Amador v. San Antonio State Hospital

993 S.W.2d 253, 1999 Tex. App. LEXIS 2515, 1999 WL 191602
CourtCourt of Appeals of Texas
DecidedApril 7, 1999
Docket04-98-00832-CV
StatusPublished
Cited by37 cases

This text of 993 S.W.2d 253 (Amador v. San Antonio State Hospital) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amador v. San Antonio State Hospital, 993 S.W.2d 253, 1999 Tex. App. LEXIS 2515, 1999 WL 191602 (Tex. Ct. App. 1999).

Opinions

OPINION

Opinion by:

PHIL HARDBERGER, Chief Justice

This is an appeal from an order granting a plea to the jurisdiction filed by San Antonio State Hospital (“SASH”). In their brief, the appellants, Cindy Amador and Carol Amador (“Amadors”), assert that the trial court erred in granting the plea to the jurisdiction because: (1) then-first amended original petition alleged that their injuries were caused by state employees’ negligent misuse of tangible personal property; and (2) the state employees’ misuse of tangible personal property was not an exercise of governmental discretion. Based on existing Texas Supreme Court precedent, we must affirm the trial court’s order.

Standard of Review

A plea to the jurisdiction contests the trial court’s authority to determine the subject matter of the cause of action. Texas Parks & Wildlife Dept. v. Garrett Place, Inc., 972 S.W.2d 140, 142 (Tex.App.-Dallas 1998, no pet.). The plaintiff bears the burden of alleging facts to affirmatively show that the trial court has subject matter jurisdiction. Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); Texas Parks & Wildlife Dept. v. Garrett Place, Inc., 972 S.W.2d at 142-43. The trial court looks solely to the allegations in the pleadings in reaching its decision, and we accept the allegations in the pleadings as true and construe them in favor of the pleader in conducting our review. Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d at 446; Texas Parks & Wildlife Dept. v. Garrett Place, Inc., 972 [255]*255S.W.2d at 143. Whether a trial court has subject matter jurisdiction is a question of law that we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. filed, 67 U.S.L.W. 3149 (Aug. 6, 1998); American Pawn & Jewelry, Inc. v. Kayal, 923 S.W.2d 670, 672 (Tex.App.-Corpus Christi 1996, writ denied).

Pleading Allegations

In their first amended original petition, the Amadors allege that Cindy was a patient in the care and custody of SASH. On September 30, 1996, Cindy was given a ground pass and allowed out on the hospital grounds without supervision. While out on the grounds, Cindy was assaulted and sexually assaulted by several other patients. Carol, Cindy’s mother, came upon Cindy during the assault and sexual assault and witnessed the occurrence within close proximity. The Amadors say that the injuries and damages they sustained were caused by the condition or use of tangible personal property, including, but not limited to: (1) the misuse of a ground pass (a/k/a a “day pass”);1 (2) the misuse of entrance and exit doors, i.e., unlocking the door to permit Cindy to exit unsupervised onto the hospital grounds; (3) providing a chapel without lockable doors and/or using a chapel without proper security; (4) providing hospital policy and/or procedure handbooks in a defective condition or misusing the handbooks; and (5) misusing hospital licensing standards and Texas Department of Health publications. The Amadors also alleged that SASH was hable for the spoilation of evidence2 and the negligent implementation of policy— specifically, the Amadors say that SASH improperly administered medication to its patients, improperly monitored its patients who were required to be under constant surveillance; improperly reacted to an assault and/or sexual assault situation, and improperly investigated the occurrence in question.

Sovereign Immunity

Under the doctrine of sovereign immunity, a governmental unit is not hable for the torts of its officers or agents in the absence of a constitutional or statutory provision creating such liability. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998), cert. denied, — U.S. -, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998). The Texas Tort Claims Act (“TTCA”) creates a limited waiver of sovereign immunity. See Tex. Civ. Prao. & Rem.Code Ann. § 101.021 (Vernon 1997). Under the TTCA, a governmental entity may be held hable for personal injury caused by a condition or use of tangible personal property. Tex. Crv. Prac. & Rem.Code Ann. § 101.021 (Vernon 1997). We must determine whether the Amadors’ injuries, as alleged in their pleadings, were caused by a condition or use of tangible personal property, such that SASH’s sovereign immunity was waived.

A. Tangible Personal Property

One of the requirements the Amadors were required to show in order to overcome SASH’s sovereign immunity is that their injuries were caused by a condition or use of “tangible personal property.” Tangible personal property refers to something that has a corporeal, concrete, and palpable existence. University of Texas Medical Branch at Galveston v. York, 871 S.W.2d 175, 178 (Tex.1994). Information is an abstract concept and is intangible. Id. at 179. The fact that the information is recorded does not render the information tangible property, and immunity is not waived for claims based on the misuse of information. Id.

[256]*256The following claims asserted by the Amadors did not relate to a condition or use of tangible personal property: (1) the misuse of the ground pass; (2) the provision of defective hospital poliey and/or procedure handbooks or the misuse of such handbooks; (8) the misuse of hospital licensing standards and Texas Department of Health publications; and (4) the negligent implementation of hospital policy. Each of these claims is based on SASH’s misuse of information, which is intangible. See id.; Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex.1994) (extending reasoning in York to medical records, patient files, and emergency room procedures manual); Tanner v. East Texas Mental Health, Inc., 889 S.W.2d 3, 4-5 (Tex.App.-Tyler 1994, no writ) (holding claim based on misuse of policy and procedure manual barred by immunity because information is intangible). The real substance of these complaints is the underlying allegation that SASH should have evaluated Cindy so that she was not given the ground pass that allowed her unsupervised access to the hospital grounds. Such a claim does not implicate a waiver of sovereign immunity under the TTCA. See Bossley, 968 S.W.2d at 343 (holding real substance of complaint was failure to properly restrain patient for which immunity is not waived); Laman v. Big Spring State Hosp., 970 S.W.2d 670, 672 (Tex.App.-Eastland 1998, pet. denied) (injury based on failure to properly supervise patient is not injury caused by condition or use of property); Castillo v.

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Bluebook (online)
993 S.W.2d 253, 1999 Tex. App. LEXIS 2515, 1999 WL 191602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amador-v-san-antonio-state-hospital-texapp-1999.