TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Petitioner, v. Jeannie MILLER, individually and as representative of The Estate of Clyde Edwin Miller, III, deceased, and as next friend of Y.A. M., S.M. M., C.E. M., IV, and N.B. M., minor children, Respondent.
No. 00-0338.
Supreme Court of Texas.
Argued Oct. 25, 2000. Decided June 21, 2001.
51 S.W.3d 583
A civil conspiracy involves a combination of two or more persons with an unlawful purpose or a lawful purpose to be accomplished by unlawful means. See Insurance Co. of N. Am. v. Morris, 981 S.W.2d 667, 675 (Tex.1998). Fraud is the unlawful purpose or means that forms the basis of Pacific‘s conspiracy and “aiding and abetting”7 allegations; as the court of appeals noted, these allegations “do not relate to any other theory of recovery pleaded in the trial court.” 10 S.W.3d at 810. Ernst & Young‘s motion asserted that the undisputed facts entitled it to summary judgment on the fraud claim and on “any other ‘claims’ that Pacific Mutual has asserted“; thus, its motion encompassed these dependent claims. We have already held that the trial court did not err in granting Ernst & Young summary judgment on Pacific‘s fraud claim. Because Pacific‘s conspiracy and “aiding and abetting” claims are premised on Ernst & Young‘s alleged fraud, our conclusion on the fraud issue necessarily disposes of these other claims. Cf. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 862 (Tex.2000) (holding that failure of a claim for breach of contract necessarily defeated claim for breach of fiduciary duty that depended on breach of contract). Accordingly, the trial court did not err in granting Ernst & Young a final summary judgment.
IV. Conclusion
We conclude that Ernst & Young is entitled to summary judgment on Pacific‘s fraud claim because it negated the intent element of the claim as a matter of law by establishing that it did not have reason to expect Pacific would rely on the audit report when it bought the InterFirst notes. We also conclude that the trial court correctly rendered final judgment on all of Pacific‘s claims. We therefore reverse the court of appeals’ judgment and render judgment for Ernst & Young.
John Cornyn, Atty. Gen., Richard D. Naylor, Kurt Howard Kuhn, Meredith Lea Kennedy, Office of the Atty. Gen. of Texas, Austin, for Petitioner.
Martha K. Adams, Law Offices of Martha K. Adams, Galveston, Robert D. Green, Green & Barton, Houston, John McEldowney, Greer Hertz & Adams, Galveston, for Respondent.
Chief Justice PHILLIPS delivered the opinion of the Court, joined by Justice HECHT, Justice OWEN, Justice BAKER, Justice HANKINSON, Justice O‘NEILL, and Justice JEFFERSON.
This is an interlocutory appeal of a plea to the jurisdiction by the Texas Department of Criminal Justice (TDCJ). An inmate‘s wife sought damages following her husband‘s death from meningitis while incarcerated in a TDCJ facility. We must decide whether the plaintiff has established waiver of sovereign immunity from suit under the Texas Tort Claims Act by demonstrating that the injury was caused by use of tangible personal property.
I.
In August 1994, while imprisoned at the TDCJ facility in Huntsville, Clyde Edwin Miller III began suffering from nausea and severe headaches. Dr. Martin Chaney and the on-site clinic staff administered pain medications, intravenous fluids, electrolytes, anti-nausea medications, and icepacks to alleviate Miller‘s symptoms. After fifteen days of this regimen, on September 8, Miller was hospitalized in the University of Texas Medical Branch (UTMB) at Galveston. There he was diagnosed with cryptococcal meningitis, which caused his death on September 28, 1994.
Miller‘s surviving spouse, Jeannie Miller, individually and on behalf of his estate and their children, brought a negligence claim against the State, TDCJ, UTMB, and Dr. Chaney (now deceased). Jeannie Miller alleged that Dr. Chaney‘s failure to timely or adequately evaluate her husband made a serious condition deteriorate into a fatal one. Specifically, she alleged that her husband‘s personal injury and death were proximately caused by the defendants’ misuse of tangible property by (1) improperly administering pain medication and intravenous fluids which masked the symptoms of meningitis, (2) improperly reading and interpreting fever-detecting equipment, and (3) improperly using clinic facilities and equipment in diagnosing and treating Miller. The plaintiff further alleged that Dr. Chaney and the clinic staff were negligent “in failing to practice medicine in an acceptable manner consistent with public health and welfare,” failing to evaluate Miller in a timely manner, failing to make a proper diagnosis, failing to order appropriate laboratory tests, and failing to treat Miller‘s true condition.
