418 S.W.3d 675
Tex. App.2011Background
- Roach underwent surgery at Titus Regional Medical Center and was placed in a hospital bed in her post-surgical room.
- Roach allegedly was not attended or monitored as the bed’s safety rails were not raised, causing her to fall and suffer injuries.
- Roach sued Titus, asserting negligence and claiming immunity was waived under Tex. Civ. Prac. & Rem. Code § 101.021(2) by alleging a condition or use of tangible property.
- Titus moved to dismiss arguing governmental immunity; Roach argued the pleadings alleged waiver because the injury arose from the use of tangible property (the bed and rails).
- The trial court denied immunity on the rails issue; the court remanded the other issue for further proceedings; on appeal, the court affirmed the rails issue but remanded regarding the information-transmission issue.
- The court held that the bed and rails constitute use of tangible property, triggering waiver, while the information-notification issue remained a separate matter for the trial court to resolve.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the bed and rails’ use waived immunity | Roach asserts the bed with rails was used, triggering waiver. | Titus argues non-use of rails falls outside waiver. | Waiver found: use of the safe-rail bed constitutes use of tangible property. |
| Whether the information-notification aspect was waived | Roach alleged failure to notify family after surgery could be linked to waiver. | Non-use/other issues do not implicate tangible-property use. | Waiver not resolved; remanded for further proceedings on the information-notification issue. |
Key Cases Cited
- Overton Mem’l Hosp. v. McGuire, 518 S.W.2d 528 (Tex. 1975) (use of property when bed provided without rails waives immunity)
- Lowe v. Texas Tech Univ., 540 S.W.2d 297 (Tex. 1976) (uniforms and protective devices as tangible property components)
- Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169 (Tex. 1989) (life preserver as use of tangible property waiver)
- Kerrville State Hosp. v. Clark, 923 S.W.2d 582 (Tex. 1996) (non-use of otherwise available property may not waive immunity; outer bounds of use)
- Hampton v. Univ. of Texas, 6 S.W.3d 627 (Tex. App.—Houston [1st Dist.] 1999) (hospital bed rails case supporting use of property theory)
- Cowan (San Antonio State Hosp. v. Cowan), 128 S.W.3d 244 (Tex. 2004) (hospital provided property and lack of safety features implicated waiver)
- Kassen v. Hatley, 887 S.W.2d 4 (Tex. 1994) (non-use of property claim does not trigger waiver)
- Beavers (Texas State Tech Coll. v. Beavers), 218 S.W.3d 258 (Tex. App.—Texarkana 2007) (integral safety component analysis; inadequacy not same as non-use)
- York v. Univ. of Tex. Med. Branch at Galveston, 871 S.W.2d 175 (Tex. 1994) (touchstone on use vs. non-use in waiver analysis)