                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

 THE UNIVERSITY OF TEXAS SYSTEM                  §
 OPERATING AS THE UNIVERSITY OF                                  No. 08-15-00004-CV
 TEXAS AT EL PASO,                               §
                                                                    Appeal from the
                              Appellant,         §
                                                                  210th District Court
 v.                                              §
                                                               of El Paso County, Texas
 KENNETH PALOMINO,                               §
                                                                 (TC# 2013DCV3710)
                              Appellee.          §



                                           OPINION

       Kenneth Palomino was working on a class project in the university machine shop, using

one side of a double-ended pedestal grinder to polish a piece of metal, when his hand was caught in

the grinder and crushed. Palomino sued the university under the Texas Tort Claims Act, alleging

in part that the university was liable for negligently providing him with a grinder that “was devoid

of any protector guard[.]” We must determine whether this case falls within the Tort Claims

Act’s “use” exception to governmental immunity under the integral safety component doctrine.

We conclude that it does not and that the university’s immunity was not waived by the Texas Tort

Claims Act. Accordingly, we reverse the trial court’s order to the extent it denied the university’s

plea to the jurisdiction and dismiss Palomino’s claims.
                                               BACKGROUND

        Kenneth Palomino was an engineering student at the University of Texas at El Paso

(UTEP). Palomino injured his hand while using a double-ended pedestal grinder in the UTEP

engineering machine shop. A double-ended pedestal grinder is often used to remove excess

welding material from a metal piece in order to clean up or “dress” the welds. A double-ended

pedestal grinder has two grinding wheels, one on either side of a central motor. Typically, a

double-ended pedestal grinder is set up to grind smaller pieces of metal with the wheel on the left

side, and larger pieces with the wheel on the right.

        Palomino was working on a class project, when he decided to use the pedestal grinder to

remove excess welding material from one-inch square steel tubing he had just welded. The metal

piece was still hot and difficult to hold, so Palomino used thick welding gloves to hold the piece

while grinding it. Palomino chose to use the wheel on the right side of the pedestal grinder set for

grinding larger pieces. Palomino had not received instruction in the use of the pedestal grinder,

nor had he asked his instructor to demonstrate its use. Palomino alleges that the piece of metal he

was grinding was “sucked in” by the grinding wheel, pulling in his hand and crushing it in the

process.

        Palomino sued UTEP,1 alleging in part that UTEP was negligent in failing to provide a

protector guard on the pedestal grinder. 2              Palomino alleged in particular that UTEP had


1
  In his original petition, Palomino named the defendant as “The University of Texas System, Operating as the
University of Texas at El Paso.” In its answer, UTEP noted that it had been misidentified as “The University of Texas
System Operating as The University of Texas at El Paso.” The trial court also noted this discrepancy in its order on
UTEP’s plea to the jurisdiction. While UTEP is an institution of higher education within The University of Texas
System and is under the management and control of the board of regents of The University of Texas System, it is a
separate legal entity for purposes of suit. See TEX. EDUC. CODE ANN. §§ 65.02 (West Supp. 2016), 69.02 (West
2002). In any event, both UTEP and The University of Texas System are immune from suit unless the Tort Claims
Act has waived that immunity. Univ. of Texas at El Paso v. Moreno, 172 S.W.3d 281, 284 (Tex.App. – El Paso 2005,
no pet.).
                                                         2
negligently provided him “with an unguarded and unsafe double-ended pedestal grinder.”

Palomino identified two components that he asserted were integral to the safe use of the pedestal

grinder—a “protector guard” and a “safety rest,” which could be used to stabilize the metal piece

being ground.

        The evidence is undisputed that both a protector guard and a safety rest had been installed

on the pedestal grinder in question. Those safety components, however, were installed only on

the left side of the pedestal grinder with the wheel for grinding smaller pieces. The right side of

the pedestal grinder with the wheel for grinding larger pieces, which Palomino chose to use, did

not contain any similar protective components. UTEP presented evidence that this was the

typical set up for double-ended pedestal grinders in machine shops across the country, and its

experts testified the grinder was not missing any integral safety components and was safe to

operate.

