University of North Texas v. Carla Harvey and Catherine Grace Harvey ( 2004 )

COURT OF APPEALS

SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-02-00320-CV

UNIVERSITY OF NORTH TEXAS                                              APPELLANT

V.

CARLA HARVEY AND CATHERINE                                           APPELLEES

GRACE HARVEY

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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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ORDER**

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        We have considered "Appellant's Motion for En Banc Reconsideration."

        It is the opinion of the court that said motion for rehearing en banc should be and is hereby denied and that the opinion and judgment of August 29, 2003, stand unchanged.

        The clerk of this court is directed to transmit a copy of the order to the attorneys of record.

        SIGNED January 29, 2004.

                                                          ________________________

                                                          SUE WALKER

                                                          JUSTICE

EN BANC

CAYCE, C.J. filed a dissenting opinion in which McCoy, J. joins.

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COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-02-320-CV

UNIVERSITY OF NORTH TEXAS                                              APPELLANT

V.

CARLA HARVEY AND CATHERINE                                           APPELLEES

GRACE HARVEY

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FROM THE 367^TH DISTRICT COURT OF DENTON COUNTY

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DISSENTING OPINION TO DENIAL OF

MOTION FOR EN BANC RECONSIDERATION

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Introduction

        Catherine Harvey alleges she became ill by eating ice contaminated with E. coli bacteria while attending drill team camp on the University of North Texas’s (UNT) campus. The ice was provided by UNT employees in “garbage cans” lined with plastic bags and allegedly became contaminated by a person who may have used her hand or cup to remove ice from the garbage cans. There is deposition testimony from UNT’s cafeteria manager that it would have been “safer” if UNT had provided a “scoop” for removing the ice from the garbage cans. Based on these facts, a panel of this court has held that a scoop is an “integral safety component” of a garbage can and that the lack of a scoop in the garbage can was a condition or use of property that proximately caused Catherine’s injuries.¹  In so holding, I believe the panel has stepped far beyond the “outer bounds” of what the Supreme Court of Texas and the overwhelming majority of courts of appeals have defined as a condition or use of property for finding a waiver of sovereign immunity under section 101.021(2) of the Tort Claims Act.²

        Contrary to the panel’s opinion, Catherine does not allege that, because UNT employees failed to provide scoops with garbage cans containing ice, the garbage cans were defective or lacked some integral safety feature. Nor does she allege that her injuries were proximately caused by UNT’s use of the garbage cans to store ice. Instead, Catherine asserts that her injuries were caused by the nonuse of a scoop which she alleges UNT employees should have provided with the garbage cans. Under both recent and longstanding decisions of the Supreme Court of Texas and this court, the Tort Claims Act does not waive UNT’s immunity from such a complaint.³  I am, therefore, compelled to respectfully dissent to the court’s denial of UNT’s motion for en banc reconsideration.

Catherine Did Not Allege That UNT Provided or Used Property That

Lacked an Integral Safety Component and That the Lack of an

Integral Safety Component Led to Her Injuries

        To establish a waiver of sovereign immunity based on a claim that an injury was caused by the condition or use of property lacking an integral safety component, the Supreme Court of Texas has held the plaintiff must allege “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.”⁴  Contrary to the panel opinion, however, Catherine did not allege or offer proof showing that a scoop is an integral safety component of a garbage can, an integral part of a garbage can, or a component of a garbage can.  Thus, even taking the facts alleged in Catherine’s pleadings as true and construing them in her favor as we should,⁵  the record contains no allegations or supporting proof that property used by UNT lacked an integral safety component and that the lack of the integral safety component caused her injuries.  Because Catherine makes no such claim in this case, UNT’s immunity is clearly not waived by section 101.021(2).⁶

Catherine’s Allegation That the Lack of a Scoop Caused Her Injuries

Is a Claim Based on Nonuse of Property Which She Alleges UNT’s

Employees Should Have Provided. The Tort Claims Act Does

Not Waive Sovereign Immunity From Such a Complaint.

        Catherine’s claim that the lack of a scoop caused her injuries is actually a claim based, not on the condition or use of property, but instead on the nonuse of property—a scoop—which she alleges UNT’s employees should have provided to remove ice from the garbage can. The Tort Claims Act does not provide for the waiver of sovereign immunity for injuries caused by nonuse of property.⁷  Nor does the Act provide for the waiver of sovereign immunity for injuries caused by the ordinary negligence of state employees.⁸  Section 101.021(2) of the Tort Claims Act expressly requires that for immunity to be waived, personal injury or death must be caused by the condition or “use” of tangible personal property.⁹ An injury such as Catherine’s, that is allegedly caused by a state employee’s allegedly negligent failure to use property, does not support a claim under the Act.¹⁰

Even Had Catherine Alleged That Her Injuries Were Proximately

Caused by the Condition or Use of Property Lacking an Integral

Safety Component, the Lack of a Scoop Cannot Be Said to

Have Caused Her Injuries

        Even if Catherine did allege that her injuries were caused by property lacking an integral safety feature (which she did not), a garbage can without a scoop cannot be said to have proximately caused Catherine’s injuries. “Property does not cause injury if it does no more than furnish the condition that makes the injury possible.”¹¹ The garbage can containing the contaminated ice did no more than furnish the condition that made it possible for Catherine to eat the ice. It did not cause the ice to become contaminated or cause Catherine to become ill from eating the ice, and Catherine does not allege that it did.

