Ector County Hospital District d/b/a Medical Center Hospital v. Susan Swinney, Heir of the Estate of Marjorie Wilson--Appeal from 70th District Court of Ector County

Opinion filed May 3, 2007

In The

Eleventh Court of Appeals

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   No. 11-06-00124-CV

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   ECTOR COUNTY HOSPITAL DISTRICT D/B/A MEDICAL

CENTER HOSPITAL, Appellant

V.

SUSAN SWINNEY, HEIR OF THE ESTATE

OF MARJORIE WILSON, Appellee

On Appeal from the 70th District Court

Ector County, Texas

Trial Court Cause No. A-118,902

M E M O R A N D U M O P I N I O N

Susan Swinney, as an heir of the estate of Marjorie Wilson, brought this survival action based on negligence against Ector County Hospital District d/b/a Medical Center Hospital, a governmental unit.[1] Swinney seeks to recover damages relating to injuries that Wilson received in a fall at Medical Center Hospital. Medical Center Hospital filed a plea to the jurisdiction and traditional and no-evidence motions for summary judgment asserting that it was entitled to governmental immunity with respect to Swinney=s claims.[2] The trial court denied the plea to the jurisdiction and the motions for summary judgment. In this interlocutory appeal, Medical Center Hospital challenges the trial court=s order denying its plea to the jurisdiction and its traditional and no-evidence motions for summary judgment. The issue on appeal is whether Medical Center Hospital waived its governmental immunity under the Texas Tort Claims Act.[3] See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021(2) (Vernon 2005). Because the evidence before the trial court established Medical Center Hospital=s governmental immunity on Swinney=s claims, we reverse the trial court=s order and render judgment dismissing this cause for want of jurisdiction.

Background

On March 19, 2003, Marjorie Wilson fractured her left femur when she fell in one of the X-ray rooms at Medical Center Hospital. Wilson passed away on September 15, 2003. Wilson=s daughter, Swinney, brought this survival action against Medical Center Hospital. In her petition, Swinney alleged that Wilson=s March 19, 2003 fall occurred as a result of Medical Center Hospital=s negligence. Specifically, Swinney alleged that Heather Hale and Saul Leyva B two radiology technology students who were working in the radiology department B negligently allowed Wilson to fall while they were positioning her to take a chest X-ray. Swinney further alleged that Shari Speed, an employee in Medical Center Hospital=s radiology department, was negligent in failing to properly supervise Hale and Leyva. Based on the alleged negligent conduct of Speed, Hale, and Leyva, Swinney sought to impose liability against Medical Center Hospital under a respondeat superior theory.

Wilsonalleged that Medical Center Hospital waived its governmental immunity under the Tort Claims Act because Wilson=s injuries arose from the use or misuse of tangible personal property, including the radiology room, the X-ray machine, a roller gurney, and a wall bucky. Medical Center Hospital filed a plea to the jurisdiction and traditional and no-evidence motions for summary judgment asserting, among other things, that Wilson=s injury did not arise from the use or misuse of tangible personal property. Therefore, Medical Center Hospital asserted that there had been no waiver of its governmental immunity under the Tort Claims Act.

The trial court held a hearing on Medical Center Hospital=s plea to the jurisdiction and motions for summary judgment. Later, the trial court entered an order denying the plea to the jurisdiction and the motions for summary judgment. As permitted by Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(8) (Vernon Supp. 2006), Medical Center Hospital filed this interlocutory appeal from the trial court=s order.

Issue on Appeal

In its sole issue on appeal, Medical Center Hospital argues that there was no waiver of its governmental immunity based on the following independent reasons: (1) Wilson=s injuries were not caused by the use or misuse of tangible personal property and (2) Hale and Leyva were not employees of Medical Center Hospital when Wilson=s injury occurred. Therefore, Medical Center Hospital asserts that the trial court erred in denying its plea to the jurisdiction and its motions for summary judgment.

Standard of Review

Governmental immunity from suit defeats a trial court=s subject-matter jurisdiction. Tex.Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); Ector County v Breedlove, 168 S.W.3d 864, 865 (Tex. App. B Eastland 2004, no pet.). Therefore, governmental immunity is properly asserted in a plea to the jurisdiction. Miranda, 133 S.W.3d at 225-26; Tex. Dep=t of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999). Whether a court has subject-matter jurisdiction is a legal question that we review de novo. Miranda, 133 S.W.3d at 226; Breedlove, 168 S.W.3d at 865.

The Tort Claims Act provides a limited waiver of sovereign or governmental immunity, allowing suits to be brought against governmental units only in certain, narrowly defined circumstances. Tex. Dep=t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001); Breedlove, 168 S.W.3d at 865. A plaintiff must affirmatively demonstrate the court=s jurisdiction by alleging a valid waiver of immunity. Whitley, 104 S.W.3d at 542; Miller, 51 S.W.3d at 587. To determine if the plaintiff has met this burden, we look to the facts alleged by the plaintiff and any evidence relevant to the jurisdictional issue. Countyof Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Tex.Natural Res. Conservation Comm=n v. White, 46 S.W.3d 864, 868 (Tex. 2001); Breedlove, 168 S.W.3d at 865. We construe the pleadings in the plaintiff=s favor and look to the pleader=s intent. Brown, 80 S.W.3d at 555.

