Texas Department of Mental Health & Mental Retardation v. Petty , 36 Tex. Sup. Ct. J. 421 ( 1992 )

CORNYN, Justice,

dissenting.

Today, a majority of this court agrees only on the judgment to be rendered in this case. The four justices joining the plurality opinion have articulated their reasons; the concurring justice agrees only that Opal Petty should prevail, but does not favor this court — or the lower courts and the bar, who rightly look to this court for an explication of Texas law — with a statement of the principles by which the legal issues raised here should be decided.¹ The result is that no opinion speaks for the court. The important issue upon which the court granted the State’s application for writ of error and upon which other cases² long pending in this court turn, remains unresolved; the judgment of the court of appeals is affirmed by default. Opal Petty has won her case, but the people of Texas have been disserved. Because I agree with neither the reasoning of the plurality opinion nor the inconclusive result reached by a majority of the court on an issue important to Texas jurisprudence, I dissent.

Under the common law doctrine of sovereign immunity, the state cannot be held liable for the torts of its employees in the absence of a constitutional or statutory exception. Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976); Texas Highway Dept. v. Weber, 147 Tex. 628, 219 S.W.2d 70 (1949). We adopted this doctrine early in our state’s history, holding that a state agency could not be sued in the courts of Texas without the consent of the state. See Hosner v. De Young, 1 Tex. 764, 769 (1847); see also Larry Schoenbrun, Sovereign Immunity, 44 Tex.L.Rev. 151, 151 (1965).

In 1967 the Texas House of Representatives passed a tort claims bill that waived sovereign immunity completely. Under that bill, the state could be sued as any other litigant in our courts.³ H.J. of Tex., 60th Leg., R.S. 1271 (1967) (H.B. 728, §§ 3, 4). However, the bill died in the Senate Committee on Jurisprudence on a tie vote. Joe R. Greenhill & Thomas v. Murto III, Governmental Immunity, 49 Tex.L.Rev. 462, 467 (1971). Subsequently, interim study committees of both houses were commissioned to reconsider the subject. See Senate Interim Committee to Study Governmental Immunity, Report to the 61st Legislature (1969) (in response to S.R. 733, 61st Leg., R.S. (1967)); House Interim Committee to Study Doctrine of Sovereign Immunity, Report of the House Interim Committee to Study Doctrine of Sovereign Immunity 1969 (in response to Tex.H.S.R. 396, 60th Leg., R.S. (1967)).

Initially, the 61st Texas Legislature rejected the work of the interim committees and passed a tort claims act that either abolished or restricted sovereign immunity in most circumstances. Robinson v. Central Tex. MHMR Center, 780 S.W.2d 169, 175 (Tex.1989) (Hecht, J. dissenting); Greenhill & Murto, supra, at 467. One commentator summarized the principle argument in favor of abolishing sovereign immunity in the following words:

Individuals should not be required to absorb the total loss when it should be and can properly be spread over the community as a whole_ The . ability to distribute the loss throughout the governmental unit involved is [much] greater than the power of business entities to do the same with respect to insured losses or losses caused to private citizens.

Joe R. Greenhill, Should Governmental Immunity for Torts be Re-examined, and, If So, by Whom? 31 Tex.Bar.J. 1036, 1068 (1968) (quoting comments of W. James Kronzer, Jr.). The House Committee concurred: “It is difficult to argue that a ‘unit of government,’ what with its taxing power, is not better able to distribute the loss than private entities or persons.” House Report at 10. However, Governor Preston Smith vetoed the bill, noting that while “the time has arrived when the doctrine of absolute governmental immunity must be reconsidered ... [the vetoed bill], however, is so broad and all-encompassing in scope as to impose upon the taxpayers of the State of Texas an onerous burden.” Veto Message of Gov. Smith, Tex.H.B. 117, H.J. OF Tex., 61st Leg., R.S. 1621 (1969).

The legislature promptly rewrote the bill to make it acceptable to the Governor. The bill was passed, and became law on May 22, 1969. Tort Claims Act, 61st Leg., R.S., ch. 292, 1969 Tex.Gen.Laws 874 (codified at Tex.Rev.Civ.Stat.Ann. art 6252-19); Greenhill & Murto, supra page 3, at 467-68.

