*1 granted But since the Commission a hear- suspensions which do not ex- disciplinary in days ceed fifteen “unless the order violates that Duckett did fact determined adversely affects Duck- right regulations, constitutional rules and violate internal right.” Firemen’s and Po- property vested he was ett as much review as received licemen’s Commission of the (We Civil Service at the time. permitted the law under Blanchard, of Fort Worth v. City changed since been to note that the law has This decision makes temporary suspensions hearing make independent- it clear 20 must be read that § yet has not mandatory.) legislature The ly right 18 and that Duckett has no § process protec- seen fit to extend full due review in the district court unless the ad- proceedings disciplinary all under tions to proceedings his ministrative violated consti- Act, not have court does this rights. tutional We think conclusion protec- authority judicially enact such with Department City consistent Fire tion. Worth, City Fort Worth v. of Fort 147 Tex. on which the trial Finding grounds no (1949), only we might jurisdiction, based its have has authority opposite Duckett cited for the rulings. court’s affirm the trial Therefore, conclusion. we have reviewed solely purpose the facts for the of determin- trial court have
ing whether should
accepted jurisdiction based on Duckett’s rights
claim that his constitutional were
violated. only fact in is whether controversy actually Duck-
Fire Marshall Greer ordered participation ett to schedule firearms BILLSTROM, Appellant, Kathleen would qualifying participants course so that be for accumulated apply entitled CENTER, originally time. Duckett admits that he MEDICAL MEMORIAL agreed no be accumulated time would Appellee.
given, he he was entitled to argues but 1467. No. mind, changed believe that Greer his based upon Appeals his knowledge superior that another Court of Civil (Chief Investigator Mikeska) Corpus had Arson Christi. slips time signed some accumulated March Rogers Fire information that Chief 8, 1980. Rehearing May Denied approved slips. had other time
Assuming Duckett’s version true, we can find no facts suffi
facts support his claim his constitu
cient Rather, rights we see
tional were violated. an unfortunate failure in communica
only Duckett,
tions between Greer constitu not amount to a violation of
does rights.
tional sympathize
We with Duckett’s procedures
claims that the administrative giving Fire him
followed Chief in of his are undesirable suspension
notice capricious have permitted could arbitrary disciplinary action which could have refused review.
Commission *2 February alleged that on
Appellant psychiatric admitted to the White was At the of Memorial Medical Center. unit admission, “he was mentally of his time examining agitated.” The confused and *3 closely ordered the head nurse to physician following day On the observe White. tried to leave agitated and White “became ” two . . hospital on at least occasions the security in room number White locked was hospital floor of the so 732 on the seventh hospital grounds he the that could not leave maintained. so treatment could be and that m., partially removed 4:00 a. White About win- from one the security the screen window, fash- opened an unlocked dows and room, in the bedsheets his rope ioned out hospital going and tried to leave which would rope on bedsheet the window a fell, White sustain- ground. reach the not injuries. and mental physical ing permanent hospital staff that the appellant alleged White was placed on notice that had been disturbed, confused, would “mentally hospital grounds, if able.” try to leave the in his normal reasona- Had White been time of the at the ble mental condition occurrence, attempted have he would alleged further that Appellant do so. required the occurrence circumstances of 6252— of Section of article application because, Act Tort Claims 19 of the Texas Antonio, appel- Chapin, Tuck R. San hospital question, in “On the occasion lant. equipment, to the Plaintiff had furnished Barger, Kleberg, L. Dyer, S. E. Darrell screen security and a to wit: window Weil, Christi, for Corpus Redford & Dyer, and harmful that were both defective appellee. used. were purposes for connection, would the Plaintiff
