Delaney v. University of Houston

835 S.W.2d 56, 1992 WL 86349

• Court: Texas Supreme Court
• Decided: July 1, 1992
• Docket: D-0138
• Status: Published

Opinions

OPINION

HECHT, Justice.

Andrea Marie Delaney was raped by an armed intruder in her campus dormitory room at the University of Houston. In this action she claims damages for her injuries from the University, alleging that it breached its contract with her, breached express and implied warranties to her, was negligent, and violated the Texas Deceptive Trade Practices — Consumer Protection Act [“DTPA”], TexJBus. & Com.Code §§ 17.41-.63. The district court granted summary judgment for the University on the ground that all Delaney’s causes of action are barred by governmental immunity because they arose out of an intentional tort. A divided court of appeals affirmed. 792 S.W.2d 733. We reverse.

The University offered no summary judgment evidence. We take the following factual assertions from the only relevant summary judgment evidence before us, Delaney’s affidavit. We consider her assertions to be true, of course, only for the purpose of reviewing the summary judgment against her.

Delaney was recruited by the University to play volleyball on a scholarship that covered her tuition, meals and housing. When she and her family expressed concern about the level of crime in the area where University housing was located, the University assured Delaney that it would provide her a safe place of residence. Relying on that assurance, Delaney enrolled at the University and signed a contract for campus housing.

During her second semester, Delaney noticed that the lock on an outside door of her dormitory was broken, and that the door was often left propped open to allow entry into the building. Fearing that unauthorized persons could easily gain access to the building through the door, Delaney and other dormitory residents repeatedly complained to the University, but to no avail; the University did not repair the lock. One night, just as Delaney had feared, an intruder entered the dormitory through the broken door, and finding Delaney in her room, he, raped her at gunpoint in front of her boyfriend. The rapist was eventually apprehended, charged, convicted, and imprisoned.¹

Delaney alleges that the University is liable for her damages because it failed to provide her a secure residence, and more specifically, because it failed to repair the broken dormitory door lock. The University moved for summary judgment, contending that as a State agency all its actions are governmental, not proprietary, and that it is immune to all Delaney’s claims of liability, whether based upon contract, tort or statute, except as that immunity is waived by the Texas Tort Claims Act, Tex. Civ.PRAC. & Rem.Code §§ 101.001-.063. In its motion, the University argued that the Act does not waive immunity for claims of breach of contract, breach of warranties, and DTPA violations. The motion did not address whether the Act waives immunity as to Delaney’s negligence claims, see id. at §§ 101.021-022, arguing instead that they fell within exceptions to the waiver of immunity for claims arising from the method of providing police protection, id. at § 101.-055(3), claims based on actions involving discretion, id. at § 101.056(2), and claims arising out of intentional torts, id. at § 101.057(2). The district court granted summary judgment, but not on the University’s motion in its entirety. Its order recited the basis for its ruling as follows:

the Court ... hereby GRANTS the University’s motion on the basis of the Court’s conclusion that all of plaintiff Andrea Marie Delaney’s claims, including her claims against the University for breach of contract and for tort damages as a result of the University’s proprietary activities in running a dormitory, are all barred as a matter of law by Section 101.057(2) of the Texas Tort Claims Act, Section 101.001 et seq. of the Texas Civil Practice and Remedies Code which states that the Texas Tort Claims Act does not apply to a claim “arising out of assault, battery, false imprisonment or any other intentional tort....”

The court of appeals affirmed the district court’s judgment on this same basis although, as we shall see, it addressed other arguments raised by the University. We limit our consideration to the grounds upon which summary judgment was granted and affirmed.

The lower courts appear to have been persuaded by the University’s argument that if a person is intentionally injured, any cause of action asserted against a governmental entity to recover damages for those injuries is barred by immunity because of section 101.057(2) of the Tort Claims Act. This argument misconstrues section 101.-057(2) to be a prohibition of certain actions against the government. It is not. Rather, it is an exception to the limited waiver of immunity brought about by the Act. In some respects, the effect of the exception is prohibitory. Thus, if a claim is barred by immunity, but immunity is waived under sections 101.021-.022 of the Act, action is still prohibited if the claim falls within the section 101.057(2) exception. If, however, a claim is not barred by immunity, neither the waiver of immunity by the Act, nor the exceptions to that waiver, are relevant.