Governmental Immunity and the Tort Claims Act

Medical CenterHospital, a governmental unit, is immune from liability for Wilson=s injuries unless immunity is waived by the Tort Claims Act. DallasCounty Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998); City of La Porte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995). As it pertains to this case, the Tort Claims Act provides that a governmental unit is liable for personal injury so caused by a condition or use of tangible personal property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. Section 101.021; Bossley, 968 S.W.2d at 343; KerrvilleState Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996). The Texas Supreme Court defines Ause@ as Ato put or bring [the property] into action or service; to employ for or apply to a given purpose.@ San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004). The Texas Supreme Court has interpreted Section 101.021(2) to require that the governmental employee Ause@ the tangible personal property. Id.

The Evidence

Medical Center Hospital submitted excerpts from the depositions of Swinney, Hale, Leyva, and Speed in support of its plea to the jurisdiction and its traditional and no-evidence motions for summary judgment. Swinney submitted excerpts from the depositions of Speed, Hale, and Leyva and an excerpt from her deposition in response to Medical Center Hospital=s plea to the jurisdiction and motions for summary judgment. As required by the standard of review set forth above, we consider the evidence submitted by the parties to the extent it is relevant to the jurisdictional issue. Brown, 80 S.W.3d at 555; White, 46 S.W.3d at 868.

The evidence establishes that Wilson was a patient at Regency Hospital, a long-term facility. Regency Hospital and Medical Center Hospital were located in the same building. On March 19, 2003, Wilson=s physician ordered chest X-rays for Wilson. Wilson was transported from Regency Hospital to Medical Center Hospital=s radiology department on a rolling stretcher, also referred to as a gurney. At that time, Hale and Leyva, two Odessa College radiology technology students, were working in Medical Center Hospital=s radiology department. Wilson remained on the stretcher, and Hale wheeled the stretcher into X-ray Room No. 6. Leyva accompanied Hale and Wilson into the X-ray room.

The record shows that chest X-rays may be performed while a patient is standing up or, if a patient is unable to stand, a portable X-ray machine may be used to perform the X-ray while the patient is in bed or on a stretcher. Speed testified that, during a stand-up X-ray, the patients hang on to the X-ray equipment on each side. Hale and Leyva planned to take two chest X-rays of Wilson. Hale testified that she asked Wilson whether she was able to stand. Hale said Wilson responded that she was able to stand but that she could not stand for long. Hale testified that she then asked Wilson if she could stand for one X-ray, sit down and rest for a while, and then do a second X-ray. Hale said that Wilson said, AYes.@ Leyva testified that he and Hale made the decision to perform a stand-up X-ray of Wilson because Wilson said she was able to stand. Leyva said that he and Hale were following the doctor=s orders in performing the stand-up X-ray. He also said that they could have taken a mobile X-ray of Wilson at Regency Hospital with a portable X-ray machine had the doctor ordered a mobile X-ray.

Hale and Leyva positioned the stretcher next to the X-ray equipment (wall bucky) located on the wall. Hale and Leyva assisted Wilson off of the stretcher and also assisted Wilson in walking toward the wall bucky. Leyva was on Wilson=s left side, and Hale was on Wilson=s right side. After taking three or four steps toward the wall bucky with Hale and Leyva supporting her, Wilson stated, AI am going to blackout.@ Wilson collapsed and lost consciousness, and Leyva attempted to hold her up by locking his arms underneath her arms. At the same time, Leyva requested Hale to move the stretcher closer to Wilson and him. Hale and Leyva yelled for help. Leyva testified that Wilson became dead weight and that he could not lift her up onto the stretcher. Leyva said that, because of Wilson=s weight, he was unable to hold her up and that, therefore, he slowly lowered her to the ground.

Speed and two students, Juan Ramirez and Mark Blackmon, entered the room to assist Hale and Leyva with Wilson. Hale, Leyva, Speed, Ramirez, and Blackmon lifted Wilson off of the floor and put her onto the stretcher. Wilson regained consciousness and said, AOh, my leg.@ An X-ray of Wilson=s leg showed that it was fractured.

Analysis

Swinney contends that Wilson=s injuries were caused by Medical Center Hospital=s negligent use or misuse of the following tangible personal property: the radiology room, the X-ray machine, the roller gurney, and the wall bucky. Swinney asserts that Medical Center Hospital misused the wall bucky in attempting to perform a stand-up X-ray because the handles on the wall bucky were not used when Wilson was placed into position for the X-ray.

