the University of Texas System Operating as the University of Texas at El Paso v. Kenneth Palomino
498 S.W.3d 711
| Tex. App. | 2016Background
- Kenneth Palomino, a UTEP engineering student, injured his hand while using the right wheel of a double-ended pedestal grinder in a university machine shop; his hand was pulled into the wheel and crushed.
- Palomino was not instructed or supervised by his instructor at the time; a teaching assistant told him he could use the grinder.
- Palomino sued UTEP under the Texas Tort Claims Act, alleging UTEP negligently provided an "unguarded and unsafe" grinder lacking an integral safety component (protector guard and safety rest).
- Evidence showed the grinder had a protector guard and safety rest installed on the left (small-wheel) side but not on the right (large-wheel) side; experts testified this one-sided configuration is typical and the grinder was not missing integral safety components.
- UTEP filed a plea to the jurisdiction asserting governmental immunity; the trial court dismissed some claims but denied dismissal as to the integral-safety-component claim. The court of appeals reversed and dismissed all claims for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Tort Claims Act’s "use" waiver applies via the integral safety component doctrine | Palomino: UTEP provided grinder lacking required safety components on the side he used (no guard/rest), so immunity is waived | UTEP: The grinder had integral safety components (on left side); waiver requires an integral component be entirely lacking, not merely inadequate | Court: No waiver — safety components existed (albeit only on one side); claim alleges inadequacy, not absence, so immunity remains |
| Whether furnishing equipment plus instruction or direction converts furnishing into a "use" that waives immunity | Palomino: Supposed instruction/permission (TA said "go ahead") made UTEP’s provision a use | UTEP: No direct, mandatory control or supervision by employees; mere permission or instruction is insufficient | Court: No — no evidence of direct, mandatory control; Beavers distinguished; furnishing/mere permission does not waive immunity |
Key Cases Cited
- City of N. Richland Hills v. Friend, 370 S.W.3d 369 (Tex. 2012) (discusses limits and debate over the Tort Claims Act "use" waiver)
- Texas A&M Univ. v. Bishop, 156 S.W.3d 580 (Tex. 2005) (integral safety component waiver applies only when component is entirely lacking, not merely inadequate)
- Lowe v. Tex. Tech Univ., 540 S.W.2d 297 (Tex. 1976) (early integral-safety-component case: failure to provide knee brace waived immunity)
- Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169 (Tex. 1989) (early integral-safety-component case: failure to provide life preserver waived immunity)
- Kerrville State Hosp. v. Clark, 923 S.W.2d 582 (Tex. 1996) (Lowe and Robinson represent outer bounds; doctrine limited to complete absence of safety component)
- Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012) (explains that a governmental unit does not "use" property merely by providing it)
- Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583 (Tex. 2001) (injury must be contemporaneous with use; using the property must have actually caused the injury)
- Tex. State Tech. College v. Beavers, 218 S.W.3d 258 (Tex. App.—Texarkana 2007) (distinguished — court found waiver where equipment allegedly defective and students were instructed/directed in its use)