. Condition or Use of Tangible Personal Property that Proximately Causes Injuries

In their second and third issues, MDA and UTS contend the “pleadings and evidence conclusively establish” that (1) “no use of tangible personal property occurred”; (2) the injuries did not result from the “lack of an integral safety component of the milling machine”; and (3) the alleged injuries were not proximately caused by the condition or use of tangible personal property.

Initially, we note that MDA and UTS do not appear to challenge jurisdictional facts. They do not argue that any evidence attached to their plea would conclusively negate any factual allegations from the pleadings. Their arguments concern solely the legal effect of the facts alleged in the petition and whether such allegations establish a waiver of governmental immunity. Accordingly, we must determine whether the Bakers have alleged facts that, when liberally construed, affirmatively demonstrate a waiver of MDA and UTS's governmental immunity.

A. Use of Tangible Personal Property; Lack of Integral Safety Component

The Bakers allege, inter alia, that MDA and UTS used tangible personal property: motor driven equipment such as a milling machine. The Bakers also allege a condition of tangible personal property that gives rise to a waiver of immunity because of a lack of integral safety components. We find that these allegations are each independently sufficient to state a waiver of sovereign immunity.

1. Use of tangible personal property

For governmental immunity to be waived, a plaintiff must allege an injury was caused by the use or condition of tangible personal property. See id. The Texas Supreme Court has “consistently defined ‘use’ to mean ‘to put or bring into action or service; to employ for or apply to a given purpose.’ ”...