        UTEP filed a plea to the jurisdiction based on governmental immunity and submitted

jurisdictional evidence, asserting in part that Palomino’s claim did not fall within the integral

safety component doctrine because that doctrine is limited to cases in which a safety component is

completely lacking as opposed to being merely inadequate. UTEP also asserted that Palomino’s

other claims (alleging a failure to adequately maintain and manage the pedestal grinder and to

properly instruct and supervise students in its use) did not fall within in any waiver of immunity

under the Texas Tort Claims Act. After hearing, the trial court granted UTEP’s plea to the

jurisdiction in part and dismissed all of Palomino’s claims except with respect to Palomino’s




2
  Palomino also alleged UTEP was negligent in failing to adequately maintain and manage the pedestal grinder, and in
failing to properly instruct and supervise students in the use of the pedestal grinder.
                                                         3
“allegation that the double-sided pedestal grinder in question lacked an integral safety

component.”

                                                 DISCUSSION

         UTEP contends the trial court erred in refusing to dismiss Palomino’s remaining

integral-safety-component claim because he failed to present any evidence that the double-ended

pedestal grinder lacked an integral safety component. In particular, UTEP points out that to

establish a waiver of sovereign immunity with respect to tangible personal property not actually

used by a governmental employee, a plaintiff must demonstrate that an integral safety component

was entirely missing from the property provided to him, and not merely inadequate. UTEP

argues that because the uncontroverted evidence shows that the pedestal grinder was not entirely

lacking an integral safety component, we must reverse and dismiss Palomino’s remaining claim.3

We agree.

                                Tort Claims Act and Standard of Review

         UTEP is a governmental entity, and the doctrine of governmental immunity shields it from

liability for the negligence of its employees absent a waiver of that immunity. See Texas A&M

Univ. v. Bishop, 156 S.W.3d 580, 583 (Tex. 2005); Esparza v. Univ. of Texas at El Paso, 471

S.W.3d 903, 908 (Tex.App. – El Paso 2015, no pet.) (“As a governmental entity, UTEP is

generally immune from suit.”). As a governmental unit, UTEP is immune from both suit and

liability for negligence unless the Texas Tort Claims Act has waived that immunity. Univ. of

Texas at El Paso v. Moreno, 172 S.W.3d 281, 284 (Tex.App. – El Paso 2005, no pet.); see

Sampson v. Univ. of Texas at Austin, No. 14-0745, 2016 WL 3212996, at *2 (Tex. June 10, 2016)

3
  UTEP also contends Palomino failed to show that his injuries were proximately caused by the lack of an integral
safety component. We do not reach this contention since its resolution is unnecessary to the final disposition of the
appeal. See TEX. R. APP. P. 47.1.
                                                         4
(“a governmental unit is immune from suit unless the Tort Claims Act expressly waives

immunity”).

       Immunity from suit implicates a court’s subject matter jurisdiction. Sampson, 2016 WL

3212996, at *2; Rusk State Hosp. v. Black, 392 S.W.3d 88, 91 (Tex. 2012). “Whether a court has

subject matter jurisdiction is a question of law, properly asserted in a plea to the jurisdiction.”

Sampson, 2016 WL 3212996, at *2; Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

225-26 (Tex. 2004). Where, as here, evidence is presented with a plea to the jurisdiction, the

court reviews the relevant evidence and may rule on the plea as a matter of law if the evidence does

not raise a fact issue on the jurisdictional question, a standard that generally mirrors the summary

judgment standard. Harris Cty. Flood Control Dist. v. Kerr, No. 13-0303, 2016 WL 3418246, at

*4 (Tex. June 17, 2016).

                           The Integral Safety Component Doctrine

       The Tort Claims Act expressly waives immunity from suit in three areas: (1) use of

publicly owned automobiles; (2) injuries arising out of a condition or use of tangible personal

property; and (3) premises defects. Sampson, 2016 WL 3212996, at *2; Miranda, 133 S.W.3d at

225. In particular, the Tort Claims Act waives a governmental unit’s immunity from suit when

personal injury or death is caused by a “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(2) (West 2011).

       As noted by the Texas Supreme Court, this provision has led to vigorous debate over the

proper scope of the waiver and has “spawned a host of cases exploring the outer bounds of this

‘use’ exception to governmental immunity.” City of N. Richland Hills v. Friend, 370 S.W.3d 369,


                                                 5
372 (Tex. 2012); see also Sampson, 2016 WL 3212996, at *4 (“For four decades, Texas jurists

have repeatedly expressed concerns about the difficulty of discerning the Legislature’s intended

meaning behind the words ‘condition or use’ as they appear in the . . . Tort Claims Act.”) (quoting

Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 49 (Tex. 2015)). But, certain rules have emerged

from the myriad of cases exploring the “use” exception to immunity.