The trial court denied both TDCJ‘s plea to the jurisdiction and its alternative motion for summary judgment. TDCJ filed an interlocutory appeal from the denial of the plea to the jurisdiction, and the court of appeals affirmed the trial court‘s judgment.2 TDCJ then petitioned this Court for review, contending that Texas Department of Transportation v. Jones, 8 S.W.3d 636, 639 (Tex.1999) (per curiam), requires a court to examine the pleadings to determine whether a plaintiff alleged waiver under the terms of the Tort Claims Act, which the court of appeals here did not do.
II.
We first consider whether this Court has jurisdiction to consider TDCJ‘s appeal. TDCJ asserts jurisdiction based on a conflict between the decision below and our recent decision in Jones.
III.
The court of appeals’ holding that a plaintiff can establish waiver of sovereign immunity simply by making a claim “pursuant to the Texas Tort Claims Act” is
The specific Tort Claims Act provision under which Jeannie Miller alleges waiver provides that “[a] governmental unit in the state is liable for ... 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.”
IV.
We turn now to an examination of Jeannie Miller‘s pleadings and pertinent jurisdictional evidence. Her petition alleged generally that TDCJ was negligent in its treatment of her husband by failing to diagnose meningitis. But the Tort Claims Act does not waive sovereign immunity for all negligence claims against governmental units. Accordingly, Jeannie Miller sought to bring her claim within the “personal injury or death so caused by a condition or use of tangible ... property,”
The Tort Claims Act and our cases have distinguished claims involving the failure to use, or the non-use of property, which do not waive sovereign immunity, from claims involving a “condition or use” of tangible personal property that causes injury, which do effect a waiver. Id.; compare Kerrville State Hosp., 923 S.W.2d at 584-86 (failure to prescribe medications
Jeannie Miller responds that she alleges not only TDCJ‘s failure to use tangible property which could have prevented her husband‘s death, but also its simultaneous misuse of pain-reducing and anti-nausea medications, intravenous fluids, and diagnostic equipment. That misuse, she claims, “mask[ed] the symptoms of the severity of the progression of the life threatening nature of meningitis.”
While this is an attractive attempt to distinguish our non-use cases, we are not persuaded. As we have previously observed: “There cannot be waiver of sovereign immunity in every case in which medical treatment is provided by a public facility. Doctors in state medical facilities use some form of tangible personal property nearly every time they treat a patient.” Kerrville, 923 S.W.2d at 585-86. If there is waiver in all of those cases, the waiver of immunity is virtually unrestricted, which is not what the Legislature intended. Id. at 586; see Lowe, 540 S.W.2d at 302 (Greenhill, C.J., concurring).
“Use” means “to put or bring into action or service; to employ for or apply to a given purpose.” White, 46 S.W.3d at 869; Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex.1989). TDCJ did “bring into ... service” and “employ” various drugs and medical equipment while treating Miller, but that some property is merely involved is not enough. Bossley, 968 S.W.2d at 342. Using that property must have actually caused the injury. White, 46 S.W.3d at 869. The property “used” on Miller did not.
In Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339 (Tex.1998), a mentally ill patient escaped through unlocked hospital doors and later committed suicide by leaping in front of a truck. 968 S.W.2d at 340-41. We concluded that neither the use of tangible property—unlocking the hospital doors—nor their condition—being unlocked—caused the patient‘s death. Id. at 343. The doors may have “furnish[ed] the condition that made the injury possible” by permitting the patient to escape into the community where he committed suicide, but “the use and condition of the doors were too attenuated from [the patient‘s] death to be said to have caused it.” Id.
Likewise, Miller‘s treatment might have furnished the condition that made the injury possible by suppressing symptoms that TDCJ staff otherwise could have recognized as meningitis, but the treatment did not actually cause his death. Neither the drugs nor the treatment afforded to Miller hurt him or made him worse, in and of themselves. His meningitis became progressively worse due to the passage of time and an alleged error in medical judgment; there is no evidence that any defendant‘s acts hastened or exacerbated his decline. That time might not have passed and that the symptoms of meningitis might have been recognized if the TDCJ staff had not treated Miller‘s complaints in an improper manner is in essence an allegation only of negligence, not of “use” of tangible personal property that “caused” injury.
