Tonya M. ARCHIBEQUE, Individually and as Heir of Janae Devries, Deceased, Appellant,
v.
NORTH TEXAS STATE HOSPITALWICHITA FALLS CAMPUS, an Agency of Defendant Texas Department of Mental Health And Mental Retardation, Appellee.
Court of Appeals of Texas, Fort Worth.
*156 Kondos & Kondos Law Offices, and Anjel K. Avant, Richardson, for Appellant.
John Cornyn, Attorney General of Texas, Howard G. Baldwin, Jr., First Asst. A.G., Jeffrey S. Boyd, Deputy A.G. for Litigation; Julie Caruthers Parsley, Solicitor General, Joseph D. Hughes, Asst. Solicitor General, and Anne L. Morgan, Asst. A.G., Austin, for Appellee.
Panel B: CAYCE, C.J.; GARDNER and WALKER, JJ.
OPINION
JOHN CAYCE, Chief Justice.
I. Introduction
Appellant Tonya M. Archibeque, Individually and as heir of Janae Devries, Deceased, appeals from the trial court's judgment granting appellee's plea to the jurisdiction and dismissing her wrongful death and survival action. In her sole issue on appeal, Archibeque contends appellee's sovereign immunity from suit has been waived under the Texas Tort Claims Act[1] because Devries's death was the result *157 of the use or misuse of tangible personal property. Because we conclude that appellee's immunity from suit has not been waived, we will affirm the trial court's judgment.
II. Background Information & Procedural History
Archibeque's mother, Janae Devries, was a patient at North Texas State Hospital, which is a part of the Texas Department of Mental Health and Mental Retardation.[2] While at the hospital, Devries allegedly committed suicide by covering her head with a trash bag and tying shoe laces around her neck. Thereafter, Archibeque filed a wrongful death and survival action,[3] seeking to recover damages from appellee arising from Devries's death. Appellee filed a plea to the jurisdiction, alleging that it was sovereignly immune from suit for tort liability because the legislature had not consented to the suit. The trial court granted the plea, and this appeal followed.
III. Standard of Review
A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of the action. Tex. Dep't of Transp. v. Jones,
IV. Sovereign Immunity From Suit
A. Use or Misuse of Property
Governmental entities such as appellee are immune from suit unless the legislature has expressly consented to the suit. Jones,
Archibeque contends that she pleaded sufficient facts to show that her claims fall within the Act's immunity waiver. She asserts that the Act waives appellee's immunity from suit as to her claims because her claims are based on appellee's negligence involving the use or misuse of tangible personal property. Specifically, Archibeque alleges that appellee was negligent in providing Devries, who had a history of suicidal tendencies, a plastic trash bag and shoe laces, which she used to commit suicide. Archibeque also alleges that appellee's employees negligently failed to use a flashlight to monitor Devries during sleeping hours and negligently failed to properly diagnose Devries's condition and mental status in her chart.
Section 101.021 of the Act provides that a governmental unit is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
TEX. CIV. PRAC. & REM.CODE ANN. § 101.021 (Vernon 1997).[4] Only section 101.021(2) is at issue in this case.
To state a claim under section 101.021(2), the plaintiff must allege that (1) property was used or misused by a governmental employee and (2) the use proximately caused personal injury or death. Bossley,
In this case, Archibeque asserts that appellee negligently used the trash bag and shoe laces because appellee furnished them to Devries, who had a history of suicidal tendencies, and failed to remove them from her room. Archibeque does not explain what appellee used the trash bag and shoe laces for, but presumably they were employed for their usual purposes: to collect trash and tie shoes. Archibeque does not contend that Devries's death was caused by either the collection of trash or the tying of her shoes; thus, Archibeque has not alleged that Devries's death was proximately caused by appellee's use or misuse of the trash bag and shoe laces. See Tex. Dep't of Criminal Justice v. Diller, ___ S.W.3d ___, ___, No. 12-02-00003-CV,
The mere presence of the trash bag and shoe laces in Devries's room did no more than furnish the condition that made her death possible; it did not kill Devries or cause her to engage in suicidal conduct. Although Devries's use of the trash bag and shoe laces were part of a tragic sequence of events that ended in her death, appellee's alleged use of these items was too attenuated from her death to be said to have caused it. See Bossley,
The cases on which Archibeque relies are not on point. They involve either the alleged misuse of medical equipment[6] or the provision of property that lacked an integral safety component,[7] and their precedential *160 value is limited to their particular circumstances.[8] Archibeque does not contend that appellee misused medical equipment or that the trash bag and shoe laces in question lacked an integral safety component.[9]
The true substance of Archibeque's complaint is that Devries's death was caused, not by appellee's use of the trash bag and shoe laces, but by the failure of appellee's staff to exercise sufficient care in monitoring Devries due to her suicidal history. This alleged failure does not fall within the Act's limited waiver of immunity. See Lacy v. Rusk State Hosp.,
B. Nonuse of Property
Likewise, Archibeque's allegations that appellee failed to use appropriate flashlights to adequately check on Devries during sleeping hours; negligently failed to note in Devries's chart her presence during room checks; and negligently failed to properly diagnose Devries's condition and mental status in her chart do not state a claim under the Act for two reasons. First, these averments are simply allegations of the nonuse of property: the failure to use a flashlight and Devries's medical chart. The nonuse of property cannot support a claim under the Act. White,
Second, medical information and the paper on which it may or may not be written is not tangible property under the Act. Kassen,
V. Conclusion
For all of the foregoing reasons, we hold that Archibeque failed to allege facts that affirmatively established the trial court's subject matter jurisdiction over her suit. Accordingly, the trial court properly granted appellee's plea to the jurisdiction and dismissed Archibeque's claims. We overrule Archibeque's sole point on appeal and affirm the trial court's judgment.