Delaney makes two arguments why her claims — at least her contract, warranty and DTPA claims — are not barred by immunity, wholly apart from the Tort Claims Act. One is that the University contracted to provide her safe housing and by entering into such a contract, waived immunity from liability for its breach. The University, Delaney asserts, is just as obliged to honor its contractual obligations as she is. Her other argument is that the University’s actions of which she complains were proprietary, not governmental, and therefore not protected by immunity. When the University acts as a private rather than public entity, Delaney contends, it must be liable as a private entity. The University challenges both these arguments. It contends that its actions, like the State’s, are always governmental and never proprietary, and that it is immune from liability for all breaches of contract, breaches of warranties and DTPA violations.

We do not address these contentions in this case. The factual record before us does not supply a sufficient predicate for either of Delaney’s arguments. The only evidence that the University ever contracted with her, or made representations or warranties to her, or acted in some proprietary way, is her own affidavit, which does not establish any of these facts with certitude. The legal arguments she makes are sufficiently difficult that it would be unwise to attempt to resolve them without a firmer factual footing. More importantly, the district court did not base summary judgment on these arguments, and we are therefore not inclined to consider them in reviewing the correctness of its ruling. The court of appeals did suggest that Delaney’s arguments are without merit, but its discussion of these issues is not material to its holding. The court of appeals affirmed the judgment of the district court on the ground on which it was granted, that is, that all Delaney’s actions are barred by immunity because they arise out of an intentional tort, rape. While we recognize that the Tort Claims Act does not apply to Delaney’s contract and warranty claims, we limit our review to the holding of the court of appeals and express no view of the other matters discussed in its opinion.

Accordingly, we assume, as the holdings of the courts below require, that Delaney’s causes of action against the University are all barred by governmental immunity, but that immunity is waived by the Tort Claims Act unless her claims fall within the exception to waiver in section 101.-057(2). That exception, as already noted, does not extend the Act’s waiver of immunity to claims “arising out of assault, battery, false imprisonment, or any other intentional tort”. The University argues, and the court of appeals held, that however Delaney characterizes her claims, whether as contractual, tort or statutory, they arise out of her rape and therefore fall within section 101.057(2). We believe that this construction of section 101.057(2) is too expansive.

Today in a companion case, LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49 (Tex.1992), we construe the language in section 101.021 which waives governmental immunity for liability in certain circumstances if the liability “arises from the operation or use of a motor-driven vehicle or motor-driven equipment.” In that context we hold:

The phrase, “arises from”, requires a nexus between the injury negligently caused by a governmental employee and the operation or use of a motor-driven vehicle or piece of equipment. While the statute does not specify whose operation or use is necessary, the employee’s, the person who suffers injury, or some third party, we think the more plausible reading is that the required operation or use is that of the employee.

Id. at 54. We here adopt a consistent construction of 101.057(2). We think that “arising out of” in that section, like “arises from” in section 101.021, requires a certain nexus for the provision to apply. In section 101.057(2), that nexus is between the claim and an intentional tort. In essence, section 101.057(2) excludes from the Act’s waiver of immunity claims for intentional torts. That section, like section 101.021, does not specify whose actions are referred to; that is, section 101.057(2) does not state whether the tortfeasor must be the governmental employee or could be a third party. As with section 101.021, we think that the more plausible reading of the provision is that the tortfeasor must be the governmental employee whose conduct is the subject of complaint. We are persuaded of this construction for two reasons.

