      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00681-CV



                Texas School for the Blind and Visually Impaired, Appellant

                                                 v.

           Mel Dugosh, Individually and as Independent Executor of the Estate of
            Christopher Dugosh; and Richard Dugosh, Individually, Appellees1


                FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY
              NO. 84515A, HONORABLE GUY S. HERMAN, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The dispositive issue in this appeal is whether sovereign immunity bars a wrongful-

death and survival action arising from the choking death of a resident at the Texas School for

the Blind and Visually Impaired (TSBVI). For the reasons we explain herein, we are compelled to

conclude that it does. Consequently, because the trial court below held to the contrary in denying

a plea to the jurisdiction asserted by TSBVI, we must reverse the court’s order denying the plea and

render judgment dismissing the action.




       1
          TSBVI’s notice of appeal identified appellees as “Mel Dugosh and Richard Dugosh,
Individually and as next friend of C. D.” We have corrected the caption to reflect that Mel Dugosh
is appearing in her capacity as independent executor of Christopher’s estate rather than as
next friend.
                                          BACKGROUND

                 On May 3, 1985, Christopher Dugosh was born with profound developmental defects

that included Cornelia de Lange syndrome (a genetic disorder that can manifest through numerous

physical and intellectual limitations), deformed arms and hands, severe mental retardation,

hearing and vision impairments that his personal physician classified as deafness and blindness,

orthopedic limitations, growth limitations,2 and various conditions affecting his gastrointestinal tract.

During Christopher’s first eighteen years, his parents, Richard and Mel Dugosh, served as his

primary caregivers, aided by what Richard termed some “off and on” nursing support. On

August 17, 2003, his parents enrolled Christopher at TSBVI, where he lived in a dormitory

environment with other students. Prior to enrollment, Christopher’s physician advised TSBVI of

his many medical conditions and warned that Christopher was at risk of “choking.” Consequently,

the physician cautioned, Christopher required a “toddler” diet with “no milk, beef, small portions.”

                 Within a half hour following his evening meal on May 19, 2005—sixteen days

after his twentieth birthday—Christopher began gasping for air, collapsed, and ultimately died.

Emergency responders who were summoned to the scene reported that they found what appeared

to be pieces of broccoli in Christopher’s mouth. A subsequent autopsy revealed that Christopher’s

“upper airway was packed with chunks of poorly chewed food material including a portion of the

end of a hot dog measuring 1 inch all around . . . pieces of broccoli measuring up to 1-1/2 inches in

dimension as well as similar pieces of dumplings.” Similarly, Christopher’s “esophagus was

packed with abundant amount of poorly chewed large portions of broccoli, hot dogs, dumplings and


        2
            At age 20, Christopher was four feet, five inches in height and weighed 66.5 pounds.

                                                    2
other solid food material.” It is undisputed that TSBVI personnel had given Christopher pieces

of broccoli, hot dog, and french fries (the latter corresponds to the medical examiner’s report of

“dumplings”) during his evening meal. The medical examiner identified the cause of Christopher’s

death as the “result of asphyxia due to choking on bolus [a mass] of food. A contributing condition

is Cornelia de Lange syndrome.”

               Mr. and Ms. Dugosh, individually as Christopher’s heirs and wrongful-death

beneficiaries, and Mel Dugosh, in her capacity as the independent administrator of Christopher’s

estate, (collectively, the Dugoshes) sued TSBVI seeking monetary damages for what they alleged

was negligence or gross negligence of TSBVI personnel that proximately caused Christopher’s

death.3 TSBVI interposed a plea to the jurisdiction asserting that the Dugoshes’ claims were barred

by sovereign immunity. In support of its plea, TSBVI advanced two arguments. First, it argued that

the Dugoshes had failed to allege facts that would demonstrate a negligent “condition or use” of

tangible personal property that proximately caused Christopher’s death, so as to come within the

waiver of sovereign immunity contained in section 101.021(2) of the civil practice and remedies

code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021(2), .025 (West 2005). Second, TSBVI

argued that the TSBVI employees implicated by the Dugoshes’ allegations, and from whom the

institution’s liability would derive, were shielded by official immunity under the education code.

See id. § 101.021(2) (waiver tied to whether governmental unit “would, were it a private person,




       3
          See Tex. Civ. Prac. & Rem. Code Ann. §§ 71.001-004 (wrongful-death statute), .021
(survival statute) (West 2008).