The Tort Claims Act, thus forged by political compromise in the halls of the capítol, waived the doctrine of sovereign immunity only under limited circumstances. Tort Claims Act, 61st Leg., R.S., ch. 292, § 4, 1969 Tex.Gen.Laws 874, 875; Robinson, 780 S.W.2d at 175 (Hecht, J. dissenting). The Tort Claims Act specifically waived sovereign immunity for:

personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor driven equipment ... or death or personal injuries so caused from some condition or use of tangible property, real or personal....

Id. § 3.⁴

Since 1969, the Tort Claims Act has been amended three times: once to waive sovereign immunity for property damage proximately caused by a state officer or employee arising from the operation or use of a motor-driven vehicle or motor-driven equipment; ⁵ once to raise the liability limits;⁶ and once to codify the Tort Claims Act into the Civil Practices and Remedies Code.⁷ The limited waiver of sovereign immunity for “personal injury and death so caused by a condition or use of tangible personal or real property” has remained a constant. Tbx.Civ.Prac. & Rem.Code § 101.021(2).

Although this court has the power to abolish the common law doctrine of sovereign immunity, we have, prudently I think, invariably held that the decision to waive that immunity and impose the attendant financial responsibility on the taxpayers of Texas is a matter properly committed to the legislature. Hopkins v. Spring Indep. Sch. Dist., 736 S.W.2d 617, 619 (Tex.1987); Barr v. Bernhard, 562 S.W.2d 844, 846 (Tex.1978); Lowe, 540 S.W.2d at 298; see also Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 593 (Tex.App.—Austin 1991, writ denied) (per curiam, before Powers, Gammage, and Jones, JJ.). We have also written that “[f]or the Legislature to waive the State’s sovereign immunity, it must do so by clear and unambiguous language.” Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980). Unfortunately, the Tort Claims Act does not establish clear lines between immunized and nonimmun-ized conduct. As we have repeatedly and with some exasperation noted, it is also ambiguous. Robinson, 780 S.W.2d at 171; Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex.1983); Lowe, 540 S.W.2d at 303 (Greenhill, C.J., concurring). But the legislature’s general intention to maintain the state’s immunity for most activities, including those at issue here, is reasonably clear, and this court is not at liberty to ignore the Tort Claims Act simply because it is ambiguous.

Since the passage of the Tort Claims Act, we have considered the scope of the statutory waiver of governmental immunity for the use of tangible personal property on four previous occasions. See McGuire v. Overton Memorial Hosp., 514 S.W.2d 79 (Tex.Civ.App.—Tyler 1974), writ ref'd n.r.e. per curiam, 518 S.W.2d 528 (Tex.1975); Lowe v. Texas Tech Univ., 540 S.W.2d 297 (Tex.1976); Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30 (Tex.1983); and Robinson v. Central Tex. MHMR Center, 780 S.W.2d 169 (Tex.1989).

The plurality, as did the court of appeals below, relies almost exclusively on Salcedo v. El Paso Hospital District to support its interpretation of the Tort Claims Act that tangible property need not itself be a proximate cause of injury, but only be involved or included in any negligent act or omission found to be a cause of damages. In Salcedo, the court determined that the plaintiff had stated a cause of action under the Tort Claims Act when a government physician allegedly misread an electrocardiogram graph. Relying heavily on legislative silence, which the court interpreted as acquiescence, the court held that “an allegation of defective or inadequate tangible property is not necessary to state a cause of action ... if ‘some use’ of the property, rather than ‘some condition’ of the property is alleged to be a contributing factor to the injury.”⁸ I agree that there is no principled distinction between Ms. Petty’s treatment records and the graph in Salce-do, but as in the case of all medical records, the purpose of an electrocardiogram graph is to convey information to a physician, who then uses professional judgment to make treatment decisions. In both cases, the physical property, the record or writing, does not itself cause the injury, but may be evidence of a failure to meet a standard of professional care. The plurality would sanction an identification of virtually any physical object, no matter how remotely related to the cause of harm, to bring such a claim within the waiver. While apparently motivated by the understandable concern that no one injured by the state’s negligence go uncompensated, this would result in the exception swallowing the rule whole.

In Salcedo I believe we incorrectly blurred any distinction between tangible property that is itself the instrument of harm and property such as writings or records, which are part of a setting in which harm occurs and which merely memorialize information and ideas.⁹ We also erroneously eliminated the use of tangible property from the analysis of proximate cause, and by so doing left the state open to suit for virtually any activity. What Chief Justice Greenhill predicted in his concurring opinion in Lowe would become the law under the plurality’s rationale:

This construction would amount to a general waiver in virtually all tort cases. That is not necessarily bad, but I do not think this is what the Legislature intended. It is difficult to imagine a tort case which does not involve the use or nonuse, of some item of real or personal property; and to me, if there is a waiver in all cases where some item of personal property is either used or not used, there is virtually an unrestricted waiver of immunity.

