IN THE SUPREME COURT OF TEXAS








IN THE SUPREME COURT OF TEXAS
 
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No. 07-0783
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Irving W. Marks, 
Petitioner,
 
v.
 
St. Luke’s Episcopal Hospital, 
Respondent
 
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On Petition for Review from 
the
Court of Appeals for the First 
District of Texas
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Argued September 11, 2008
 
            
Chief Justice 
Jefferson, concurring.
            
In Diversicare, a case involving a 
sexual assault of one nursing home patient by another, I argued that the MLIIA’s broad “safety” definition encompassed what would 
otherwise be ordinary premises liability claims against health care providers. 
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 859-61 (Tex. 
2005) (Jefferson, C.J., concurring and dissenting). The Court, however, 
disagreed, noting that “[t]here may be circumstances that give rise to premises 
liability claims in a healthcare setting that may not be properly classified as 
health care liability claims.” Id. at 854. The 
Court described the plaintiff’s claims in that case as “implicat[ing] more than inadequate 
security or negligent maintenance,” unlike claims involving “an unlocked window 
that gave an intruder access to the facility or a rickety staircase that gave 
way under her weight.” Id.
            
The loose footboard here is indistinguishable from the rickety staircase 
referred to in Diversicare. Under Diversicare, Marks’s claim is a “premises liability 
claim[] in a healthcare setting that may not be 
properly classified as [a] health care liability claim[].” Id. 
Accordingly, I join the Court’s opinion and concur in its judgment.
 
                                                                                                
___________________________
                                                                                                
Wallace B. Jefferson
            
            
            
            
            
            
            
            
Chief Justice
 
 
Opinion Delivered: August 28, 2009