                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-11-00022-CV
        ______________________________


 TITUS REGIONAL MEDICAL CENTER, Appellant

                          V.

      GLENNA VIRGINIA ROACH, Appellee




   On Appeal from the 276th Judicial District Court
                Titus County, Texas
               Trial Court No. 34,786




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
                                                  OPINION

         This appeal calls on us to address an oft-debated, but seldom crystal clear issue regarding a

governmental entity‘s immunity from suit. Glenna Virginia Roach (Roach) underwent surgery at

Titus Regional Medical Center (Titus). After Roach‘s surgery, she was taken to a hospital room

and placed in a hospital bed. In her suit, Roach alleged that the hospital staff failed to raise the

bed‘s safety rails and left her unattended while still under the influence of anesthesia and that Titus

failed to notify Roach‘s family that she had been placed in a room after the surgery was completed.

Roach fell from the bed and suffered significant injuries. This failure to engage the bed‘s safety

rails or to notify her family that she was then unattended in a room, alleged Roach, amounted to

negligence and was the basis of her lawsuit. 1                   Titus, in a pretrial motion, asserted the

governmental immunity provided in Section 102.021(2) of the Texas Civil Practice and Remedies

Code, which precludes suit against a governmental entity except in certain prescribed

circumstances; Roach claimed the hospital‘s immunity was waived because the acts alleged led to

         personal injury . . . caused by a condition or use of tangible personal or real
         property [such that] 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).                                We concur with the

determination by the trial court that Roach‘s pleadings alleged a cause of action which waived

1
 Roach also alleged negligence by Titus in failing to alert Roach‘s family that she had been moved from surgery to her
room. Roach concedes at argument that any negligence in this failure involved ―use‖ of information (i.e., the
knowledge that she had been moved from surgery to her room) and thus could not constitute ―use‖ of tangible property
for purposes of the waiver of governmental immunity, which is the sole issue on appeal. See Univ. of Tex. Med.
Branch at Galveston v. York, 871 S.W.2d 175 (Tex. 1994).

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Titus‘ immunity pertaining to the issue regarding the safety bed rails and we affirm the trial court‘s

order as to that issue. We reverse the determination that the issue regarding the transmission of

information was waived and remand to the trial court for further proceedings in accord with this

opinion.

Immunity and Standard of Review

       Sovereign immunity deprives a trial court of subject-matter jurisdiction for lawsuits in

which the State or certain governmental units have been sued unless the State consents to the suit.

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). In reviewing a trial

court‘s ruling on a plea to the jurisdiction, we construe the pleadings in favor of the nonmovant and

look to the nonmovant‘s intent. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993). We are not required to look solely to the pleadings when deciding a plea to the

jurisdiction; we may consider evidence relevant to jurisdiction when it is necessary to resolve the

jurisdictional issue raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).

Whether a trial court has subject-matter jurisdiction is a question of law which is subject to

de novo review. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.

2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Whether a pleader has

alleged facts which affirmatively demonstrate a trial court‘s subject-matter jurisdiction is a

question of law reviewed de novo. Likewise, whether undisputed evidence of jurisdictional facts

establishes a trial court‘s jurisdiction is also a question of law. Miranda, 133 S.W.3d at 225–26.



                                                  3
“Use” of Property

       The applicable governmental immunity statute and the scope of waiver expressed therein

has a ―long and arduous history.‖ York, 871 S.W.2d at 177. No proper examination of the issue

of interpretation and application of the governmental immunity statute would be complete without

a review of several much-discussed Texas Supreme Court cases which deal with the issue. We

begin that examination with a triumvirate of cases, spanning the period from 1975 to 1989, in each

of which the Texas Supreme Court found the allegations of the respective plaintiffs were brought

within the statute‘s contemplation of waiver of immunity.