V.
We recognize that the distinction we draw is problematic. But we believe that
Justice HECHT filed a concurring opinion.
Justice ENOCH filed a dissenting opinion.
Justice HECHT, concurring.
This is now the sixteenth case in the thirty-two years since the Texas Tort Claims Act was passed1 in which we have tried to determine whether personal injuries or death arose from the government‘s use of property so that the plaintiff‘s claim for damages is within the Act‘s waiver of sovereign immunity.2 The plaintiff asserts that her husband died because the prison clinic gave him pain medication that masked his symptoms, thereby preventing proper diagnosis and treatment. The Court concludes that the plaintiff‘s complaint, in essence, is not about a misuse of pain medication, which did not worsen her husband‘s illness or hurt him in any way, but about the misdiagnosis of that illness, for which the Legislature has not waived sovereign immunity. I agree that the use of property alleged by the plaintiff is not sufficiently central to her claim to bring it within the statutory waiver, and that allowing claims like hers would greatly increase the government‘s liability, contrary to the undoubted purpose of the Tort
What troubles me gravely is that sixteen decisions from this Court—on the average, one every other year since the Act passed—and hundreds more from the courts of appeals have done so little to infuse the Act‘s use-of-property standard with meaning that the task now appears hopeless. The Tort Claims Act does not define “use“, and nothing in the history of its passage provides a clue as to the standard‘s intended meaning.4 The standard appears to have been inserted in the statute simply to narrow its waiver of immunity enough that Governor Smith would not veto it.5 No other explanation has ever been advanced. No other jurisdiction employs such a standard for waiving sovereign immunity, so we cannot borrow from others’ experience. For want of any legislative guidance, we have given the word “use” its ordinary meaning6 and consequently held that for property to be used in causing injury it must actually be involved7 and not merely serve as the situs of injury8 or furnish the condition that makes injury possible.9 The inadequacy of these basic notions in providing any real guidance for applying the use-of-property standard is apparent in our decisions. We have held that failing to provide a hospital patient a bed with rails10 or a football player a properly protective uniform11 or an epileptic swimmer with a life preserver12 is a use of property within the statutory waiver of immunity, but failing to give a patient an injectionable drug13 or to install a pump to dissipate gas fumes14 is but a non-use of property and outside the waiver. We have held that misreading an electrocardiogram is a use of property,15 but misreading medical records is not.16
Frustrated by our inability to find, or even invent from scratch, any cogent explanation for applying the use-of-property standard, we have repeatedly beseeched the Legislature for guidance. In Lowe v. Texas Tech University, Chief Justice Greenhill, who had earlier argued in favor of some statutory waiver of sovereign immunity,17 wrote separately “to encourage the Legislature to take another look at the Tort Claims Act, and to express more clearly its intent as to when it directs that governmental immunity is waived.”18 Seven years later we complained in Salcedo v. El Paso Hospital District that despite calls for clarification from Chief Justice Greenhill in Lowe and from the venerable Dean Keeton in a report to the Texas Senate—stating that the use-of-
After thirty-two years and hundreds of cases, I am now convinced that it is simply impossible for the courts to meaningfully construe and consistently apply the use-of-property standard in the Tort Claims Act. The principal reason, I think, is that no discernible relationship exists between the use or non-use of property and governmental tort liability or non-liability. Setting aside the difficulty in determining “use“, and taking only clear cases: why should the government be liable for administering medication that injures a patient but be immune from liability for withholding medication that could have helped the patient? Or why should the government be liable for not confining a patient to his bed but be immune from liability for not confining him to the hospital? The point of such examples is not that liability or non-liability in particular circumstances is good or bad policy, an issue the judiciary should not decide; rather, the point is that the Legislature, which must decide such policy matters, has not provided the judiciary a usable answer. If the Legislature, in response to our several requests for help, had ever provided any indication of what it intended by limiting its waiver of immunity to injuries and death arising from a use of property, the courts would certainly be constrained to carry out that intent. But the Legislature has met every request with silence.