                                                3
be liable to the claimant according to Texas law”); DeWitt v. Harris County, 904 S.W.2d 650,

654 (Tex. 1995).

               With their plea to the jurisdiction, TSBVI moved to dismiss the Dugoshes’ claims

under chapter 74 of the civil practice and remedies code, in the view that the Dugoshes’ claims were

“health care liability claims” and that the Dugoshes had failed to serve the expert report required by

that chapter. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2005 & Supp. 2009).

               Following a hearing in which both sides presented evidence, the probate court denied

both TSBVI’s plea to the jurisdiction and its chapter 74 dismissal motion. In its order, the court

included the following pertinent “findings” or conclusions:


       1.      Plaintiffs have presented facts wherein the condition and the use of tangible
               personal property are such that a claim can be made pursuant to the statutory
               waiver of sovereign immunity under the Texas Tort Claims Act;

                                               * * *

       3.      Plaintiffs’ claims are not subject to the expert report requirements of Texas
               Medical Liability Act; and

       4.      the immunity provisions set out in Texas Education Code §§ 22.0511 &
               22.052 are irrelevant to Plaintiffs’ claims as Defendant is not an independent
               school district.


This appeal ensued. See id. § 51.014(a)(8), (9) (West 2008).


                                           DISCUSSION

               TSBVI brings three issues on appeal that correspond to the three grounds for

dismissal it urged below. In its third issue, TSBVI argues that the probate court erred in denying its



                                                  4
plea to the jurisdiction because the Dugoshes do not assert that anything constituting a “condition

or use” of tangible personal property proximately caused Christopher’s death, so as to come within

the sovereign-immunity waiver of section 101.021(2). In its second issue, TSBVI contends that it

conclusively established that the personnel implicated by the Dugoshes’ claims were shielded by

official immunity, thus establishing that it would not be vicariously liable under Texas law for those

actions and thereby negating a waiver under section 101.021(2). Finally, in TSBVI’s first issue, it

asserts that the probate court abused its discretion in denying its motion to dismiss under chapter 74

of the civil practice and remedies code. In a cross-point, the Dugoshes assert that the probate court

abused its discretion in excluding certain deposition excerpts they sought to introduce during

the hearing.

                TSBVI’s third issue and the Dugoshes’ cross-point are dispositive.


Standard of review

                A plea to the jurisdiction challenges a trial court’s authority to adjudicate a plaintiff’s

cause of action. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26

(Tex. 2004). Analysis of whether this authority exists begins with the plaintiff’s live pleadings. Id.

at 226. The plaintiff has the initial burden of alleging facts that affirmatively demonstrate the

trial court’s jurisdiction to hear the cause. Id. (citing Texas Ass’n of Bus. v. Texas Air Control Bd.,

852 S.W.2d 440, 446 (Tex. 1993)). Whether the plaintiff met this burden is a question of law that

we review de novo. Id. We construe the pleadings liberally and look to the pleader’s intent. Id. If

the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction

but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading

                                                    5
sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. at 226-27. If, on

the other hand, the pleadings affirmatively negate the existence of jurisdiction, then a plea to the

jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. at 227.

                When deciding a plea to the jurisdiction, we may consider evidence that the parties

have submitted and must do so when necessary to resolve the jurisdictional issues. Bland Indep. Sch.

Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). In fact, in a plea to the jurisdiction, a party may

present evidence to negate the existence of a jurisdictional fact alleged in the pleadings. Miranda,

133 S.W.3d at 227. To the extent the challenge implicates the merits of the plaintiff’s cause of

action, as here, the party asserting the plea has the burden of negating a genuine issue of material fact

as to the jurisdictional fact’s existence, the same burden a movant must meet to prevail on a

traditional summary-judgment motion. See id. at 227-28. Whether the party meets this burden is

a question of law that we review de novo. Id. at 228. In making this determination, we take as true

all evidence favorable to the pleader and indulge every reasonable inference and resolve any doubts

in the pleader’s favor. Id.4


Sovereign immunity: general concepts

                Although the historical origins of the doctrine are found in concepts of royalty that

are foreign to American constitutional systems, sovereign immunity is nonetheless deeply rooted in

the Texas common law, although its underlying rationales have evolved considerably, and it still


        4
          A somewhat different standard applies when a challenge to a jurisdictional fact’s existence
does not implicate the merits of the pleader’s cause of action. University of Tex. v. Poindexter, ___
S.W.3d ___, No. 03-04-00806CV, 2009 WL 1896071, at *3 (Tex. App.—Austin July 3, 2009,
no pet.).