The “Outer Bounds” of Waiver of Governmental Immunity

       The earliest of these three cases is Overton Memorial Hospital v. McGuire, 518 S.W.2d

528 (Tex. 1975), in which the plaintiff claimed that the hospital negligently provided a hospital

bed that possessed no safety rails; the plaintiff fell from the bed and was injured. The provision of

the rail-less bed, the plaintiff claimed, was a use or condition of tangible personal property which

waived immunity.      The hospital raised governmental immunity in its motion for summary

judgment, saying that the want of safety rails was a non-use of property, not a use of it; the trial

court granted the hospital‘s motion for summary judgment on that basis. The Texas Supreme




                                                 4
Court held that if the hospital were found to be negligent in failing to provide a bed without safety

rails, it could not assert governmental immunity. Id. at 529.2

         The second case frequently cited in discussions of the history of governmental immunity is

Lowe v. Texas Tech University, 540 S.W.2d 297, 300 (Tex. 1976). Lowe sued Texas Tech

University, alleging that the school was responsible for an injury Lowe sustained while playing

college football. Lowe claimed that his uniform included a knee brace (Lowe had suffered a prior

injury, necessitating the brace); Lowe‘s suit alleged the coaching staff either failed to provide

Lowe with the brace or required him to play without it. As a result, Lowe suffered a second, more

serious, injury that precipitated the suit. The Texas Supreme Court found, ―Both the standard and

specially designed protective devices are integral parts of the football uniform, e.g., special taping

or knee braces furnished a player with an injured knee are as much a part of his uniform as his

helmet, or shoulder pads, or whatever.‖ Id. Based on that rationale, it was determined that the

use of the football uniform (which included the knee brace) was use of tangible personal property,

thus bringing about a waiver of immunity.

         In the final one of the three cases, decided thirteen years later, the Texas Supreme Court

found a waiver of governmental immunity when the governmental agency failed to provide a life

preserver to a child (known to suffer seizures) who was taken swimming while under the care of a

governmental entity and who then drowned. Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169

2
 Years later, the Texas Supreme Court described the situation in Overton: ―The hospital did not merely allow the
patient access to the bed; it actually put the patient in the bed as part of his treatment.‖ San Antonio State Hosp. v.
Cowan, 128 S.W.3d 244, 246 (Tex. 2004).

                                                          5
(Tex. 1989). The Texas Supreme Court found ―[a] life preserver was just as much a part of

Robinson‘s swimming attire as the knee brace was part of the uniform in Lowe.‖ Id. at 171.

Thus, the life preserver, as part of the swimsuit, was deemed to be the use of tangible personal

property as contemplated in the statute; the allegation of liability because of the governmental

unit‘s failure to provide a life preserver was not barred by the claim of immunity. Id.

       Seven years after the holding in Robinson, the Texas Supreme Court described limitations

on the holdings in Lowe and Robinson: ―These cases represent perhaps the outer bounds of what

we have defined as use of tangible personal property.‖ Kerrville State Hosp. v. Clark, 923

S.W.2d 582, 585 (Tex. 1996). Moreover, ―[t]he 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. The plaintiffs in Kerrville were the parents of a woman killed by her estranged

husband, a person who had been treated for mental illnesses at the state hospital. When the

husband/patient was discharged, he was provided with oral medications to take with him upon his

discharge. The patient murdered his wife (daughter of the plaintiffs); the plaintiffs claimed that

the hospital was negligent in prescribing oral medications and that he should, instead, have been

medicated by injection. The Texas Supreme Court stated that the issue was whether the hospital‘s

―administration of an oral form of Thorazine, rather than an injectionable drug, constitutes use or

misuse of tangible personal property under the terms of the Texas Tort Claims Act,‖ and held that



                                                 6
―failure to administer an injectionable drug is non-use of tangible personal property and therefore

does not fall under the waiver provisions of the Act.‖ Id. at 584.

The Instant Case

        Titus relies on Kerrville‘s description of a non-use of tangible property; Titus maintains

that in this case, the allegation that the hospital staff failed to raise the safety rails equates to an

allegation that the hospital did not use the safety rails. Going further, Titus concludes that

Roach‘s allegation is based on a non-use of property, rather than a use of it. Just as the Kerrville

hospital did not waive its immunity by failing to use an injectable format of medication, reasons

Titus, it did not waive immunity by a failure to use the rails.