        The same can be said for the scoop that Catherine claims UNT should have provided with the garbage can. While there is testimony in this case that the use of a scoop may have made it “safer” to consume ice stored in a garbage can, the absence of a scoop did not cause Catherine to become ill. Catherine’s eating of contaminated ice from a garbage can may have led to her injuries, but the lack of a scoop in the garbage can in which the ice was stored is too attenuated from Catherine’s injuries to be said to have caused them.

Conclusion

        Because the panel opinion is unsupported by Catherine’s pleadings and represents such an extraordinary departure from prevailing Texas case law defining what does and does not constitute a condition or use of tangible personal property under the Tort Claims Act, I would grant UNT’s motion for en banc reconsideration.¹²

                                                                  JOHN CAYCE

                                                                  CHIEF JUSTICE

McCOY, J. joins.

DELIVERED: January 29, 2004

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NOTES

** Original Opinion dated 8/29/03 (Justice Walker); Order denying en banc motion dated 1/29/04, (Justice Walker) and Dissenting Opinion to Denial of Motion for En Banc Reconsideration dated 1/29/04 (Chief Justice Cayce).

NOTES TO DISSENTING OPINION TO DENIAL OF MOTION FOR EN BANC RECONSIDERATION

1. Univ. of N. Tex. v. Harvey, No. 02-02-00320-CV, 2003 WL 22026544, at *4 (Tex. App.—Fort Worth Aug. 29, 2003, no pet. h.); see Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon 1997).

2. Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1996) (explaining that case establishing waiver of sovereign immunity based on state providing property lacking an integral safety component “represent perhaps the outer bounds of what [the Supreme Court of Texas has] defined as use of tangible personal property”); see, e.g., San Antonio State Hosp. v. Cowan, 47 Tex. Sup. Ct. J. 221, 221-22, 2004 WL 74441, at *1-2 (Tex. Jan. 9, 2004) (walker and suspenders not unsafe merely because they were used by mental patient to commit suicide); Dallas County MHMR v. Bossley, 968 S.W.2d 339, 343 (Tex.) (unlocked door not lack of integral safety component that caused mental patient to escape and commit suicide), cert. denied, 525 U.S. 1017 (1998); Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169, 171 (Tex. 1989) (life preserver is integral part of swimming attire); Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 300 (Tex. 1976) (protective padding is integral safety component of football uniform); see also Archibeque v. N. Tex. State Hosp.-Wichita Falls Campus, 115 S.W.3d 154, 159-60 (Tex. App.—Fort Worth 2003, no pet.) (neither plastic bag and shoe laces used by mental patient to commit suicide nor failure to use flashlight was condition or use of property causing death of patient); Bonham v. Tex. Dep’t of Criminal Justice, 101 S.W.3d 153, 160 (Tex. App.—Austin 2003, no pet.) (lack of surveillance equipment not an integral safety component of men’s bathroom causing sexual assault); Tex. Dep’t of MHMR v. Lee, 38 S.W.3d 862, 867 (Tex. App.—Fort Worth 2001, pet. denied) (absence of lock on door not lack of integral safety component causing rape of patient).

3. See, e.g., San Antonio State Hosp., 47 Tex. Sup. Ct. J. at 221-22, 2004 WL 74441, at *1-2; Bossley, 968 S.W.2d at 343; Archibeque, 115 S.W.3d at 159-60; Lee, 38 S.W.3d at 867.

4. San Antonio State Hosp., 47 Tex. Sup. Ct. J. at 221-22, 2004 WL 74441, at *1-2 (“The precedential value of [Lowe and Robinson] is . . . 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.” (quoting Kerrville State Hosp., 923 S.W.2d at 585)); see Robinson, 780 S.W.2d at 171 (life preserver is integral part of swimming attire); Lowe, 540 S.W.2d at 300 (protective padding is integral component of football uniform).

5. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

6. See San Antonio State Hosp., 47 Tex. Sup. Ct. J. at 221-22, 2004 WL 74441, at *1-2.

7. San Antonio State Hosp., 47 Tex. Sup. Ct. J. at 221-22, 2004 WL 74441, at *1-2 (property that is alleged to have caused injury must be used by governmental unit to waive immunity); see Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994) (failure to provide medication was nonuse and did not constitute “use” of tangible property that caused death); Bonham, 101 S.W.3d at 159 (layout of facility that was context of injury was not used and thus did not bring claim within the Act’s waiver of sovereign immunity).

8. See Bossley, 968 S.W.2d at 343; Archibeque, 115 S.W.3d at 160; Lee, 38 S.W.3d at 868.

9. Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2).  The term “use” means “to put or bring into action or service; to employ for or apply to a given purpose.” Marroquin v. Life Mgmt. Ctr. for MH/MR Svcs., 927 S.W.2d 228, 230-31 (Tex. App.—El Paso 1996, writ dism’d w.o.j.) (quoting LeLeaux v. Hamshire-Fannett I.S.D., 835 S.W.2d 49, 51 (Tex. 1992)).

10. San Antonio State Hosp., 47 Tex. Sup. Ct. J. at 221-22, 2004 WL 74441, at *1-2; Bossley, 968 S.W.2d at 343; Archibeque, 115 S.W.3d at 159-60; Lee, 38 S.W.3d at 868.

11. Bossley, 968 S.W.2d at 343; Archibeque, 115 S.W.3d at 159; Lee, 38 S.W.3d at 867.

12. See Tex. R. App. P. 47.5.