University of North Texas v. Harvey
| Decision Date | 29 August 2003 |
| Docket Number | No. 2-02-320-CV.,2-02-320-CV. |
| Parties | UNIVERSITY OF NORTH TEXAS, Appellant, v. Carla HARVEY and Catherine Grace Harvey, Appellees. |
| Court | Texas Court of Appeals |
John Cornyn, Greg Abbott, Atty. Gen. of Texas, Howard G. Baldwin, Jr., First Asst. Atty. Gen., Jeffrey S. Boyd, Deputy Atty. Gen. for Litigation, and Nelly R. Herrera, Chief, Tort Litigation Division, and S. Ronald Keister, Asst. Atty. Gen., Austin, for Appellant.
Randall & Turner, L.L.P., Randall E. Turner, Susan Bleil, Sondrea J. King, Fort Worth, for Appellees.
Panel B: HOLMAN, GARDNER, and WALKER, JJ.
The University of North Texas (UNT) appeals the denial of its plea to the jurisdiction asserting sovereign immunity. In three issues, UNT contends that the trial court erred by failing to grant UNT's plea to the jurisdiction because Appellees Carla and Catherine Grace Harvey1 failed to plead a waiver of sovereign immunity under the Texas Tort Claims Act. In a fourth issue, UNT asserts that no waiver of sovereign immunity exists for the Harveys' strict liability claims. We will affirm the trial court's denial of UNT's plea to the jurisdiction on the Harveys' negligence claims concerning the ice barrels. We will reverse the denial of UNT's plea to the jurisdiction on the Harveys' other negligence claims and on the Harveys' strict liability claims and render judgment for UNT on those claims.
Also pending before us is UNT's motion for reconsideration of our denial of its prior motion to strike the Harveys' appendix. UNT alleges that the appendix contains deposition testimony not presented to the trial court at the plea to the jurisdiction hearing. We carried UNT's motion for reconsideration with this case, and, in connection with our disposition of this appeal, we will deny it. We have utilized the Harveys' appendix as well as UNT's motion for reconsideration only to clarify the identity of the witnesses whose testimony was presented to the trial court via deposition excerpts at the plea to the jurisdiction hearing. We have not considered jurisdictional evidence that was included in the appendix but not presented to the trial court.
We review a trial court's ruling on a plea to the jurisdiction under a de novo standard of review because subject matter jurisdiction is a question of law. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999). The plaintiff has the burden to plead facts affirmatively showing the trial court has jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). A plea to the jurisdiction should, however, be decided without delving into the merits of the case. See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). A plea to the jurisdiction does not authorize an inquiry so far into the substance of the claims presented that the plaintiff is required to put on her case simply to establish jurisdiction. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex.2000).
Instead, in determining whether jurisdiction exists, we look to the allegations in the pleadings, accept them as true, and construe them in favor of the pleader. Tex. Ass'n of Bus., 852 S.W.2d at 446. We must accept the allegations in the petition as true unless the defendant pleads and proves that the plaintiff fraudulently made the allegations to confer jurisdiction. See Univ. of Houston v. Elthon, 9 S.W.3d 351, 355 (Tex.App.-Houston [14th Dist.] 1999, pet. dism'd w.o.j.). We also may consider evidence presented to the trial court to resolve the jurisdictional dispute, and we must do so when necessary to resolve the dispute. See Brown, 80 S.W.3d at 555; Bland ISD, 34 S.W.3d at 554.
UNT attached deposition excerpts to its plea to the jurisdiction, and the Harveys attached evidence and deposition excerpts to their response to UNT's plea to the jurisdiction. Applying a de novo standard of review to the jurisdictional issue, we review the Harveys' pleadings and all of the relevant jurisdictional evidence presented to the trial court to determine whether some evidence supports the Harveys' contention that their claims fall within the Texas Tort Claims Act's statutory waiver of immunity. See Brown, 80 S.W.3d at 555-56.
Following a high school drill team camp conducted in June 1999 on UNT's campus, fifty-eight campers, including Catherine Harvey, became very ill, suffering nausea, vomiting, and bloody diarrhea. A doctor with the United States Center for Disease Control assigned to investigate the incident, Dr. John T. Brooks, determined that the camp participants had been poisoned by E. coli bacteria. Catherine experienced extreme complications from the poisoning, was hospitalized, and almost died.