WALKER, J. filed a dissenting opinion.
SUE WALKER, Justice, dissenting.
I. Introduction
I respectfully dissent. I cannot agree with the majority's proximate cause analysis for two reasons. First, I cannot agree with the majority's conclusion that Tonya Archibeque failed to properly plead proximate cause. Second, I cannot agree with the majority's holding that North Texas State Hospital's use of the trash bag in Janae Devries's room did no more than furnish the condition that made her death possible and was too attenuated from Devries's death to be said to have caused it. I would hold that Archibeque pleaded a waiver of sovereign immunity, reverse the trial court's judgment, and remand this case to the trial court.
II. PROXIMATE CAUSE UNDER SECTION 101.021(2)
The Texas Tort Claims Act waives a governmental unit's sovereign immunity for personal injury or death caused by use of tangible personal property if the governmental unit would, if it were a private person, be liable to the claimant according to Texas law.[1] Accepting the allegations in Archibeque's pleadings as true and construing them in her favor, as we must, she pleaded that the Hospital negligently used a trash bag by placing it in a suicidal patient's room for the collection of trash.[2] A trash bag is tangible personal property.[3] Placing a trash bag in a patient's room is "use" of the trash bag.[4] A private mental hospital would be liable to Archibeque according to Texas law for negligently using an object by placing it in her suicidal mother's room when the object could foreseeably *162 be utilized to effectuate a suicide.[5] Therefore, the only question remaining is whether, for purposes of triggering a waiver of sovereign immunity under the Texas Tort Claims Act, Devries's death was "caused by a condition or use of tangible personal or real property,"[6] i.e., was proximately caused by the Hospital's use of the trash bag.
The majority first holds that Archibeque failed to properly plead causation. Specifically, the majority claims Archibeque did not plead that "Devries's death was caused by either the collection of trash or the tying of her shoes" so that "Archibeque has not alleged that Devries's death was proximately caused by appellee's use or misuse of the trash bag and shoe laces." I cannot agree. Archibeque pleaded that the Hospital negligently "furnished trashbags and shoestrings, tangible property, to the Decedent who had a history of suicidal tendencies," that the Hospital "[n]egligently failed to remove shoestrings and trashbags... from [Devries's] room," and that "the foregoing acts and omissions ... were a direct and proximate cause of the injuries and damages sustained by Decedent and Plaintiff." In my view, accepting the allegations in Archibeque's pleadings as true and construing those allegations in her favor, she pleaded that the Hospital's negligent use of tangible personal property, i.e., a trash bag in her mother's hospital room, proximately caused her mother's death.[7] I cannot agree with the majority's conclusion that Archibeque was required to allege the Hospital's physical collection of trash or tying of shoes caused Devries's death in order to properly plead proximate cause under the tort claims act.