In this security was not that screen show OPINION on the properly installed and maintained NYE, Chief Justice. security the window in occasion and both of That room itself was unlocked. take-nothing appeal This is an from a hospi- such that the such conditions were brought in a suit under summary judgment administrator, employees agents tal Appellant, the the Texas Tort Claims Act. foreseen have known and should White, Kevin legal guardian Richard place.” might take such occurrence brought against Memorial Medical suit damages recovery to recover pleading Center stated [Memorial] prem- injuries sought White when he “defective personal sustained was not under the rather, upon “defective attempted escape through theory, but ises” [security room” window while confined equipment screen]. screen and enu- alleged specifically Appellant fell from a further hospital’s mental ward and part negligence upon ground. merated acts of height of seven stories to the recognized invitees now in Texas should be Memorial abolished; which resulted from the “condition and 6) use issues of fact were personal property.” or real In accord- present concerning ability pay White’s allegations, plaintiff ance with these prayed hospital his bill. damages proximately resulting error, these Considering points negligence alleged. govern familiar rules keep we in mind the answered, filing spe- Memorial numerous judgments. summary our review exceptions cial all to the effect it was 166-A, Procedure, Rule Texas Rules of Civil liability provisions immune from under provides prop that a Texas Tort Claims Act. Memorial “there is no only upon showing er substance, alleged, also that it was enti- material fact and genuine any issue as to tled to a summary judgment as a matter of judg moving party that the is entitled to *4 1) law appellant’s pleadings because failed 166-A, ment as a matter of law.” Rule to state a cause of action the enumerat- T.R.C.P., permits granting the of a summa allegations 2) that, ed negligence judgment defending against ry party for acts, other alleged negligent than such the pleadings, if the whom a claim is asserted upon defects, case was based premises answers, summary judgment evidence which only Memorial owed White the duty genuine file is no issue show that there by private person
owed to a licensee upon to least one any as to material fact as at private property. alleges Memorial plaintiff’s cause of ac summary judgment essential element proper was because tion, there was to showing moving party no that the screen and the is entitled was defective, employees summary judgment Memorial knew as a matter of law. defective, employees it was or the Corporation, 450 Gibbs v. General Motors negligently willfully Memorial used the (Tex.1970); Burger, 827 “Moore” S.W.2d screen in such a way injure as to White. 492 Phillips Company, Inc. v. Petroleum Alternatively, alleged Memorial that it was (Tex.1972). 934 All conflicts in the S.W.2d entitled to partial summary judgment disregarded, the evidence evidence are limiting the issues in by striking the case support position to the the tends allegations out the in plaintiff’s petition party opposing accepted the motion is concerning the negli- enumerated acts of Insurance Farley true. v. Prudential Com gence on the part of the and employ- (Tex.1972); pany, 480 176 Parrott v. S.W.2d ees because stated no cause of action Garcia, (Tex.1969). 436 897 S.W.2d as to granted Memorial. trial court the Here, motion for movant’s motion also summary judgment, stating the “that the defendant’s Motion for non-mov- Summary challenges sufficiency the Judgment is well taken” and dismissed the pleadings genuine raise a issue of ant’s cause. material fact which would constitute a operation cause of action. The of such a Appellant assigns points six of error closely motion for which, essence, 1) contend that: analogous special exception challenging to a pleadings a valid cause of action stated plead sufficiency of the non-movant’s within the exception governmental im- case, the ings as matter of law. In such a stated within munity Section 3 of the Tort is directed petition to which the motion Act; 2) petition Claims should not be liberally in favor of must be construed most upon construed to be a suit based petition is entitled to the pleader. Such “premises defects” exception stated within inference which every benefit of reasonable 18(b); 3) present Section issues of fact were Martin window; can be drawn in its favor. properly concerning 4) the defective issues 763, Trevino, (Tex.Civ. 578 765 v. S.W.2d present concerning of fact were the seven 1978, writ ref’d n. r. App. Corpus Christi negligence enumerated acts of of Memori- — Perez, (Tex. e.); v. 443 855 agents; 5) al’s the distinc- Garza S.W.2d 1969, writ). It duty Civ.App. Corpus tion between the owed to licensees and Christi no — 646 the facts based “some condition or some use of appear alleged by
must meaning of of a within the tangible property” non-movant established absence 3, of action or of an issues of fact are right insuperable barrier Section and that summary right Hughes, present precluded judg- to a of recovery. Swilley v. 64, (Tex.1972). v. 488 S.W.2d 67 Smart ment. See Carlton, 553, (Tex.Civ.App. 557 555 S.W.2d sketchy, in this case is While record e.).
