Opinion
NO. 03-19-00465-CV
11-04-2020
The University of Texas at Austin, Appellant v. Meagan A. Moses, Appellee
FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-17-005359 , THE HONORABLE DUSTIN M. HOWELL, JUDGE PRESIDING CONCURRING AND DISSENTING OPINION
According to the Court, Moses raises two alternative negligence claims: • a claim based on "University medical staff us[ing] a specific type of exam table—an exam table without guardrails—to support her as she received a flu injection . . . given her known history of fainting when receiving shots"; and, • alternatively, a claim that "even if medical staff did not initially commit a negligent act by placing her on an exam table without rails, they did so later when they left her alone on the table after giving her the flu shot and knowing her history of fainting." Ante at ___. On appeal, the issue is whether the Texas Tort Claims Act (TTCA) "clear[ly] and unambiguous[ly]" waives the University's immunity, see Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012), from Moses's claims that her personal injury was caused by the University's "use" of tangible personal property, see Tex. Civ. Prac. & Rem. Code § 101.021(2). The issue "is immunity, not liability," and concerns "whether, looking at the gravamen of the plaintiffs' complaint, a fact issue exists regarding whether [the plaintiff's] injury was proximately caused by the [defendant's] 'use' of tangible personal property." University of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 518 (Tex. 2019).
The live petition has a single cause of action: "[Moses] sues [the University] for the negligent use of an exam table without railings to prevent Ms. Moses from falling while she was unconscious." In her response to the University's plea to the jurisdiction, Moses expanded on this claim with supporting evidence: "To properly use the exam table to prevent injury, [the University's] employee should have remained with Ms. Moses to prevent her from falling off the side, or [the University] could have used a different piece of equipment that it had available, such as a recliner or a gurney that had components to prevent a person from falling out of them."
The Court affirms the trial court's decision that the TTCA waives immunity. I concur in the judgment to the extent the Court concludes that the evidence did not negate the trial court's jurisdiction over Moses's first purported claim because a fact issue exists as to whether the University's use of the exam table proximately caused Moses's injury. See id.
I write separately, however, because I disagree with the Court that immunity was waived as to Moses's purported alternative claim. A negligence claim based merely on medical staff leaving a patient alone on a table does not constitute "use" of the table, and therefore the TTCA has not clearly and unambiguously waived sovereign immunity as to this claim. See id. ("[A] patient cannot merely allege that a medical provider used tangible personal property during treatment; the patient must also demonstrate that the use of the particular property at issue was both improper under the circumstances and caused injury."). It is the medical staff's failure to be present to restrain Moses from falling that allegedly caused the injury, not "the condition or use of property." See id. at 517 (noting that "'requirement of causation is more than mere involvement'" and that immunity is not waived when "patient's death 'was caused, not by the condition or use of property' but by the hospital's failure to restrain the patient" (quoting Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998))). Thus, I respectfully dissent from the Court's judgment to the extent it affirms the trial court's determination that immunity is waived as to the alternative claim.
/s/_________
Melissa Goodwin, Justice Before Justices Goodwin, Baker, and Kelly Filed: November 4, 2020