DALLAS METROCARE SERVICES, Petitioner, v. Adolfo JUAREZ, Respondent.
No. 12-0685.
Supreme Court of Texas.
Nov. 22, 2013.
IV. Conclusion
We answer the first certified question “no” and do not answer the second.
Joel E. Geary, Kathryn E. Lоng, Vincent Lopez Serafino Jenevein, PC, Dallas, TX, for Petitioner.
Julian V. Buenger, Julian V. Buenger, P.C., Dallas, TX, for Respondent.
PER CURIAM.
After being sued by a patient who was struck by a falling whiteboard, a governmental entity pled immunity, arguing that
Dallas Metrocare Services is a public nonprofit organization that provides mental health care to Dallas County residents. Adolfo Juarez attended periodic trеatment and counseling sessions at one of Metrocare‘s clinics. During one such session, Juarez was seated at one end of a long rectangular table in the clinic‘s conferеnce room. A 4’ by 8’ whiteboard that had been propped on a table behind him fell, hitting Juarez in the head. Both parties agree that no one was writing on or moving the whiteboard, or its table, when the incident occurred.
Juarez sued Metrocare for negligence. Metrocare filed a jurisdictional plea, asserting that Juarez had failed to allege facts demonstrating a waiver of Metrocare‘s immunity under the Texas Tort Claims Act. Metrocare argued that Juarez‘s claim neither involved Metrocare‘s “use” of tangible personal property, nor was a claim for premises liability under the Act. See
Metrocare appealed, and the court of appeals affirmed, rejecting Metrocare‘s arguments that Juarez‘s pleadings failed to demonstrate a waiver of Metrocare‘s immunity under either the premises liability prong or the “use” or defective “condition” prongs.
In doing so, the court of appeals considered Juarez‘s amended petition and concluded that his pleadings included allegations based on the unsafe “condition” of tangible personal property. Thоugh Metrocare‘s appellate briefs included arguments addressing all potentially relevant prongs—premises liability, use, and condition—the court of appeals determined thаt Metrocare‘s plea to the jurisdiction had “wholly failed to address Juarez‘s claim that the negligence claim involved the condition of tangible personal property.” 420 S.W.3d 78, 81. The court of appeals noted that “[a]lthough Metrocare [has] now raise[d] arguments asserting Juarez [could] not allege a claim involving the condition of tangible personal property,” the court believed that its “review [wa]s limited to the grounds set forth in [Metrocare‘s] plea to the jurisdiction that was before the trial court.” Id. (citing City of Dallas v. Turley, 316 S.W.3d 762, 774 (Tex.App.-Dallas 2010, pet. denied)). The
Because the court of appeals first noted that its review was “limited to the grounds set forth in the plea to the jurisdiction,” which did not includе the condition argument, but nevertheless concluded that Juarez “alleged a negligence claim involving the condition or use of tangible personal property,” it is unclear exactly which of Metrocare‘s arguments the court of appeals considered or relied upon in affirming the trial court‘s denial of the plea. In any case, the court of appeals erred when it concluded that it could not consider jurisdictional arguments that Metrocare raised for the first time on appeal.
Shortly after the court of appeals issued its opinion, we decided Rusk State Hospital v. Black, 392 S.W.3d 88 (Tex.2012). The question in Rusk was whether “an appellate court [could] consider on interlocutory appeal whether a governmental entity has immunity when the trial court did not address the issue first.” Id. at 93. We decided that because immunity from suit implicates a court‘s jurisdiction, the Rusk court of appeals erred when it declined to consider the state hospital‘s nеw immunity arguments on appeal. Id. at 91. We held that even “if immunity is first asserted on interlocutory appeal, section 51.014(a) [of the
Unlike the defendant in Rusk, Metrocare asserted additional grounds for immunity on appeal rather than еntirely neglecting to raise its immunity defense in a plea to the jurisdiction. But because the court of appeals declined to consider Metrocare‘s arguments addressing Juarez‘s сlaims on the “condition of tangible personal property,” yet nevertheless concluded Juarez “alleged a negligence claim involving the condition or use of tangible personal property,” the court of appeals’ decision does not comport with Rusk. 420 S.W.3d at 81. On remand, the court of appeals should consider all of Metrocare‘s immunity arguments, inсluding those addressing the whiteboard‘s “condition.”
To the extent that the court of appeals based its judgment on the “use” prong, this was also error, because Juarez has not demonstratеd that the Act‘s “use” prong has waived Metrocare‘s immunity. See
Metrоcare did not “use” the whiteboard merely by making it available for use. As
Finally, we are unclear how the court of appeals disposed of the parties’ arguments concerning premises liability. See 420 S.W.3d at 80 (noting only that Metrocare had taken the “precise opposite рosition in the trial court” on the premises liability issue). To the extent that the court did not address any premises-liability arguments that were properly before it, it should do so on remand. We express no opinion on whether Juarez has alleged a premises-liability claim that waives Metrocare‘s immunity, just as we express no opinion about the “condition” prong.
Accordingly, withоut hearing oral argument, we grant Metrocare‘s petition for review, reverse the court of appeals’ judgment, and remand the case to that court for further proceedings consistent with this opinion.