       For example, to state a claim for a “use” of tangible personal property under the Tort

Claims Act, the injury, as in the present case, must be contemporaneous with the use of the

tangible personal property—“[u]sing that property must have actually caused the injury.”

Sampson, 2016 WL 3212996, at *4 (quoting Tex. Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583,

588 (Tex. 2001)). Further, allegations of mere non-use of property cannot support a “use” claim

under the Tort Claims Act. Id. (citing Tex. Nat. Res. Conservation Comm’n v. White, 46 S.W.3d

864, 869-70 (Tex. 2001)); see also Friend, 370 S.W.3d at 372 (“It is well settled that mere nonuse

of property does not suffice to invoke section 101.021(2)’s waiver.”). Moreover, a governmental

unit “does not ‘use’ tangible personal property . . . within the meaning of section 101.021(2) by

merely providing, furnishing, or allowing . . . access to it.” Sampson, 2016 WL 3212996, at *4

(quoting Rusk State Hosp., 392 S.W.3d at 98).

       Important to this case, however, the Supreme Court has explained that non-use and

furnishing access to tangible personal property are distinguishable from situations in which a

governmental unit “provided equipment that lacked an integral safety component.” Id. In some

cases, the Supreme Court has held that when a plaintiff alleges that the state has provided him

property that lacks an integral safety component, immunity is waived under Section 101.021(2).

See Friend, 370 S.W.3d at 372.


                                                6
       This integral safety component doctrine had its genesis in Lowe v. Tex. Tech Univ., 540

S.W.2d 297 (Tex. 1976), in which the plaintiff complained that Texas Tech University failed to

give him a knee brace with his football uniform. Id. at 298. The Supreme Court concluded that

because a knee brace was, in light of Lowe’s previous knee injury, an integral part of his football

uniform, the failure to furnish it constituted a use of property sufficient to invoke the waiver of

immunity in Section 101.021(2). Id. at 300. Subsequently in Robinson v. Cent. Tex. MHMR

Ctr., 780 S.W.2d 169 (Tex. 1989), the Supreme Court held that the provision of swimming gear to

an epileptic patient without a life preserver also established waiver. Id. at 171. But, as the

Supreme Court has later explained, “our recent holdings have limited the precedential value of

those two cases.” Friend, 370 S.W.3d at 372.

       For example, in Kerrville State Hosp. v. Clark, 923 S.W.2d 582 (Tex. 1996), the Supreme

Court stated that Lowe and Robinson represented “the outer bounds of what we have defined as use

of tangible personal property.” Id. at 585. “The precedential value of these cases is therefore

limited to claims in which a plaintiff alleges that a state actor has provided property that lacks an

integral safety component and that the lack of this integral component led to the plaintiff’s

injuries.” Id. Later, in Texas A&M Univ. v. Bishop, 156 S.W.3d 580 (Tex. 2005), the Supreme

Court further explained that in deciding Lowe and Robinson, “we did not intend to allow both use

and non-use (i.e., failure to provide a more effective safety feature) to effect a waiver of immunity

under the Act.”     Id. at 584.    Rather, providing equipment that lacks “an integral safety

component” represents “the outer bounds of what we have defined as use of tangible personal

property,” and the Court will apply its precedent “narrowly only when an integral safety

component is entirely lacking rather than merely inadequate.” Id.


                                                 7
                                            Analysis

       UTEP relies heavily on the Supreme Court’s decision in Bishop to support its contention

that Palomino’s remaining claim does not fall within the integral safety component doctrine

because the double-ended pedestal grinder was not completely lacking in a safety component, but

at most was merely inadequate in having its safety components on only one side.

       In Bishop, the plaintiff, while acting in a university drama club production, was

inadvertently stabbed in the chest when a fellow actor missed the stab pad the plaintiff wore that

was intended to deflect the blow. 156 S.W.3d at 581. The director of the play, who was an

independent contractor, had decided to use a real knife for dramatic effect in the final climatic

scene. Id. at 581, 582. The Supreme Court held that the faculty advisors’ alleged failure to

properly supervise the props that the director chose did not constitute a use of tangible personal

property under the Tort Claims Act. Id. at 581. The Court noted that it had recently concluded

that a “governmental unit does not ‘use’ personal property merely by allowing someone else to use

it and nothing more.” Id. at 583 (quoting San Antonio State Hosp. v. Cowan, 128 S.W.3d 244,

246 (Tex. 2004)). The Court concluded that to the extent the plaintiff was claiming the faculty

advisors allowed the director to provide the knife by failing to properly supervise the production,

such negligent supervision, without more, did not constitute a “use” of personal property under the

Tort Claims Act that would waive the university’s immunity. Id.