540 S.W.2d at 301-302.

At least the court of appeals in this case, unlike the plurality, was forthcoming in acknowledging the difficulties raised by application of the Tort Claims Act.¹⁰ The difficulties are highlighted in part by the patently inconsistent results reached by other courts on this issue. For example, one court has held that a protective order is not tangible personal property because it merely recorded the court’s decision. Robinson v. City of San Antonio, 727 S.W.2d at 43. Another court, attempting to reconcile Robinson with Salcedo, wrote that a “written record may be tangible when it records a tangible situation, as in Salcedo, or intangible when it records an intangible idea, as in Robinson.” Montoya, 760 S.W.2d at 364; see also Birdo v. Williams, 1992 WL 347121 (Tex.App.—Houston [1st Dist.] 1992, no writ) (stating that an incorrect notation in a report that “ ‘no injuries were noted’ ” is not use of tangible property, even though “failure to record an essential entry” into a medical chart is use of tangible property). While other courts have been candid in their struggle to draw the subtle distinction between the use and nonuse of allegedly tangible property, the plurality fails to discuss, distinguish, or even mention the many conflicting cases under the Tort Claims Act which are left unresolved by the manner in which the court decides this case.¹¹

There are few matters more deeply troubling to a judge of a court of last resort than how to contend with precedent she believes to have been incorrectly decided. On the one hand, the law must have stability and predictability so that people may order their conduct and affairs with some rationality. On the other hand, the judge must consider the harm of compounding error by reflexively applying a clearly erroneous decision, particularly one which interprets a legislative enactment so far-reaching as the Texas Tort Claims Act. The Salcedo decision is less than a decade old, was decided by a unanimous court, and has not been legislatively modified. Yet it has spawned a surfeit of conflicting decisions in the courts of appeals, has left the state of the law in doubt, and has undermined the legislature’s policy of limiting the state’s liability for at least some negligent conduct. And because today’s opinion is only that of a plurality, none of these issues are settled. No court, no advocate, and no litigant can justly claim the plurality opinion as precedent for any other case. While I can respect honest disagreement over difficult legal questions, our failure to decide the issue presented is a disservice to similarly situated litigants, an egregious waste of taxpayers’ money, and a squandering of judicial resources.

I would reverse the judgment of the court of appeals.

PHILLIPS, C.J., and GONZALEZ and HECHT, JJ., join in this dissent.

1 .

A coherent majority rationale is particularly important in the American legal system, which has traditionally placed special emphasis on the reasoning underlying a particular decision to determine its precedential value. A statement of the Court’s reasoning helps to shape the conduct and decisions of the bench, bar, and the general public.... Moreover, articulation of the legal principles underlying a particular decision, and adherence to those principles in subsequent cases, serves as a check on judicial bias and arbitrariness. Our system’s emphasis on reasoning suggests that the objectives of the precedential system— certainty, reliance, equality, and efficiency— are ultimately best served not by blind adherence to particular judgments deemed to be “controlling,” but by the orderly development of well-reasoned legal principles that build logically upon each other and can survive testing over time and in a variety of situations.

Linda Novak, Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Co-lum.L.Rev. 756, 757-8 (1987) (footnotes omitted).

2 . See e.g., University of Tex. Medical Branch v. York, 808 S.W.2d 106 (Tex.App. — Houston [1st Dist.] 1991) (application for writ of error filed June 25, 1991); Eakle v. Texas Dept, of Human Servs., 815 S.W.2d 869 (Tex.App. — Austin 1991) (application for writ of error filed November 14, 1991).

3 . Previous proposals for a tort claims act were introduced, without success, in 1953, 1957, 1959, 1961. Senate Interim Committee to Study Governmental Immunity, Report to the 61st Legislature 6 (1969).

4 . The Tort Claims Act excluded property damage apparently because of the legislature’s concern for the financial burden of insurance premiums that would be required to cover such damages. House Report at 13-14; Greenhill & Murto, supra page 3, at 468-69.

5 . Act of April 11, 1973, 63rd Leg., R.S., ch. 50, 1973 Tex.Gen.Laws 77.

