Bobby Ray Harris v. Texas Department of Criminal Justice - Institutional Division--Appeal from 349th District Court of Houston County

NO. 12-03-00363-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BOBBY RAY HARRIS, APPEAL FROM THE 349TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

T.D.C.J. I.D.,

APPELLEE HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

Bobby Ray Harris ( Harris ), an inmate in the Texas Department of Criminal Justice - Institutional Division ( TDCJ ), proceeding pro se, appeals the trial court s order granting TDCJ s plea to the jurisdiction. Harris raises two issues on appeal. We affirm.

Background

Harris is an inmate at TDCJ. Harris sued TDCJ for negligence after his finger was severed by a steam press he was operating. In his petition, Harris alleged that the machine caused his injury because it was defective in that it lacked integral safety features. TDCJ filed a plea to the jurisdiction contending that Harris s claim was barred by sovereign immunity. Harris responded arguing that TDCJ had waived sovereign immunity. The trial court granted TDCJ s plea to the jurisdiction, and this appeal followed.

Sovereign Immunity

Immunity from suit bars an action against the State unless the State expressly consents to the suit. See Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Absent the State's consent to suit, a trial court lacks subject matter jurisdiction. Id. The absence of subject matter jurisdiction may be raised by a plea to the jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Because subject matter jurisdiction presents a question of law, we review the trial court's decision to grant a plea to the jurisdiction de novo. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

In reviewing a plea to the jurisdiction, we review the pleadings and any evidence relevant to the jurisdictional issue. See Texas Dep t of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). The party suing the governmental entity must establish the State s consent, which may be alleged either by reference to a statute or to express legislative permission. See Jones, 8 S.W.3d at 638. The jurisdictional allegations contained in the plaintiff s petition are to be construed liberally in the plaintiff's favor. See Texas Ass n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

The Tort Claims Act (the "Act") provides a limited waiver of sovereign immunity in certain circumstances: A governmental unit is liable for:

A governmental unit is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) 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 (Vernon 1997). To sue the State for a tort, the pleadings must state a claim under the Act. See Jones, 8 S.W.3d at 639. Mere reference to the Act is not enough. See Miller, 51 S.W.3d at 587. We must look to the terms of the Act, considered together with the particular facts of the case, to determine if the defendant has waived immunity. Id. Use means to put or bring into action or service; to employ for or apply to a given purpose. Id. at 588. Claims involving the failure to use, or the non-use of property, are not within the waiver of sovereign immunity. Id. at 587-88.

Under Section 101.021(2), for immunity to be waived, personal injury or death must be proximately caused by the condition or use of tangible property. See Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998). Property does not cause injury if it does no more than furnish the condition that makes the injury possible. Id. The requirement of causation is more than mere involvement; otherwise the waiver of immunity would be virtually unlimited. Id. To establish that immunity has been waived, a plaintiff must allege a cause of action in which the tangible property is the instrumentality of the harm. Id. at 342; Baston v. City of Port Isabel, 49 S.W.3d 425, 429 n. 4 (Tex. App. Corpus Christi 2001, pet. denied).

We must recognize that the Legislature intended the waiver in the Act to be limited. See Bossley, 968 S.W.2d at 341. Arguments for applications of the Act that would essentially result in its waiver becoming absolute must therefore be rejected as contrary to the Act's fundamental purpose. Id. at 342. Further, while the trial court may now consider evidence on the issue of jurisdiction, the trial court is not to assess the merits of the underlying cause of action when determining the jurisdictional issue. See Blue, 34 S.W.3d at 554.

In his first and second issues, Harris argues that he has alleged facts that indicate that TDCJ waived sovereign immunity pursuant to Section 101.021(2). Specifically, Harris contends that the steam press in question was defective in that it lacked proper safety equipment. //

To state a claim involving the use of nondefective property, a plaintiff must allege the property was used or misused by a government employee. See Lacy v. Rusk State Hosp., 31 S.W.3d 625, 629 (Tex. App. Tyler 2000, no pet.). In absence of use by a government employee, a state agency is liable only when a state actor has provided property that lacks an integral safety component and the lack of this integral safety component leads to the plaintiff s injuries. Texas Dep t of Crim. Justice v. Diller, 127 S.W.3d 7, 12 (Tex. App. Tyler 2002, pet. denied) (emphasis added) (citing Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1996) and Lacy, 31 S.W.3d at 630.). Here, the record reflects that Harris, not a government employee, was using the press. Thus, to overcome TDCJ s claim of sovereign immunity, the pleadings must indicate that the steam press was defective because it lacked an integral safety component, and that the lack of such a component caused his injuries.

TDCJ provided evidence in support of its plea to the jurisdiction demonstrating that the press was inspected after the accident and determined not to be defective. Further still, the record reflects that the press in question had a safety feature composed of two buttons that an operator must depress to engage the press. The record reflects that these buttons were spaced so that the operator had to use both hands to depress them. Acknowledging the aforementioned feature, Harris argues that there was no safety device to prevent an injury such as he suffered were the press to engage on its own. Thus, based on our interpretation of his pleadings, Harris does not allege that the press lacked any safety component, but rather that the safety component present was not as effective as an alternate safety component might have been. //

The Texas Supreme Court addressed such an argument in Clark. In its discussion, the court stated as follows:

The decisions of this Court, however, have not always fallen neatly within this definition when applying the terms of the Act. The difficulty of interpreting the Act's waiver provisions has led this Court on several occasions to request guidance from the Legislature in interpreting these provisions. See, e.g., Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex. 1983); Lowe v. Texas Tech Univ., 540 S.W.2d 297, 303 (Tex. 1976) (Greenhill, C.J., concurring). The Legislature, however, has remained silent on this issue. As a result, our attempts to construe the Act's waiver provisions have resulted in a "long and arduous history" of cases. University of Texas Medical Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994). Two of these cases, in particular, illustrate the difficulty of interpreting these provisions.

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 plaintiff's 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.

The facts of the present case, however, are distinguishable from Lowe and Robinson. The Clarks have not alleged that KSH failed to provide Ligon with property lacking an integral safety component. ...To the contrary, the Clarks argue that the treatment prescribed to Ligon was not as effective as an alternative method of treatment would have been. For Lowe to apply to the Clarks' claims, we must assume that the university would have waived its immunity even if it had provided Lowe with a knee brace as long as Lowe could show that another type of knee brace would have better protected him. Likewise, for Robinson to apply, we must assume that MHMR would have waived its sovereign immunity even if it had provided Robinson a life preserver if Robinson could show that MHMR should have provided him with a better one. Thus, the facts of this case are different than those in Lowe and Robinson.

Clark, 923 S.W.2d at 584-85.

The issues raised in the instant case bear great similarity to those raised in Clark. In light of the terms of the Act and the holding in Clark, considered together with the particular facts of the case at hand, construed liberally in Harris s favor, we conclude that TDCJ has not waived sovereign immunity. We hold that the trial court properly granted TDCJ s plea to the jurisdiction. Harris s first and second issues are overruled.

Conclusion

Having overruled Harris s first and second issues, we affirm the trial court s order judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered May 28, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)