       The plaintiff also claimed, however, that his case was analogous to Robinson and Lowe in

which immunity was waived when a state actor provided equipment that lacked an integral safety

component. Id. at 584. The Supreme Court disagreed, noting that it had previously said those

cases represent “the outer bounds of what we have defined as use of tangible personal property,”


                                                8
and that the Court has applied them narrowly only when the integral safety component is entirely

lacking rather than merely inadequate. Id. (quoting and citing Clark, 923 S.W.2d at 585).

        The Supreme Court noted that in Clark it had held that prescribing a medication less

effective that an alternative treatment does not mean that the medicine provided lacked an integral

safety component. Id. The Court explained it had already determined in Clark that claims of

failing to provide a more effective safety feature would not effect a waiver of immunity under the

Tort Claims Act.4 Id. The Supreme Court held that similarly, the plaintiff’s claim in Bishop that

the knife was inherently unsafe without an adequate stab pad did not mean that an integral safety

component was lacking for purposes of a waiver of immunity under the Tort Claims Act. Id.

        Similarly, in the present case, Palomino’s claim that the pedestal grinder was unsafe

because it lacked safety components on the right side does not mean that an integral safety

component was entirely lacking for purposes of a waiver of immunity under the Tort Claims Act.

The evidence is undisputed that the double-sided pedestal grinder did in fact have two integral

safety components installed—a protector guard and a safety rest, albeit they had been installed

only on the left side of the pedestal grinder. The pedestal grinder was therefore not “entirely

lacking” an integral safety component. Palomino’s contention that a protector guard or a safety

rest should have also been installed on the right side of the pedestal grinder is a claim that the

safety components that were installed were “merely inadequate” to protect him and remits to a

claim that UTEP failed to provided him a “more effective safety feature.” Accordingly, Palomino



4
  The Supreme Court distinguished Lowe and Robinson, explaining that for those cases to apply, the Court would have
to assume the university in Lowe would have waived immunity even if it had provided a knee brace if Lowe could
have shown another type of knee brace would have better protected him, and that the Court would have to assume that
MHMR in Robinson would have waived immunity even if it had provided a life preserver if Robinson could have
shown that MHMR should have provided him with a better one. 156 S.W.3d at 584 (quoting Clark, 923 S.W.2d at
585).
                                                        9
has failed to show that his claim falls within the Tort Claims Act’s “use” exception to

governmental immunity under the integral safety component doctrine.

       Palomino contends this case is controlled by Tex. State Tech. College v. Beavers, 218

S.W.3d 258 (Tex.App. – Texarkana 2007, no pet.). In Beavers, the college student was enrolled

in a diesel engine testing and repair class and was injured when he and a fellow student attempted

to flip a diesel engine over by using a hydraulic hoist furnished by Texas State Technical College

(TSTC). Id. at 260. Beaver’s hand was seriously injured when it was caught between the hoist

leg and the engine. Id. Despite not finding any evidence that an integral safety component was

completely lacking, the Texarkana Court of Appeals held that TSTC had “used” tangible personal

property in such a manner as to waive immunity under the Tort Claims Act. Id. at 265, 267. We

believe there are several differences that distinguish Beavers from the present case.

       First, the court in Beavers noted that TSTC’s sole argument on appeal was that immunity

was waived only if a state employee was physically operating the personal property at the time of

the injury. Id. at 266. Here, UTEP recognized the narrow exception to that rule and clearly

placed into issue Palomino’s failure to bring his case within the integral safety component

doctrine. Second, in Beavers there was evidence presented from three experts that the hydraulic

hoist furnished by TSTC was defective, while in the present case, the only expert evidence

presented showed that the double-sided pedestal grinder was not missing any integral safety

components but was set up in the accepted fashion with protective devices on one side only.

       Most important, in Beavers the court held that TSTC had not “merely” furnished the

hydraulic hoist in large part because the student had been instructed and directed in its use. Id. at

265 (posing the issue to be decided as: “Does the governmental unit ‘use’ the tangible personal


                                                 10
property when it negligently places equipment . . . into service, instructs the student in its use, and

directs the student to use the property?”). In the present case, the instructor testified that he did

not have time to instruct the class in the use of the double-sided pedestal grinder. Further,

Palomino testified the instructor was not around when he wanted to use the grinder, and that

instead, a teaching assistant told him he could “go ahead” when he asked if he could use the

grinder to dress the weld on the metal piece he had just welded.5 Thus, unlike the plaintiff in

Beavers, Palomino was neither instructed nor, more importantly, directed in his use of the

double-sided pedestal grinder.

