Robert Bland v. the University of Texas Medical Branch ( 2004 )

Opinion issued December 2, 2004

In The

Court of Appeals

For The

First District of Texas

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  NO. 01-03-01104-CV

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ROBERT BLAND, MARY HARGRAVES, MICHAEL ROBERT BLAND, PATRICK BOUX BLAND, AND ROBERT DALLAS BLAND, Appellants

V.

THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, Appellee

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On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 02CV0955-A

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MEMORANDUM OPINION

          This is an accelerated appeal of the trial court’s granting of appellee’s plea to the jurisdiction based on governmental immunity. Appellee, The University of Texas Medical Branch at Galveston (“UTMB”), allegedly mishandled the willed body and remains of Catherine Boileau Bland (“decedent”). Appellants are the decedent’s husband and children. In three issues, appellants assert that the trial court’s dismissal was error because their allegations stated or properly alleged the following: (1) a cognizable tort claim arising from UTMB’s legal duty to properly handle human remains; (2) a “use of tangible personal property” under the Tort Claims Act based on UTMB’s use of the body of decedent; and (3) a breach of contract claim from which UTMB is not immune. We affirm.

BACKGROUND

          Catherine Bland (“decedent’) bequeathed her body to the Anatomical Board for assignment to UTMB or to UTMB directly. After her death, her husband, appellant Robert Bland, signed a donation agreement. The donation agreement recited that UTMB, after using decedent’s body for the advancement of medical science, would cremate decedent’s remains and return her ashes to her designated family member. In July of 2002, UTMB informed appellants by letter that it would be unable to return decedent’s ashes because the ashes had been commingled with the ashes of other donated bodies. Appellants sued UTMB, asserting causes action for negligence, negligent supervision, negligent entrustment, negligence per se, breach of contract, and constructive fraud. Appellants rely on an alleged “special relationship” with UTMB that would permit them to recover damages for mental anguish and emotional distress without asserting a physical injury.DISCUSSION

          This Court decided a case arising out of the same facts and circumstances in Noah v. University of Texas Medical Branch at Galveston, Nos. 01-03-00985 & 01-03-00986-CV, 2004 WL 1794642 (August 12, 2004, pet. denied). In Noah, we addressed all of the issues presented by appellant. See id. We hold that Noah is determinative of this case and overrule appellants’ three issues.

CONCLUSION

          We affirm the judgment of the trial court.

                                                             Sam Nuchia

                                                             Justice

Panel consists of Justices Nuchia, Higley, and Hanks.