The majority next holds that the Hospital's use of the trash bag did not cause Devries's death; it only furnished the condition that made her death possible. Again, I cannot agree. The causation standard embodied in section 101.021(2) is proximate cause.[8] Proximate cause consists of cause in fact and foreseeability.[9] The test for foreseeability is whether a person of ordinary intelligence would have anticipated the danger his or her negligence creates.[10] Cause in fact means that *163 the defendant's act or omission was a substantial factor in bringing about the injury that would not otherwise have occurred.[11] Cause in fact is not shown if the defendant's negligence did no more than furnish a condition that made the injury possible.[12] The evidence "must go further and show that such negligence was the proximate, and not the remote, cause of the resulting injuries" and "justify the conclusion that such injury was the natural and probable result thereof."[13]
At some point in the causal chain, however, the defendant's conduct may be too remotely connected with the plaintiff's injury to constitute legal causation.[14] In defining the limits of legal causation, the courts have explained:
[T]he law does not hold one legally responsible for the remote results of his wrongful acts and therefore a line must be drawn between immediate and remote causes. The doctrine of "proximate cause" is employed to determine and fix this line and "is the result of an effort by the courts to avoid, as far as possible the metaphysical and philosophical niceties in the age-old discussion of causation, and to lay down a rule of general application which will, as nearly as may be done by a general rule, apply a practical test, the test of common experience, to human conduct when determining legal rights and legal liability."[15]
Courts applying this too-remote-to-constitute legal causation principle typically base the remoteness determination on a time gap between the negligence and the injury, on the existence of intervening events, or on intentional third-party conduct. A review of proximate-cause case law demonstrates that at least one of these three distancing factors is present in every instance where the courts have concluded that the plaintiff's injuries were so remote, so attenuated, from the defendant's wrongful conduct that as a matter of law the defendant could not be held responsible for the injuries.
Based on the time gap, intervening events, and intentional conduct by a third party factors, the supreme court in Dallas Area Rapid Transit v. Whitley held no legal causation existed as a matter of law.[16] Whitley was assaulted and threatened with physical violence by a woman on a city bus.[17] Observing the potentially violent situation, the bus driver ordered Whitley to exit the bus, saying that he would come back for him in a few minutes. The woman who had threatened to kill Whitley exited the bus herself shortly thereafter, went directly home, recruited her son and his friends to assault Whitley, and returned to the place the bus had left Whitley. The woman and her recruits then severely beat Whitley.[18] The supreme court held that the woman and her accomplices caused Whitley's injuries, not the use of the bus.[19]
Based on the time gap factor, the supreme court in Union Pump Co. v. Allbritton held that a pump explosion was not the *164 legal cause of the plaintiff's subsequent fall off a pipe rack:
Even if the pump fire were in some sense a "philosophic" or "but for" cause of Allbritton's injuries, the forces generated by the fire had come to rest when she fell off the pipe rack. The fire had been extinguished, and Allbritton was walking away from the scene. Viewing the evidence in the light most favorable to Allbritton, the pump fire did no more than create the condition that made Allbritton's injuries possible. We conclude that the circumstances surrounding her injuries are too remotely connected with Union Pump's conduct or pump to constitute a legal cause of her injuries.[20]
Based on the time gap and intervening events factors, in Dallas County Mental Health & Mental Retardation v. Bossley, the supreme court held that a mental hospital's use of tangible propertyunlocking the hospital doorsand the doors' conditionbeing unlockedwere both too remote to constitute the legal cause of a patient's death when the patient escaped through the unlocked doors, ran half a mile, attempted to hitchhike on both sides of a freeway, and leapt in front of an oncoming truck as he was about to be apprehended.[21] The supreme court explained that although the patient's escape through the unlocked doors was part of a sequence of events that ended in his suicide, the use and condition of the doors were too attenuated from the patient's death to be said to have caused it.
Based on the time gap factor, the supreme court in Bell v. Campbell held that a wreck that left a trailer partially on the highway was as a matter of law too attenuated to be a proximate cause of a subsequent accident where a drunk driver hit the trailer and three passing motorists who stopped to help move it off the highway.[22] The supreme court explained:
All acts and omissions charged against respondents [the individuals in the first wreck] had run their course and were complete. Their negligence did not actively contribute in any way to the injuries involved in this suit. It simply created a condition which attracted Payton, Bell and Bransford to the scene, where they were injured by a third party.[23]
Based on the time gap, intervening events, and intentional conduct by a third party factors, in Texas Department of Mental Health & Mental Retardation v. Lee, this court held that the Wichita Falls State Hospital's use of an interior door by leaving it unlocked and the condition of another door leading from the men's wing to the women's wing, having no locking device, were too attenuated from Lee's sexual assault by an HIV-positive male patient to constitute the legal cause of Lee's injuries under section 101.021(2).[24] We held that "[t]he true substance of Lee's complaint is that the sexual assault was caused, not by the condition or use of the hospital doors, but by the failure of the hospital staff to protect her from her assailant when they knew that [because of her illness] she was hypersexual."[25]
Based on the time gap, intervening events, and intentional conduct by a third party factors, in San Antonio State Hospital v. Koehler, the appellate court held that no legal causation existed as a matter of *165 law when a patient escaped from a mental hospital, accompanied by a male acquaintance, through a hole in the fence surrounding the hospital and the acquaintance later sexually assaulted the patient at a boarding house.[26] The court explained that the intervening criminal act of the acquaintance attenuated the causal nexus between the hole in hospital's fence and the patient's injuries.[27]
Here, taking as true Archibeque's pleading that the Hospital furnished the trash bag to Devries, who had a history of suicidal tendencies, by placing it in Devries's hospital room and that while Devries was a patient of the Hospital she sustained a fatal injury by placing the trash bag over her head, there is no time gap, there are no intervening events, and there are no intentional acts by third parties between the Hospital's alleged negligent use of the trash bag and Devries's injuries. The Hospital allegedly negligently used the trash bag for the collection of trash in Devries's hospital room; while the trash bag was being used, Devries, a suicidal patient, killed herself with it. Unlike Union Pump and Bell, the negligently caused event was not over when the plaintiff's injuries occurred. Unlike Bossley and Koehler, Devries did not escape the Hospital's custody, run away, and then leap in front of an oncoming truck in Bossley's case or become the victim of a sexual assault in Koehler's case. Devries was at the Hospital and in the Hospital's care when she died. Unlike Whitley and Lee, the substance of Archibeque's complaint is not the failure to protect Devries from a third party. Archibeque's complaint is that the Hospital negligently used a trash bag in the room of a suicidal patient.