—Beaumont writ ref’d n. r. assume, purposes testing we must Act, hospital
The Tort that the had appellant’s pleadings, Claims Tex.Rev.Civ.Stat. screen, Ann. duty art. 6252-19 called a safe free install [hereinafter defects, patients Act], sovereign prevent waives to the lim mental immunity ited extent was provided grants escaping, negligent therein and damages personal doing question consent so. then becomes sue The initial Murto, governmen- injuries hospital or death. Greenhill and can assert whether negligence 49 or whether Immunity, immunity Governmental Tex.Law.Rev. tal for its Terrell, (1971); 462 588 Act. See g., immunity see e. State v. was waived McGuire, (Tex.1979); Hospital S.W.2d 784 Overton Memorial v. 518 Overton Memorial McGuire, Hospital (Tex. (Tex.1975). v. S.W.2d 1975); Department Texas Corrections not define the Since the Act does Herring, defects,” “premises the common and words 4 of the expressly Act waives and abolishes ordinary meaning applied. Satterfield v. *5 sovereign immunity to the extent of liabili Satterfield, (Tex.1969); 448 456 S.W.2d 3, ty by provides, created Section of Mental Health & Beggs Dep’t v. Texas parts, relevant that: 252, (Tex.Civ. Ret., 254 Mental 496 S.W.2d liable government “Each unit of shall be 1973, ref’d); Jack App. Antonio writ — San personal injuries or death ... Christi, 484 S.W.2d City Corpus son v. of or some so caused from some condition 1972, Christi (Tex.Civ.App. Corpus 806 — tangible personal, of property, use real or “premises” is e.). The word writ ref’d n. r. of under circumstances where such unit building part “a or of commonly defined person, if would be government, private a building grounds ap or other a with its with of this liable accordance the law is com The word “defect” purtenances.” liability subject state. Such to the “shortcoming, imperfec monly defined as a ” exceptions contained herein . . . necessary something or tion” “want of (Emphasis added.) general legal A definition completeness.” exception an to the Section 3 waiver Such “premises” of is: claim is from immunity of arises where the tenements; estate, includ- an “Lands and 18(b), “premises defects.” See Section thereon; . buildings . . land and provides: house, surrounding a The area land of defects, premises “As to the unit of by legal construction actually or government any shall owe to claimant it. A distinct forming with one enclosure private person a only duty by may owed mean a locality, and and definite area, or private property, pay- room, a licensee on unless other definite shop, or Land by ment has been made the claimant for real estate. portion of distinct Law Diction- premises.” the use of the v. Tenni- Black’s appurtenances.” State its son, 560, (Tex.1974). 1979). (5th 562 Ed. ary, p. 509 S.W.2d 1063 allegations re govern appellant’s it is Although Memorial asserts entitled concern the and window plead garding because the screen immunity appellant’s mental they are ac property, tangible evidence condition of ings and both within tually “premises ease defects” conclusively established falls legal defi purview 18(b) generally accepted common within the of Section hand, appellant’s alle con words. The Appellant, Act. on the other nitions appurte- a defect in an gations of action deal with alleged tends she cause
647
itself,
pleadings
allege
do not
nance to a room
rather than a defect
piece
equipment, irrespective
in a distinct
knowledge
had actual
of the
that Memorial
piece
equipment
of whether or not
security
screen
defective condition
such,
classified as a fixture. As
we are of
alleged
negligent
and window. The
acts
opinion
appellant’s allegations
its
against Memorial are to the effect that
18(b).
come within Section
The condition
negligently maintained
or
alleged
defective
security
screen
condition,
screen in a defective
closely analogous
window are more
to a
failed to lock the window.2
negligently
maintaining
defect in a floor or in
a floor in
These
are insufficient because
allegations
(defective)
a slippery
Compare
condition.
impose
which would
they
plead
do not
facts
Tennison,
(Tex.
v.
560
State
509 S.W.2d
licen
duty
breach of a
to a
liability for the
1974), with Lowe v. Texas Tech University,
by
see
the landowner.