One is that the United States Supreme Court has adopted this same view of similar language in the Federal Tort Claims Act, which excludes from the waiver of federal governmental immunity “[a]ny claim arising out of assault, battery, false imprisonment,” or certain other conduct. 28 U.S.C. § 2680(h). In Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988), plaintiffs sued the United States for damages they suffered when an intoxicated off-duty serviceman fired several rifle shots into their car. They alleged that government employees were negligent in finding the serviceman intoxicated and in possession of a rifle, and nevertheless allowing him to wander off without attempting to stop him or to summon other authorities to assist in doing so. The Court held that plaintiffs’ claim was not one “arising out of” an assault or battery within the meaning of the federal statute because it arose instead out of the government’s alleged negligence in allowing the incident to occur. Id. at 401-403, 108 S.Ct. at 2455-2456. The Court rejected the argument that “arising out of” included any claim, regardless of its nature, for injuries caused by someone’s intentional tort. The Court reasoned: Id. at 398, 108 S.Ct. at 2454. Although the Court added that the intentional tort exception could not be circumvented merely by alleging that the government was negligent in supervising the employee-tort-feasor, the claim in that case went beyond such allegations.²

The words “any claim arising out of” an assault or battery are unquestionably broad enough to bar all claims based entirely on an assault or battery. The import of these words is less clear, however, when they are applied to a claim arising out of two tortious acts, one of which is an assault or battery and the other of which is a mere act of negligence.

The other reason we reach the conclusion we do is because it is more consistent with the legal principle that intentional conduct intervening between a negligent act and the result does not always vitiate liability for the negligence. In Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 550 (Tex.1985), we quoted with approval the rule stated in the Restatement (Second) of Toets § 448 (1965):

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

To read section 101.057(2) so broadly as to except from the waiver of immunity any claim, irrespective of its nature, for injuries resulting from an intentional tort, is to ignore a distinction which the law recognizes when negligent and intentional acts both contribute to the occasion of injury. The better view, we believe, is a construction of section 101.057(2) which accommodates this distinction.

The court of appeals rejected the narrower construction we give section 101.057(2) in reliance upon Townsend v. Memorial Medical Center, 529 S.W.2d 264 (Tex.Civ. App. — Corpus Christi 1975, writ ref’d n.r.e.), and Trevathan v. State, 740 S.W.2d 500 (Tex.App. — Houston [1st Dist.] 1987, writ denied). Both are distinguishable from the present case. Trevathan did not apply section 101.057(2) and is therefore inapposite. In Townsend, the court held that a petition by a patient claiming damages for being raped by a hospital orderly in an elevator which he stopped between floors failed to state a cause of action because the claim fell within section 101.-057(2). Plaintiff there asserted that the government hospital breached its contract to provide her a hygienic and secure environment and was negligent because it “failed to maintain procedures adequate to protect the patient’s safety, permitted a male orderly to transfer a sedated female patient, and maintained an elevator in such a condition that it could be stopped and locked between floors without a warning device.” 529 S.W.2d at 265. The latter claim, that the condition of the elevator was faulty, resembles Delaney’s complaint about the door lock in this case, and the breach of contract claims in the two cases are similar. However, the rapist in Townsend was a governmental employee, and the claims in that case tended to focus on that employee’s conduct. In the present case, the rapist was not an employee of the University, and Delaney’s claims focus on the University’s conduct, not the rapist’s. Assuming Townsend was correctly decided, it is a much different case from this one.

Delaney’s claims are also distinct from the rape she suffered. The University's alleged failure to repair the dormitory door lock and alleged breach of contract to provide a secure residence for Delaney are readily distinguishable from the intruder’s conduct. Moreover, we do not view Delaney’s claims as circumventing the Tort Claims Act. Had an intruder gained entrance to Delaney’s dormitory through the broken door and injured her negligently rather than intentionally, the University could not invoke section 101.057(2) to avoid liability. We hold that it cannot do so in these circumstances either.

We reiterate that we do not determine whether Delaney’s negligence claims fall within the waiver of immunity contained in the Tort Claims Act, or whether her contract and statutory claims are not barred by immunity for other reasons, such as those argued by Delaney. We conclude only that the district court and court of appeals erred in rendering summary judgment against Delaney on the basis of section 101.057(2).

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The judgment of the court of appeals is reversed, and the case is remanded to the district court for further proceedings.

1 . By relying entirely upon Delaney’s affidavit, we are certainly not "faulting” her for it, as the concurring opinion by Justice Doggett asserts, post, at 62.

2 . We do not, contrary to what Justice Doggett’s concurrence says, rely upon the views of the dissenting judge in the lower court in Sheridan, although the Supreme Court did cite those views at some length and with apparent approval, and did reverse the judgment of the lower court.