                                                   6
stands as a barrier against suits and liability for money damages from the State, its agencies

and institutions, or state personnel in their official capacities. See City of Round Rock v. Whiteaker,

241 S.W.3d 609, 626 (Tex. App.—Austin 2007, pet. denied) (citing City of Galveston v. State,

217 S.W.3d 466, 468 (Tex. 2007); Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374-75

(Tex. 2006); Tooke v. City of Mexia, 197 S.W.3d 325, 331-32 (Tex. 2006); Hosner v. De Young,

1 Tex. 764, 769 (1846)). The primary contemporary justification for sovereign immunity is that

individual citizens should bear the risk and cost of what are delicately termed the government’s

“improvident acts” because it is considered beneficial to insulate the government (and the taxpayers

who fund it) from the civil liability private-sector persons would face for the same acts. Whiteaker,

241 S.W.3d at 626 (citing Reata Constr. Corp., 197 S.W.3d at 375; Tooke, 197 S.W.3d at 331-32).

                Where it applies, and unless it is waived, sovereign immunity from suit deprives

a trial court of subject-matter jurisdiction. Id. Consequently, because they seek to recover money

damages from TSBVI (which, they do not dispute, is a state institution), the Dugoshes’ suit

implicates sovereign immunity, which, unless waived, deprives the probate court of subject-matter

jurisdiction over their suit. See id.

                While sovereign immunity is a common-law doctrine that is ultimately within

the Texas Supreme Court’s province to modify or even abrogate, see Texas Dep’t of Crim. Justice

v. Miller, 51 S.W.3d 583, 592-93 (Tex. 2001) (Hecht, J., concurring), the high court has nonetheless

deferred to the legislature to decide when, if, or how to waive such immunity where it applies, in the

view that this body is better suited to weigh the public-policy considerations that bear upon those

judgments. See Whiteaker, 241 S.W.3d at 626-27 (“[T]he judiciary has deferred to the legislature



                                                  7
to decide when, if, or to what extent to waive immunity, as these decisions entail sensitive policy

judgments concerning the use of public resources and governmental functions that are the proper

domain of the legislative rather than judicial branch.”); see also City of Galveston, 271 S.W.3d

at 469 (emphasizing that waiver of immunity “depends entirely upon statute”) (quoting Dallas

County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998)).

Relatedly, it is said that there exists a “heavy presumption in favor of immunity,” City of Galveston,

271 S.W.3d at 469, and that “special rules of construction apply” to statutes that are asserted to

be waivers of immunity—“no statute should be construed to waive immunity absent ‘clear and

unambiguous language.’” State v. Oakley, 227 S.W.3d 58, 62 (Tex. 2007) (quoting Tex. Gov’t Code

Ann. § 311.034 (West 2005 & Supp. 2009).


The Dugoshes’ claims

               To establish the probate court’s subject-matter jurisdiction, the Dugoshes have

relied on one of the legislative waivers of sovereign immunity found in the tort claims act,

section 101.021(2) of the civil practice and remedies code. That provision partially waives a

“governmental unit’s”5 immunity from suit and liability 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.” Tex. Civ. Prac. & Rem. Code Ann.

§ 101.021(2) (waiving liability); see id. § 101.025 (waiving immunity from suit “to the extent of




       5
          The Dugoshes do not dispute that TSBVI is a governmental unit. See Tex. Civ. Prac.
& Rem. Code Ann. § 101.001(3)(A), (D) (West 2005) (defining “governmental unit” under tort
claims act).

                                                  8
liability created by this chapter”).6 To establish a waiver of TSBVI’s sovereign immunity under

section 101.021(2), the Dugoshes had the initial burden of alleging facts affirmatively demonstrating

that (1) a negligent or other culpable “condition or use” of (2) “tangible personal or real property”

(3) proximately caused Christopher’s death; and (4) TSBVI would be liable to them under Texas law

for these acts or omissions if it were a private person. See Dallas County Mental Health & Mental

Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998); Lowe v. Texas Tech Univ., 540 S.W.2d

297, 299 (Tex. 1976). To meet this burden, the Dugoshes attempted to assert two theories they

contend constitute the requisite “condition or use” of tangible personal property necessary to waive

immunity under section 101.021(2)—(1) the TSBVI personnel who prepared, served, or “fed”

Christopher his last meal negligently or with gross negligence gave him pieces of food much larger

than he could safely consume, given his limitations and conditions, proximately causing his choking

death; and (2) the TSBVI personnel negligently or with gross negligence administered a fatal

overdose of medication to Christopher.