        Roach in turn cites us to Hampton v. University of Texas, 6 S.W.3d 627 (Tex.

App.—Houston [1st Dist.] 1999, no pet.). The plaintiffs in Hampton, like Roach, claimed the

patient fell from his hospital bed because the hospital did not engage the bed‘s safety rails.

Interpreting the petition‘s allegations in the light most favorable to the plaintiffs, the Houston First

Court of Appeals found the petition did indeed allege an injury caused by a condition or use of

tangible property; therefore, the hospital‘s governmental immunity had been waived. Id. at 630.

Hampton claimed that the hospital‘s failure to implement the safety features was a misuse of

tangible property; according to the opinion, the petition also alleged negligence in the hospital‘s

providing a defective bed, i.e., one that lacked essential safety features––raised safety rails. Id.

The court of appeals construed Hampton‘s pleadings to allege that the hospital, not Hampton,



                                                   7
retained control over the bed‘s safety features, before and during the time Hampton used the bed.

Id. at 631.        The court discussed Overton, Lowe, and Robinson and found ―no significant

difference in this case and those in which governmental units provided personal property lacking

some integral safety component.‖ Id.3 The court pointed out the hospital supplied Hampton

with a bed with attached safety equipment, which did not function until it was activated by the

hospital. The court rejected the hospital‘s defense that failure to activate the safety equipment in

question was a non-use of the property. This is the same argument Titus makes in this case.

            Obviously, the circumstances in Hampton were quite similar to those in Roach‘s case. It

is difficult for us to contemplate how, when a patient is placed in a bed as part of the hospital‘s

treatment of that patient, the bed is not being used in the treatment. The rails are quite different

from the knee brace in Lowe or the life preserver in Robinson because the rails simply cannot be

used at all unless they are used as a part of the bed. Therefore, the examination of whether there is

a use of property as contemplated in the statute, the ―property‖ in question is the entire bed and not

its adjunctive safety rails. Where the bed is equipped with safety rails, it is likewise difficult to

conjure how those rails were not meant to be used: positioned so as to effectuate their protective

purposes. The safety rails on a hospital bed are integral parts of the bed, just as the brakes on a

wheel chair would be parts of the chair, or the doors on an automobile would be parts of the car.

―[F]or ‗use‘ of tangible personal property to occur under the terms of the Act, one must ‗put or



3
    Hampton does not mention or discuss Kerrville, although released three years after that Texas Supreme Court case.

                                                           8
bring [the property] into action or service; to employ for or apply to a given purpose.‘‖ Kerrville

State Hosp., 923 S.W.2d at 584 (citations omitted).

         While the circumstances in Hampton are all but identical to the case before us, and that

case‘s holding is persuasive, we must be bound by the Texas Supreme Court‘s holdings. Titus

relies on the Kerrville holding that non-use of a possible treatment method (supplying a patient‘s

medication via injection, rather than merely physically providing the medication to the patient) did

not constitute use as contemplated by the waiver statute. ―The gravamen of their complaint is that

[the hospital‘s] non-use of an injectionable drug was the cause of their daughter‘s death. This

failure to use a form of drug is just as much a non-use of a drug as was the hospital‘s failure to give

its patient her medicine in Kassen.‖4 Id. at 585. Pointing out that almost every instance of

treatment by doctors in state medical facilities involves some form of tangible property, the court

said there could not be a waiver of immunity in each such occurrence, lest a patient could ―always

complain that a different form of treatment than the one employed would have been more effective

and still claim waiver under the Act. If such a complaint were enough to constitute the use of

tangible personal property under the Act, the doctrine of sovereign immunity would be rendered a



4
 Kassen v. Hatley, 887 S.W.2d 4 (Tex. 1994). In Kassen, a mental patient admitted to a state hospital was seen taking
her medication in excessive quantities. Id. at 7. Hospital employees therefore took the patient‘s medication away
from her. Id. The hospital refused to return the medication to the patient when she left the hospital, and she
committed suicide a short time later. Id. The patient‘s parents sued the hospital and its employees for wrongful
death, claiming that the hospital employees‘ failure to provide the patient with medication when she left the hospital
caused her death. Id. The Texas Supreme Court concluded that ―[t]his sequence of events does not allege an injury
arising from the ‗use‘ of the medication. It states a claim for non-use of property that does not trigger waiver of
sovereign immunity under the Texas Tort Claims Act.‖ Id. at 14.

