Spindletop MHMR Center v. Beauchamp Ex Rel. Humphrey ( 2004 )

DON BURGESS, Justice,

dissenting.

I respectfully dissent. I believe this case is more like Lowe v. Texas Tech Univ., 540 S.W.2d 297 (Tex.1976), than any of the cases relied upon by the majority. I acknowledge the language in Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584-85 (Tex.1996):

In Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976), Lowe alleged that he injured his knee while playing football for the university. The injury allegedly occurred when a coach ordered him to remove his knee brace, worn because of a previous knee injury, and reenter a game without it. Id. at 302 (Greenhill, C.J., concurring). This Court concluded that the knee brace was as integral a part of Lowe’s uniform as his helmet or shoulder pads. Id. at 300. The Court therefore held that the State waived immunity by providing Lowe with a football uniform that was defective due to its lack of a knee brace. Id.

This rationale was also applied to invoke the Act’s waiver provisions in Robinson v. Central Texas MHMR Center, 780 S.W.2d 169, 171 (Tex.1989). In Robinson, MHMR took several patients, including Robinson, swimming. Id. at 169. The employees of MHMR knew that Robinson was epileptic and occasionally suffered seizures, causing him to lose consciousness. Id. MHMR and its employees, however, failed to provide Robinson with a life preserver, and he subsequently drowned. Id. This Court concluded that “[a] life preserver was just as much a part of Robinson’s swimming attire as the knee brace was part of the uniform in Lowe.” Id. at 171. The Court therefore held that MHMR waived its immunity. Id.

These cases represent perhaps the outer bounds of what we have defined as use of tangible personal property. We did not intend, in deciding these cases, to allow both use and non-use of property to result in waiver of immunity under the Act. Such a result would be tantamount to abolishing governmental immunity, contrary to the limited waiver the Legislature clearly intended. The precedential value of these cases is therefore limited to claims in which a plaintiff alleges that a state actor has provided property that lacks an integral safety component and that the lack of this integral component led to the plaintiffs injuries. For example, if a hospital provided a patient with a bed lacking bed rails and the lack of this protective equipment led to the patient’s injury, the Act’s waiver provisions would be implicated. Lowe, 540 S.W.2d at 300.

Here the employees of Spindletop MHMR Center knew Ms. Humphrey had developed an ulcer on her buttock. Placing her in the bed without the appropriate padding or other ulcer preventing devices was akin to putting the football player on the field without the brace, Lowe, or placing the epileptic swimmer in the pool without the life preserver, Robinson.

I do not believe the trial court abused its discretion in denying the plea to the jurisdiction. The trial court should be affirmed.