6 . Act of May 28, 1983, 68th Leg., R.S., ch. 530, 1983 Tex.Gen.Laws 3084. This act raised the liability of the state government "to $250,000 per person and $500,000 for any single occurrence for bodily injury or death and to $100,000 for any single occurrence for injury to or destruction of property.” Id. at § 1.

7 . Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex.Gen.Laws 3242, 3302. This act inexplicably changed the conjunction between the motor-driven vehicle portion of the statute and the tangible real and personal property portion of the statute from an “or" to an "and." One court has properly construed the "and” to mean “or.” Bryant v. Metropolitan Transit Auth., 722 S.W.2d 738, 740 (Tex.App.—Houston [14th Dist.] 1986, no writ).

8 . But see, Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex.1983) ("[A] legislature legislates by legislating, not by doing nothing, not by keeping silent." (quoting Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118, 121-22 (1960))).

9 . Notwithstanding Salcedo, the majority of our courts of appeals have held that writings are not tangible personal property under the Tort Claims Act. See e.g. Jefferson County v. Sterk, 830 S.W.2d 260, 262 (Tex.App.—Beaumont 1992, writ denied) (capias not tangible property); Eakle, 815 S.W.2d at 873 (papers memorializing discretionary actions do not waive immunity); Montoya v. John Peter Smith Hosp., 760 S.W.2d 361, 364 (Tex.App.—Fort Worth 1988, writ denied) (blank triage slip not tangible property); Russell v. Texas Dept. of Human Resources, 746 S.W.2d 510, 513 (Tex.App.—Texarkana 1988, writ denied) (use of child abuse report forms not use of tangible property); Robinson v. City of San Antonio, 727 S.W.2d 40, 43 (Tex.App.— San Antonio 1987, writ ref’d n.r.e.) (written agreement filed with court not tangible property): Wyse v. Department of Pub. Safety, 733 S.W.2d 224, 228 (Tex.App.—Waco 1986, writ ref’d n.r.e.) (no waiver of immunity for use of polygraph machine); Wilkins v. State, 716 S.W.2d 96, 98 (Tex.App.—Waco 1986, writ ref'd n.r.e.) (issuance of paper evidencing permission for trailer to follow a particular route not use of tangible property); but cf. York, 808 S.W.2d at 108-110 (failure to keep adequate documentation actionable under Tort Claims Act); City of Houston v. Arney, 680 S.W.2d 867, 874 (Tex.App.—Houston [1st Dist.] 1984, no writ) (failure to keep documentation actionable under Tort Claims Act).

10 ."We are aware that the cryptic language of § 101.021 has resulted in conflicting opinions in the courts of appeal regarding what constitutes tangible property....” 817 S.W.2d 707, 713 n. 4 (Tex.App.—Austin 1991).

11 . Among those cases which the plurality should address and distinguish are: Mitcham v. University of Tex. Medical Branch, 818 S.W.2d 523, 525 (Tex.App.—Houston [14th Dist.] 1991, writ denied) (physician’s failure to advise patient of danger of using arteriogram needle not waiver of sovereign immunity); Eakle, 815 S.W.2d at 873; Harris v. Galveston County, 799 S.W.2d 766, 768 (Tex.App.—Houston [14th Dist.] 1990, no writ) (no waiver when no allegation property was defective or inadequate); Weeks v. Harris County Hosp. Dist., 785 S.W.2d 169, 171 (Tex.App.—Houston [14th Dist.] 1990, writ denied) (failure to restrain suicide victim was not a use or misuse of personal property; sovereign immunity waived if personal property “defectively incomplete for [its] intended use”); Montoya, 760 S.W.2d at 364; Russell, 746 S.W.2d at 513; Wyse, 733 S.W.2d at 228; Robinson, 727 S.W.2d at 43; Wilkins, 716 S.W.2d at 98; Christilles v. Southwest Tex. State Univ., 639 S.W.2d 38, 41 (Tex.App.—Austin 1982, writ ref'd n.r.e.) (sovereign immunity waived when property is defective or inappropriate for intended use); Velasquez v. Jamar, 584 S.W.2d 729, 732 (Tex.Civ.App.—Tyler 1979, no writ) (to invoke waiver tangible property must either be deficient or inappropriate for the purpose for which it was to be used; negligent conduct alone is not sufficient); Brantley v. City of Dallas, 545 S.W.2d 284, 286 (Tex.Civ.App.—Amarillo 1976, writ ref’d n.r.e.) (alleged negligent failure of emergency technicians to take plaintiff to hospital after use of sphygmomanometer and stethoscope not waiver).