       Food piece sizes

               Pleading allegations

               Regarding their first waiver theory, the Dugoshes pled the following facts:


              At the time of his death, Christopher Dugosh was a student at [TSBVI].
       Christopher was blind, deaf and profoundly impaired due to birth defects. His IQ
       was between 20 and 25. His arms and legs were deformed and he was far below the
       weight and height for his age.


       6
         See also id. §§ 101.023(a) (West 2005) (limits on State’s liability exposure), .024
(West 2005) (no waiver for exemplary damages).

                                                 9
The Dugoshes attached a waist-up photograph of Christopher to their petition.               It shows

physical features including the form and configuration of Christopher’s arms. Each of Christopher’s

arms is bent sharply upward from the elbow area, in a manner somewhat resembling a wing

on a baby bird. Each arm ends in a single thumblike digit that is bent sharply downward from

the wrist area.

                  The Dugoshes continued:


                Mr. and Mrs. Dugosh informed TSBVI, through its employees, that
       Christopher should be given small food portions because his birth defects made
       it difficult for him to digest food and he was at risk for choking. Mr. and/or
       Mrs. Dugosh demonstrated to TSBVI’s employees the size of the food Christopher
       should be given and told them that he should be given a toddler’s diet. Mr. and
       Mrs. Dugosh also provided a book to TSBVI that contained information on
       Christopher’s condition. That book also stated that Christopher was to be fed
       a toddler’s diet. TSBVI’s employees were also provided a diagram or drawing of
       the size of Christopher’s food. TSBVI’s employees caring for Christopher knew or
       should have known that Christopher’s food was to be cut up in small pieces, i.e.,
       pieces smaller than the hot dogs and broccoli served and fed to Christopher by
       Cogburn and Smith on May 19, 2005.

               Chris Cogburn and Carl Smith were responsible for Christopher’s care on
       the night that he day [sic] that he died, May 19, 2005. Cogburn and Smith were
       employees of TSBVI and were acting in the course and scope of their employment
       with TSBVI on the date of Christopher’s death. On May 19, 2005, TSBVI
       employees including Chris Cogburn and Carl Smith selected, bought, prepared,
       cooked and cut Christopher Dugosh’s food for his dinner meal and fed that food
       to Christopher to eat. Christopher had deformed arms and could not eat without
       assistance from Cogburn and Smith. Cogburn and Smith cut pieces of broccoli and
       hot dog and fed such food to Christopher Dugosh to eat. The size of the broccoli was
       1 ½ inches long and the size of the hot dog was 1 inch all around. Approximately
       four pieces of broccoli and hot dog were given to Christopher by Cogburn and Smith.
       Christopher was given french fries which were not cut into small pieces.

               Christopher choked on the broccoli, hot dogs and other food prepared, served
       and provided to him by Cogburn and Smith. The 1 ½ " pieces of broccoli and 1 inch
       all around pieces of hot dog were far larger than the portions that would be consistent

                                                 10
       with a toddler diet, were larger than the size of the pieces of food demonstrated to the
       staff of TSBVI by Mr. and/or Mrs. Dugosh and were larger than the size of the food
       on the diagram or drawing available to Cogburn and Smith on the date of
       Christopher’s death. Cogburn and Smith’s negligence in providing 1 ½" pieces of
       broccoli and 1 inch all around pieces of hot dog to Christopher was a proximate
       cause of Christopher’s choking, asphyxiation, and death.


               There is no dispute that the Dugoshes sufficiently alleged that the acts or omissions

of which they complain were committed by TSBVI personnel acting within the scope of their

employment and for which the institution, were it a private employer, would be legally responsible.

Nor is there any dispute that the food portions these employees prepared, served and/or “fed” to

Christopher were the “tangible personal property” of TSBVI under section 101.021(2).7 However,

TSBVI has challenged whether the facts the Dugoshes allege constitute a “condition or use” of the

food portions and whether they have demonstrated a sufficient causal nexus between any such

negligent or wrongful “use” or “condition” and Christopher’s death by choking. Before turning to

these legal questions, we must first take into account the jurisdictional evidence that the

parties presented to the probate court. See Miranda, 133 S.W.3d at 227; Bland Indep. Sch. Dist.,

34 S.W.3d at 555.




       7
         See University of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 178 (Tex. 1994)
(“Although ‘tangible’ is not defined in the Tort Claims Act, there can be little doubt that tangible
personal property refers to something that has a corporeal, concrete, and palpable existence.”).