Merely asserting that some form of tangible personal property was involved is not sufficient to demonstrate a waiver of immunity. Bossley, 968 S.W.2d at 342-43. Rather, to establish a waiver of immunity, the use or misuse of the tangible personal property must have proximately caused the personal injury. Id. The evidence relevant to the jurisdictional issue in this cause establishes that Wilson=s injuries were not caused by the use or misuse of tangible personal property. The evidence shows that Wilson, with the assistance of Hale and Leyva, was walking toward the X-ray equipment that was located on the wall. Wilson lost consciousness as she approached the X-ray equipment. She had not reached the wall bucky and was not in position for an X-ray to be taken when she lost consciousness. The X-ray equipment was not in use when Wilson lost consciousness or when Leyva lowered her to the floor. Thus, Hale and Leyva were not using the X-ray equipment when Wilson was injured. Therefore, Wilson=s injuries were not caused by a use or misuse of tangible personal property.[4] Additionally, even assuming that Hale and Leyva were using the X-ray equipment at the time of the incident, there is no evidence that the use of the equipment caused Wilson=s loss of consciousness and resulting injuries.

Swinney asserts that Medical Center Hospital conducted a stand-up X-ray of Wilson even though it knew or should have known that Wilson was a high-fall risk. Swinney contends that Medical Center Hospital misused the radiology room by failing to use a portable or mobile X-ray machine to x-ray Wilson from a sitting or lying position on the gurney. However, claims involving the failure to use property or the non-use of property cannot support a waiver of immunity under the Tort Claims Act. Miller, 51 S.W.3d at 587; White, 46 S.W.3d at 869-70; Gainesville Mem=l Hosp. v. Tomlinson, 48 S.W.3d 511, 514 (Tex. App.CFort Worth 2001, pet. denied). Therefore, Swinney=s claims concerning Medical Center Hospital=s failure to use the gurney and a portable or mobile X-ray machine cannot establish a waiver of immunity under Section 101.021(2) of the Tort Claims Act.

Swinney relies on Huckabay v. Irving Hosp. Found., 802 S.W.2d 758 (Tex. App.C Dallas 1990, writ denied). In Huckabay, plaintiffs Roy and Lucille Huckabay sued the hospital, a governmental unit, for injuries that Roy had received at the hospital. Id. at 760. One of the issues before the Huckabay court was whether the plaintiffs= allegations demonstrated a waiver of immunity under Section 101.021(2) of the Tort Claims Act. Id. The plaintiffs alleged that Roy went to the hospital for a chest X-ray and that, as instructed, Roy placed himself up against the X-ray machine. The plaintiffs also alleged that an X-ray technician walked up to Roy and that the technician, instead of adjusting Roy to a preferable position to take the X-ray, Ashoved [Roy] up against the X-ray apparatus with such force that it separated [Roy=s] recently reattached sternum.@ Id. The Huckabay court held that the X-ray technician=s manipulation of Roy in positioning him against the screen for taking the X-ray was part of the use of the X-ray machine. Id. Therefore, the court stated that the plaintiffs= petition alleged a cause of action for the misuse of tangible personal property. Id.

This cause is distinguishable from Huckabay. In this cause, Hale and Leyva were not manipulating or positioning Wilson onto or against the X-ray equipment when she received her injuries. Rather, Wilson was injured and lost consciousness as she walked from the gurney toward the X-ray equipment on the wall. Hale and Leyva were not using the gurney or the X-ray equipment at the time of the incident. Thus, even if correctly decided, Huckabay does not support Swinney=s claim that Medical Center Hospital waived its governmental immunity in this cause.

Because Wilson=s injuries were not caused by the use or misuse of tangible personal property, there was no waiver of Medical Center Hospital=s governmental immunity. Therefore, the trial court erred in denying Medical Center Hospital=s plea to the jurisdiction and its motions for summary judgment. We sustain Medical Center Hospital=s issue. Based on our holding, we need not address Medical Center Hospital=s alternative contention that there was no waiver of its governmental immunity because Hale and Leyva were not employees of Medical Center Hospital when Wilson=s injury occurred. Tex. R. App. P. 47.1.

This Court=s Ruling

We reverse the trial court=s order denying Medical Center Hospital=s plea to the jurisdiction and motions for summary judgment, and we render judgment dismissing this cause with prejudice.

TERRY McCALL

JUSTICE

May 3, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Swinney also named Regency Hospital Company of Odessa, LLC, as a defendant in this cause. [2-3] Swinney settled her claims against Regency Hospital, and the trial court entered an order dismissing Swinney=s claims against Regency Hospital with prejudice.

[2]Medical Center Hospital asserted that there had been no waiver of sovereign immunity in its plea to the jurisdiction and motions for summary judgment. Sovereign immunity refers to the State=s immunity from suit and liability. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). It protects the State and various divisions of state government from liability. Id. Governmental immunity, on the other hand, protects political subdivisions of the State, including counties, cities, and school districts. Id.

[3]Tex. Civ. Prac. & Rem. Code Ann. ''101.001-.109 (Vernon 2005).

[4]Speed testified that Wilson fainted and her injury occurred after Hale and Leyva took a chest X-ray. The excerpts from the depositions of Hale and Leyva that are in the record do not indicate that Hale and Leyva took an X-ray before Wilson fainted or lost consciousness. Hale=s and Leyva=s testimony establishes that Wilson lost consciousness as she approached the X-ray equipment. Whether Wilson was approaching the X-ray equipment for the first time or the second time, the equipment was not being used when she was injured. Under either scenario, Wilson=s injuries were not caused by a use or misuse of the X-ray equipment.