The Hospital's alleged negligent use of a trash bag here is simply not so remote or so attenuated from Devries's death that as a matter of law it cannot constitute a proximate cause of Devries's death. None of the Whitley, Bossley, Union Pump, Bell, Koehler, or Lee too-remote-to-constitute legal causation facts are present here.[28] No time gap exists between the Hospital's alleged negligence and Devries's injuries. No intervening events occurred between the Hospital's alleged negligence and Devries's injuries. No intentional acts occurred by a third party between the Hospital's alleged negligence and Devries's injuries. No attenuating facts exist at all on the record before us. A causal nexus exists between the Hospital's use of the trash bag and Devries's death. A person of ordinary intelligence would have anticipated the danger of placing a trash bag in the room of a suicidal patient and the Hospital's use of the trash bag was a substantial factor in bringing about Devries's death that would not otherwise have occurred. Thus, I cannot agree with the majority's conclusion that the Hospital's use of the trash bag in Devries's room was as a matter of law too attenuated from Devries's death to be said to have caused it.
III. Conclusion
I would hold that Archibeque has pleaded a cause of action against the Hospital *166 falling within section 101.021(2)'s waiver of immunity. I therefore would sustain Archibeque's sole issue, reverse the trial court's judgment, and remand this case to the trial court.
NOTES
[1] TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.001-.109 (Vernon 1997 & Supp.2003).
[2] Tex. Health & Safety Code Ann. § 532.001(a), (b)(8) (Vernon 2003). We refer to North Texas State Hospital and the Texas Department of Mental Health and Mental Retardation collectively as appellee.
[3] See Tex. Civ. Prac. & Rem.Code Ann. §§ 71.002-.004, 71.021 (Vernon 1997).
[4] Although this provision speaks in terms of waiver of immunity from liability, the Act also waives immunity from suit to the same extent. Id. § 101.025(a); Miller,
[5] Salcedo and Lowe have been limited on other grounds, see Bossley,
[6] See Salcedo,
[7] See Robinson v. Cent. Tex. MHMR Ctr.,
[8] Salcedo has been limited to its facts. See Bossley,
[9] We decline to follow San Antonio State Hospital v. Cowan,
Notes
[1] Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2) (Vernon 1997).
[2] See Tex. Ass'n of Bus. v. Tex. Air Control Bd.,
[3] Univ. of Tex. Med. Branch v. York,
[4] DART v. Whitley,
[5] See, e.g., Mounts v. St. David's Pavilion,
[6] Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2) (emphasis added).
[7] As correctly noted by the majority, no evidence was presented to the trial court at the hearing on the Hospital's plea to the jurisdiction.
[8] Dallas County MHMR v. Bossley,
[9] Union Pump Co. v. Allbritton,
[10] S.W. Key Program, Inc. v. Gil-Perez,
[11] Id.
[12] Bell v. Campbell,
[13] Carey v. Pure Distrib. Corp.,
[14] Union Pump Co.,
[15] Id. (quoting Springall v. Fredericksburg Hosp. & Clinic,
[16]
[17] Id. at 541.
[18] Id. at 542.
[19] Id. at 543.
[20]
[21] Bossley,
[22]
[23] Id.
[24]
[25] Id. at 868.
[26]
[27] Koehler,
[28] I have located no tort claims act case holding, in the absence of attenuating facts, that nonetheless as a matter of law the defendant's negligence is too remote from the plaintiff's injuries to constitute legal causation and merely provided the condition that allowed the injuries to occur.