                                                 11
               Jurisdictional evidence

                       How Christopher was “fed”

               Although TSBVI did not dispute that its personnel had cooked, prepared, cut into

pieces, and served the food on which Christopher later choked, TSBVI presented evidence in an

attempt to negate any allegation that its personnel had placed food either directly in Christopher’s

mouth or onto his eating utensil. TSBVI’s evidence included documents reflecting the status

of Christopher’s life skills at various junctures during his time at TSBVI; an excerpt from the

deposition of Kerim Pierce, one of the TSBVI employees involved with Christopher’s care; the

medical examiner’s autopsy report;8 and an affidavit from Monte Chambers, R.N., the director of

TSBVI’s Health Center. Chambers’s affidavit attached medical-history forms from Christopher’s

personal physician describing Christopher’s conditions and impairments—and including the warning

that Christopher was at risk of “choking” and required a “toddler” diet with “no milk, beef,

small portions.” The Dugoshes, in turn, presented, in addition to the aforementioned photograph of

Christopher,9 live testimony from Christopher’s father, appellee Richard Dugosh, and Carl Smith

and Chris Cogburn, the TSBVI personnel implicated by the Dugoshes’ pleading allegations. TSBVI

also elicited important testimony from Smith and Cogburn on cross-examination. Both sides were

also permitted to read some deposition excerpts into the record.




       8
           The report was included in medical records that had been subpoenaed from
Christopher’s psychiatrist. As discussed below, the copy of the report in evidence included some
handwritten notes.
       9
         The Dugoshes also introduced a photograph of the adapted spoon Christopher used
at TSBVI, discussed below.

                                                12
               Smith and Cogburn acknowledged that, as the Dugoshes had alleged, they were

the TSBVI personnel who had been responsible for preparing and serving Christopher his last

meal and that this meal had consisted of broccoli, a hot dog, and french fries. Smith, who had been

Christopher’s “primary residence instructor,” admitted that he had prepared the hot dog and broken

it into four pieces for Christopher to consume. He further stated that either he or Cogburn had

similarly broken the french fries into pieces. Cogburn, in turn, admitted that he had prepared the

broccoli and cut it into pieces, although he could not remember the number of pieces. Smith further

admitted that because of Christopher’s limitations, Christopher was dependent on them to prepare,

cut, and serve his food, as he “had no way of cutting his own food himself and feeding it to himself.”

Smith and Cogburn likewise acknowledged that they had remained in close proximity to Christopher

while he was eating.

               TSBVI presented evidence that by the time of Christopher’s last meal, he had

become proficient in using an adapted spoon to scoop up food and move it to his mouth. The

Dugoshes introduced a photograph of the spoon into evidence. The photograph shows a spoonlike

device with a strap that was used to attach it to Christopher’s arm. In his deposition, Kerim Pierce

recounted that Christopher’s spoon had “sort of revolutionized his eating because it allowed him to

be independent in scooping his food and eating it, whereas previously . . . he had been fed mostly.”

TSBVI also introduced two documents on its letterhead titled, “Residential Annual Report of Present

Competencies.” Each document contains a summary of Christopher’s “strengths” and “needs” with

respect to “domestic” and “recreational/leisure” “basic skills” and identifies various “priority areas”

or goals for Christopher’s further development in these areas. The first of these documents, dated



                                                  13
February 26, 2004, identifies among Christopher’s “domestic” skills strengths, “Chris has learned

to eat very effectively with an adapted spoon, and can use an adapted cup to drink.” The second,

dated January 10, 2005, states, “Chris has learned to eat very neatly with an adapted spoon, and does

so with no assistance except to affix the spoon to his arm.” Each documents contains both Richard

and Mel Dugosh’s signatures, along with those of various other TSBVI educators and counselors,

verifying that each had been present at a meeting to discuss the “proceedings and recommendations,”

understood what had been discussed, and agreed with the proceedings and recommendations.