That silence cannot be ascribed to the absence of workable solutions to the immunity question. The Federal Tort Claims Act has exceptions to liability that are capable of being understood and applied.24 Moreover, its procedures for administrative adjustment of tort claims25 provide a non-judicial forum for seeking relief. The federal scheme has not inundated its courts with tort cases against the government; in fiscal years 1996 and 1997, only 365 tort cases against the United States were terminated by trial.26 Regardless of
The most this Court has been able to make of the use-of-property standard is that property must have been directly involved in an actionable injury or death, and that the Legislature intended only a partial waiver of immunity. In our “long and arduous history” of construing the statute,27 we have not succeeded in extracting anything more. Having thoroughly explored every possible basis for the standard and found none that is workable, having patiently searched for some pattern to emerge from three decades of attempts to apply the standard in various circumstances, and having repeatedly requested guidance from the Legislature to absolutely no avail, the courts cannot, in my view, continue to apply a legislative standard that cannot be understood sufficiently to reach reasoned, consistent decisions. A classification that is unreasonable, arbitrary, or capricious is not within the Legislature‘s authority to make.28 Neither, I would add, is a classification that cannot be understood and consistently applied.
To disregard the statutory waiver for personal injury and death claims arising from a use of property would significantly raise the immunity bar, contrary to the legislative intent that at least some claims be allowed. In modern times, governmental immunity from tort claims has been severely criticized.29 A creature of the common law,30 immunity has been limited or abolished in every jurisdiction in this country, either by statute or by judicial decision.31 The common-law rule of immunity in Texas was the judiciary‘s to recognize,32 and it is ours to disregard.33 An abolition of immunity is more likely, I
The Court has often said that it should defer to the Legislature for any waiver of governmental immunity. I have joined in that view and continue to endorse it, but defer does not mean abdicate. I no longer see any way to obtain a legislative determination and preserve reasoned decision-making by the courts without abolishing the government‘s common-law tort immunity, leaving it to the Legislature to decide whether and how to fill the void.
Justice ENOCH, dissenting.
I agree that the Court has jurisdiction to entertain the petition for review in this case. But the Court‘s reasoning contains two flaws that lead it to declare the wrong result. First, implicit throughout the Court‘s opinion is its belief that Jeannie Miller cannot prove that the medicine‘s masking of her husband‘s symptoms caused his meningitis to go unrecognized by his doctors, and therefore she cannot prove that the medicine caused his death. But the question here is not whether Miller has proved that the medicine caused her husband‘s death. Rather the question is whether she has alleged that the medicine caused his death.1 She did.
Second, the Court misapplies Dallas County Mental Health & Mental Retardation v. Bossley.2 Bossley stands for the proposition that the use or condition of property that was not causally linked to the patient‘s injury did not invoke the Tort Claims Act‘s waiver of sovereign immunity.3 As in Bossley, it is undisputable that there was a use of property in this case, contrary to the majority‘s contention that the allegation here was “only of negligence, not of ‘use’ of tangible personal property that ‘caused’ injury.” But unlike Bossley, the plaintiff here presents a distinct causal link, which the majority side-steps, between the “use” of the property and the injury suffered.
For these two reasons, I respectfully dissent.
As the Court acknowledges, Miller “al-leg[ed] that misuse of various medications and medical equipment masked the diagnosable symptoms of” her husband‘s meningitis.4 And as a result, the doctors failed to diagnose the meningitis. Consequently, she argues, her claim falls within the narrow waiver of sovereign immunity for claims of death or personal injury “caused by ... use of tangible ... property....” 5 Yet the Court rejects Miller‘s argument asserting that the causal connection between the medication and her husband‘s death is too attenuated.6 The Court‘s reasoning is not only unpersuasive, it‘s not credible.
This Court has, on a number of occasions, pleaded with the Legislature to reconsider the waiver section at issue not only because its application is difficult but because its concept seems almost irrational.7 Justice Hecht‘s concurrence empha-
TDCJ gave Miller‘s husband medicine—tangible personal property. A fact the Court concedes. And that medicine caused a change in the condition of the patient. A fact the Court cannot avoid. But the Court claims that this use of medicine did not cause Mr. Miller‘s death as Bossley requires: “TDCJ did ‘bring into ... service’ and ‘employ’ various drugs and medical equipment while treating Miller, but that some property is merely involved is not enough. Using that property must have actually caused the injury. The property ‘used’ on Miller did not.”8 Really?