         We know of no decision other than Beavers in which a court has concluded that furnishing

personal property is somehow transformed into a “use” of property when the governmental unit

has instructed the plaintiff in the use of that property. The Texas Supreme Court has never found

a waiver under those circumstances, and it appears unlikely the Court would do so given its

consistent limitations on the integral safety component doctrine and repeated warnings that the

doctrine is to be narrowly applied “only when an integral safety component is entirely lacking

rather than merely inadequate.” Bishop, 156 S.W.3d at 584.

         In this respect, we have determined, in the college-instruction context, that only an

instructor’s direct and mandatory control over the student’s actions could possibly result in a

waiver of immunity. El Paso Cmty. College Dist. v. Duran, 2015 WL 4480867, at *4 (Tex.App. –

El Paso July 22, 2015, pet. filed). In Duran, the college had provided the plaintiff with a

motorcycle to use in a motorcycle safety class offered by the district. Id., at *1. Duran fell and

suffered a broken shoulder while driving the motorcycle during the second day of instruction. Id.


5
  We note that Palomino did not make any negligence allegations in his petition concerning the teaching assistant, but
rather based his claims solely on the negligence of his instructor.
                                                         11
Duran sued the college alleging it had waived its immunity through the “operation or use” of a

motor-driven vehicle. Id. We concluded that because Duran was driving the motorcycle at the

time of her injury, immunity was not waived since the “operation or use” of the motor vehicle must

be that of a governmental employee, and not a third person. Id., at *2.

       Duran argued, however, that her instructors had effectively “operated or used” the

motorcycle through their class instruction by controlling the manner and method by which she and

the other students would use or operate the motorcycle. Id., at *2. Duran relied on two cases in

which the courts had determined that immunity was waived by the Tort Claims Act even though a

government employee was not operating the vehicle that caused the plaintiff’s injuries. See

County of Galveston v. Morgan, 882 S.W.2d 485, 490-91 (Tex.App. – Houston [14th Dist.] 1994,

writ denied) (county employee “operated and used” truck because the employee was responsible

for signaling the driver and controlling his operation of the truck that resulted in plaintiff’s

injuries); City of El Campo v. Rubio, 980 S.W.2d 943, 946-47 (Tex.App. – Corpus Christi 1998,

pet. dism’d w.o.j.) (police officer “operated or used” vehicle when he ordered plaintiff, an

unlicensed driver, to drive vehicle and follow him back to the police station resulting in plaintiff’s

injuries). We concluded that Duran’s reliance on these two cases was misplaced because the

government employees in both cases were considered to have used or operated the vehicle only

because they exercised direct and mandatory control over the driver’s actions. Id., at *4. While

the instructors in Duran’s class directed her operations of the motorcycle in the sense they were

teaching her how to drive it, Duran was not being compelled to obey their instructions. Id., at *4.

Duran did not plead or present any jurisdictional evidence that she had no choice by to follow their

directions, and the only penalty Duran would have incurred for non-compliance was dismissal


                                                 12
from the class. Id., at *4. We concluded therefore that Duran failed to establish a waiver of

immunity under the Tort Claims Act because she had failed to show that her instructors had

exercised direct and mandatory control over her actions. Id., at *4.

       Similarly, Palomino has not shown that any UTEP employee exercised direct and

mandatory control over his use of the pedestal grinder or that he had no choice but to follow any

such directions. At most, Palomino has only raised a fact issue that a teaching assistant told him

he could “go ahead” and use the grinder. Accordingly, Palomino has failed to establish a waiver

of immunity under the Tort Claims Act. We therefore grant UTEP’s issue on appeal.

                                         CONCLUSION

       Because UTEP’s immunity was not waived by the Texas Tort Claims Act under the

integral safety component doctrine, we reverse the trial court’s order to the extent it denied

UTEP’s plea to the jurisdiction on Palomino’s integral safety component claim and dismiss all of

Palomino’s claims for lack of jurisdiction.


                                              STEVEN L. HUGHES, Justice
August 24, 2016

Before McClure, C.J., Rodriguez, and Hughes, JJ.




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