During the camp, UNT provided ice to the camp participants. UNT obtained the ice from the cafeteria ice-makers, transferred it to open garbage barrels, and placed the barrels in various outside locations. UNT failed to provide scoops to remove the ice from the barrels, and consequently, the campers used their hands their cups, and their water bottles to scoop the ice. UNT also provided a salad bar in its cafeteria, and bags of salad greens were often transferred to serving bowls on the salad bar directly from the bags without washing.
Dr. Brooks prepared a report and submitted his findings to state officials before leaving Texas.2 The report indicates that Dr. Brooks and two other CDC employees interviewed all campers and conducted an epidemiological investigation, an environmental investigation, and a laboratory investigation. Rectal swabs and stool samples obtained from UNT's cafeteria workers failed to reveal the presence of E. coli. Likewise, ice obtained from the cafeteria ice-makers did not reveal the presence of E. coli. The CDC investigation team eliminated some potential causes for the E. coli outbreak and ultimately concluded that the ice in the barrels and the salad bar were likely causes of the E. coli poisoning. Seventythree percent of the campers who reported consuming ice from the barrels on any day became ill.
Concerning the ice barrels, Dr. Brooks's report explains:
Throughout the drill team camp, the cafeteria placed trash barrels of ice in the foyer of the dormitory. The barrels were double-lined with plastic bags, punctured at the top to allow escape of trapped air.... However, no scoop was provided in the trash barrels; camp attendees could dip their hands or cups directly into the ice. Ice was placed out three times daily in two to three barrels for approximately 1-3 hours at a time. When the barrels were refilled, the old ice and meltwater were sometimes discarded, the barrels cleaned, and the plastic liners replaced. At other times, fresh ice was added on top of the ice and water remaining in the barrel. Staff and drill team camp attendees reported seeing grass, paper trash, and chewing gum at various times in the ice.
The Harveys sued UNT, pleading that UNT's negligence in serving ice in open garbage barrels without ice scoops, failing to wash lettuce and bean sprouts served to the campers, undercooking food, and failing to utilize sanitary procedures in the preparation of raw meat all proximately caused Catherine's injuries. In deposition excerpts presented to the trial court concerning UNT's plea to the jurisdiction, Dr. Wayne Shandera, the Harveys' expert witness, testified that in his opinion Catherine's E. coli poisoning was caused by the ice and indicated that in his opinion the likelihood that her poisoning came from another source was "less than 1 in 50,000." UNT's camp director, Dennis Fisher, said that UNT was responsible for providing the ice and for "making sure that the barrel had a scoop." The only people who provided ice to the drill team campers were UNT employees. Wanda Lowe, UNT's cafeteria manager, explained:
Q. In your experience as a dietician and someone who has been in charge of food safety, do you think it's a good idea to have ice in an ice barrel without a scoop?
A. No.
Q. Why not?
A. A scoop is safer.
Q. In what way?
A. Hands do not have to come in contact with ice.
Q. What's wrong with hands coming in contact with the ice?
A. You don't know where those hands have been, if you have clean hands.
Q. They can carry bacteria?
A. We have bacteria on our hands all the time.
Q. And that's why you think ice barrels should have scoops?
A. Yes.
We now apply the law to these facts.
The Texas Tort Claims Act waives the state's sovereign immunity from suit 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 ANN. § 101.021(2) (Vernon 1997). This waiver of sovereign immunity is a limited waiver, allowing suits to be brought against governmental agencies, like UNT, in only certain narrowly-defined circumstances. See Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001). Mere reference to the Act in a plaintiff's pleading does not establish the State's consent to be sued under the limited immunity waiver. Id. A plaintiff must plead facts sufficient to invoke a waiver of the Act. Brown, 80 S.W.3d at 555. We must look to the terms of the Act and then determine whether the liability theories pleaded, the facts pleaded, and the evidence presented in response to the plea to the jurisdiction demonstrate a claim within the Act's waiver provisions.
A governmental unit may waive immunity under the condition of tangible personal property portion of ...
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