Bossley‘s charge is that “[p]roperty does not cause injury if it does no more than furnish the condition that makes the injury possible.”9 There is neither doubt nor dispute that Miller claims that the medication that TDCJ gave her husband did more than merely furnish the condition that killed Mr. Miller. She alleges that the medicine caused his doctors to misdiagnose the real problem—the meningitis—by hiding its symptoms. With proper candor, the majority acknowledges that the medicine “might have furnished the condition that made the injury possible by suppressing symptoms that TDCJ staff otherwise could have recognized as meningitis ....”10 How this is not an allegation of causation under anyone‘s definition escapes me. But the Court appears to be caught up in its misapplication of Bossley.
Bossley dealt with a situation where an employee left a door unlocked—a condition of property conducive to escape by a mental patient.11 Here, though, the property wasn‘t just in a particular state of existence, the property was medicine with active ingredients actually ingested by the patient, given by the state to the patient, and intended by the state to alter the patient‘s condition. And Miller‘s complaint is that the medicine affected the doctor‘s ability to properly diagnose her husband‘s illness. Bossley‘s causation discussion dealt with the lack of a causal link between the use or condition of the property and the patient‘s death12—not with a situation where there actually existed a causal link between the use of the property and the patient‘s death.
Bossley‘s legitimacy depends on the fact that the unlocked door was too far removed from the patient‘s death—the patient was run over when he ran into traffic,13 he didn‘t kill himself because the door was unlocked. But had the allegation been that Bossley killed himself because of an irrational fear of unlocked doors, the door would still have done “no more than furnish the condition that makes the injury possible.” Yet in that case the door would have been causally linked to the patient‘s death. I suggest the outcome in Bossley might have been different.
This Court‘s opinion in Salcedo v. El Paso Hospital District14 aptly demonstrates the same distinction. This Court has, in recent years, been critical of that opinion because the case dealt with a doctor misreading information from an electrocardiogram machine. Our criticism of
And what would the result in York have been if the allegations were that a nurse misused, not misread, a thermometer resulting in incorrect information being recorded, which in turn resulted in the doctor misdiagnosing the patient‘s condition. Is there any doubt that a causal link between the misuse of a thermometer and the patient‘s injury would have been alleged?
And how should the Court deal with Overton Memorial Hospital v. McGuire?16 In McGuire, a patient fell out of a hospital bed and was injured.17 The Court held that negligently providing a bed without rails when the bed was being used to protect a patient that could not protect himself was “use” of tangible personal property that “caused” the plaintiff‘s injury.18 But the bed didn‘t do anything. It didn‘t expel the patient, nor did it permit someone to push the patient out of bed. Rather, the patient simply fell out of bed because there were no rails to hold him in bed.19 In truth, the rail-less bed did no more than furnish a condition that made the patient‘s injuries possible—the Bossley standard the Court uses in this case. So shouldn‘t McGuire be overruled? It‘s telling that the Court doesn‘t do so.
The point is that although it is the doctor‘s misdiagnosis that is the direct cause of a patient‘s injury, to reach that diagnosis, the doctor relies on information that comes from a number of sources, which includes machines, medicines and patient complaints. If any one of those sources fails to provide accurate information, leading to the misdiagnosis, a causal link to the injury is established. And when the source of that information is improperly used tangible personal property, the Tort Claims Act waives sovereign immunity.
The allegation in this case is that by giving Mr. Miller medicine, his symptoms were “masked.” And it was this masking that generated inaccurate information that, by being relied upon by the doctor, resulted in the doctor making an inaccurate diagnosis. Unlike Bossley, there are allegations here that the use of tangible personal property, by altering the patient‘s symptoms, caused the doctor to misdiagnose the patient‘s illness.
In sum, the real Bossley causation problem is that the unlocked door and the patient‘s running into traffic couldn‘t be causally linked. In the Bossley context, the “furnish a condition that makes the injury possible” language is correct. But here, the majority has used that same language to create a causation standard so burdensome that the medicine would have to have literally killed the patient to have
I don‘t assert that Miller can prove causation—that medicine that merely relieves patient‘s symptoms can cause doctors to mis-diagnose serious illnesses—that remains for expert proof and a decision on the merits. But as a matter of law, alleging that medicine masked symptoms, leading to an error in diagnosis, meets the threshold allegation of use of personal property under the Tort Claims Act.
The trial court has jurisdiction to enter-tain the merits of Miller‘s complaint. Consequently, the court of appeals judgment should be affirmed. I respectfully dissent.
Notes
(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.”