sence of a defect as matter “fact.” premises. Although pleadings showed deposition The raises issues of fact concern actually paid not appellant that the had ing whether or of the premises the use of the at the time knowledge Memorial had actual of a accident, may a fact issue as to there defective and failed remedy condition it. ap to treat the whether Memorial intended response interrogatory pro- In to an or that pellant paying patient pounded by stated appellant, Memorial indigent without the abili appellant was an it was not known how White was able to ty pay. of the state of the Because open security screen and fall from the us, we are unable to record that is before question window. response In concern- do not believe question. decide this We screen, the condition of the legislature prepay intended McCuistion answered: having “paid” physical ment or the act “No, warped. The frame was frame to be the premises for the use of the deter window, warped got so he was relationship that resolved the minative act throught opening.” parties involved. White, McCuistion also testified who hereby judgment of the trial court every was Memorial’s staff fif- checked remanded reversed and cause minutes, teen had been observed with proceedings consistent further m. within staff at 4:00 a. and that ten opinion. thereafter, minutes White was discovered *7 lying ground outside the seventh MOTION FOR OPINION ON intervening floor window. Within the ten REHEARING minutes, managed White had somehow appellant Both Kathleen Billstrom together, open tie his bedsheets filed motions Memorial Medical Center have window, screen and fall. We are of the examined carefully We have rehearing. opinion before the trial evidence opinion our are each motion and of judge judgment hearing at the summary decision to case is sound. reverse this raises issues of fact which must be resolved argues that this is by strenuously the trier fact. evidence does not Appellant Such or some involving is enti- “some condition conclusively establish that Memorial case summary judgment, rendering action in 3. The trial struck from the record the court's deposi- against but cannot be used Memorial affidavits which were attached to can conclusively rendering against appellant establish them in used tion did not consider summary party complains, judgment. of Memorial. in favor Neither a See e. Holmes v. Corp., addition, Management g., In of this action. to Memorial’s answer Canlen appellant, (Tex.Civ.App. interrogatories propounded by Paso 542 S.W.2d no —El writ). support which Memorial relies to the trial involving injury proximate- personal property” pur- use of within the fined to cases ly use of caused some condition or view of Three of the Act because property which is owned or furnished allegations the substance of the contained State, results. we reach certain petition in her were to the effect that Me- Legislature safeguards But if mean that the provided morial “insufficient in for the to be liable intended State (devices) procedures” prevent personal proper in which every tort case escape. White’s used, then we ty was either used or not University, In Lowe Tech v. Texas reach results. This construction different (Tex.1976), Justice 300-301 general to a waiver would amount writing opinion Steakley, majority That is not neces virtually all tort cases. Court, Supreme our said “the affirmative bad, is sarily but I do not think that this furnishing allegation equip- defective Legislature what the intended. It is dif ment to Lowe states a the stat- case within case which does imagine ficult to a tort utory arising waiver of immunity nonuse, use, not involve the some personal some condition or use of some personal property; item real or and to addition, property.” majority opin- In me, in all cases where if there is a waiver ion “allegations negligent held that of a is personal property some item of either failure proper protective to furnish him used, virtually is an used or not there items personal property, to be used as a Lowe immunity.” unrestricted waiver part him, bring the uniform furnished his 301— University, supra, at v. Texas Tech case statutory within the waiver of immuni- added). (emphasis (em- ty Section Three of the [under Act].” grant appellant’s partially We therefore added). phasis holding This latter followed rehearing motion for so as not to forestall majority’s conclusion that both against her Memorial on whatever ba- suit specially designed protective standard and liability, any, developed if in the sis of devices, including special taping and knee during from the pleadings and evidence braces, integral parts are of the football course of the trial. uniform. rehearing grant- motion that, opinion We are of the even under part ed in and Memorial’s motion the most liberal interpretation, the thrust rehearing is overruled. of appellant’s pleadings concern the condi- tion of Memorial’s premises. Because this
case must be reversed for the reasons set original opinion appel-
forth in our to allow (among things)
lant other opportunity pleadings, amend her it occur may issues of fact will develop the trial of the ux., Joseph Ann GREENE et merits, along case on the either the lines set Greene, Appellants, original opinion, forth in our or because of personal “some condition or some use of ENTERPRISES, BEARDEN property” appellant’s as contended in mo- INC., Appellee. rehearing. tion for *8 No. 18227. in appellant’s
Inherent contentions are problems Supreme noted our Court Appeals of Civil Court University, supra. in Lowe v. Texas Tech Fort Worth. As our Chief Justice stated in the concur- April ring opinion in Lowe: 8, 1980. Rehearing May Denied “If the words ‘caused from some condi- tion of property or use’ are intended as immunity,
words of a limited waiver of if the waiver is intended to be con-