                                                          9
nullity.‖ Id. at 586. Unlike Kerrville, there can be no medical decision in our contemplation

which would involve not properly positioning the safety rails on Roach‘s bed.

       Situations involving failure to give medication or give medication in a particular format are

distinguishable from situations where equipment (which would qualify as tangible property) is

used by a state actor hospital, but not used according to the equipment‘s contemplated purposes.

Roach‘s allegation that she was placed in a hospital bed that was equipped with safety rails which

were not engaged or used qualifies as a use of tangible property by the state entity. If the hospital

did not, as Roach alleges, raise or engage the bed‘s attached safety rails, that ―non-raising‖ does

not equate to ―non-use‖ as contemplated by the Texas Supreme Court in Kerrville. Such a literal

analysis of the situation does not comport with the overall meaning of the statute. In Kerrville,

the Texas Supreme Court offered the following hypothetical:

       For example, if a hospital provided a patient with a bed lacking bed rails and the
       lack of this protective equipment led to the patient‘s injury, the Act‘s waiver
       provisions would be implicated.

Id. at 585 (citing Lowe, 540 S.W.2d at 300). It is just as reasonable that if a hospital supplies a

patient with a bed equipped with safety rails, but does not activate or engage those rails, coupled

with the fact that the failure to utilize the rails is the proximate cause of the patient‘s injury, the

statute‘s waiver provisions would be implicated. Referring to Overton, the earlier hospital bed

case where the bed did not have rails, the Texas Supreme Court pointed out, ―[t]he hospital did not

merely allow the patient access to the bed; it actually put the patient in the bed as part of his



                                                  10
treatment.‖ San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004). 5 Roach

alleged in her petition that she was placed in the hospital‘s bed immediately after being brought

from the recovery room after surgery and the rails were not raised. The rails were part of the bed;

failing to properly employ the bed qualifies as the hospital‘s use of its tangible property. Roach‘s

allegations were sufficient to implicate the statute‘s waiver of immunity provision.6

         We affirm the trial court‘s denial of Titus‘ claim of governmental immunity solely on the

basis that the use of the hospital bed (with its safety rails) was a use of tangible personal property

as contemplated in the statute. We reverse the determination that there has been no waiver of

governmental immunity as to Roach‘s claim of negligence pertaining to the hospital‘s failure to

notify Roach‘s family that she had been returned to her room after surgery and remand to the trial

court for further proceedings in accord with this opinion.



                                                       Bailey C. Moseley
                                                       Justice
5
  In Cowan, the hospital allowed the patient to retain personal property, suspenders, and a walker, which he later used
to commit suicide. This was held not to be ―use‖ as contemplated by the statute.
6
  In its briefing and at oral argument, Titus refers us to our opinion in Texas State Technical College v. Beavers, where
we said,

         The integral safety component must be entirely lacking, rather than merely inadequate. . . . Stated
         conversely, supplying safety components that are inadequate, but not entirely lacking, does not
         constitute a use of personal property so as to waive immunity.

218 S.W.3d 258, 264 (Tex. App.––Texarkana 2007, no pet.) (citing Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 584
(Tex. 2005) (claim that knife used in college drama production inherently unsafe without an adequate stab pad did not
mean integral safety component lacking for purposes of governmental immunity waiver)). Here, even if the bed‘s
rails were characterized as integral safety components, they were neither lacking nor inadequate. They simply were
not used despite being part of the bed, which was used in Roach‘s post-surgery treatment.

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Date Submitted:   June 8, 2011
Date Decided:     June 24, 2011




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