                Cogburn squarely denied that he ever assisted Christopher in getting food into

his mouth. TSBVI’s counsel was also permitted to read into the record an excerpt from Smith’s

deposition in which Smith similarly denied that anyone helped Christopher feed himself during his

last meal.10 However, Cogburn’s testimony was inconsistent and somewhat equivocal as to whether

he ever assisted Christopher in getting food onto his spoon. Initially, when asked by the Dugoshes’

counsel whether he helped Christopher with getting the hot dog or broccoli into his mouth, Cogburn

admitted that “I help him with the spoon” by “putting the spoon on the plate and helping him get the

food on it.” In response to further questioning, Cogburn observed that food would sometimes fall

off Christopher’s spoon while he was trying to eat it. He was then asked by the Dugoshes’ counsel

whether he would help Christopher get the food back on the spoon in that situation. Cogburn


       10
            Smith testified:

       Q:       [by the Dugoshes’ counsel] Did Chris feed himself that night with his
                spoon or did someone help him?

       A:       He fed himself.


                                                 14
responded, “I don’t recall if I—if that was something I would do.” Later, the Dugoshes’ counsel

returned to that question, and Cogburn persisted in denying recollection of what he would do when

food fell off of Christopher’s spoon. Then, during cross-examination by TSBVI’s counsel, Cogburn

divulged that if “the hot dog falls off onto the table,” he would “put it back on the plate,” but again

claimed that he did not recall what he would do when food fell off Christopher’s spoon. However,

with continued questioning by TSBVI’s counsel, Cogburn began repeatedly denying that he placed

food either in Christopher’s mouth or on his spoon. At that juncture, Cogburn also insisted that the

lack of recollection he had previously acknowledged concerned whether, when returning dropped

food to Christopher’s plate, he might have placed the food onto Christopher’s spoon if the spoon was

positioned there.11


       11
            The following exchange between Cogburn and TSBVI’s counsel is illustrative:

       Q:       Did you ever lift food from Christopher’s plate and put it into his mouth?

       A:       No. What I do is I—I make sure the pieces are cut and accessible for the
                kids.

       Q:       Okay. So you prepared the food?

       A:       I prepare the food.

       Q:       And you put it in the plate?

       A:       And I put it in the plate.

       Q:       But you don’t—

       A:       And the if he—the hot dog falls off on to the table I put it back on to the
                plate.

       Q:       On the plate, okay?

                                                  15
A:   Yeah.

Q:   But not on to the spoon?

A:   I don’t recall—I don’t—that’s—that’s a—

Q:   Is that what you’re saying you don’t recall about?

A:   That’s what I’m saying I don’t recall. And I don’t—I don’t do that. I don’t
     —I don’t put the food on the spoon and I don’t lift it to the kids’ mouth.

Q:   Okay.

A:   My—my not recalling is the—putting it on to the plate when there is a spoon
     on the plate. That’s a gray area, putting on the plate.

Q:   You recall maybe—and I—and I’m not trying to feed you words, I’m trying
     to figure out what it is that you don’t recall. And the Court—the Court needs
     to know this too.

A:   Yeah. I don’t recall––I don’t put the food on the spoon and I don’t feed the
     kids.

Q:   Okay.

A:   What I don’t recall is—I mean, I put the food on the plate and—. . .

A:   I think I’m making this more complicated because I don’t put the food on the
     spoon. What made me say I don’t recall is that the—the spoon is on the
     plate, I put the food on the plate, it gets on the spoon. It’s not—

Q:   I understand.

A:   If that makes sense.

Q:   I understand. So if you — if a piece of food had gotten out of the plate and
     you—like on the table and you put it back on the plate—

A:   Uh-huh.


                                      16
               As for Richard Dugosh, he testified that during the eighteen years when he and Mel

were Christopher’s primary caregivers, Christopher had required continual monitoring and assistance

when eating, even when using an adaptive spoon, and “wouldn’t be able to feed himself.” Richard

elaborated that because of the difficulties Christopher encountered in using his arms, food would

roll or fall off his spoon. Consequently, Richard recounted, a caregiver would need to remain with

Christopher while he ate and put food back on the spoon when it fell off. However, while Richard

indicted that it would sometimes be necessary to administer medication to Christopher by spooning

it into his mouth, as he “would spit it out” otherwise, Richard did not testify that caregivers would

place food directly into his mouth.

               Richard further asserted, without citing specific factual support, that the extent

to which Christopher required assistance when eating remained unchanged after Christopher

moved to TSBVI. During cross-examination, however, Richard conceded that he had no personal

knowledge of how Christopher ate his meal on the evening he died. Richard also acknowledged

signing the two previously discussed TSBVI “Residential Annual Reports of Present Competencies.”



       Q:      —if the spoon might have been in the—in the plate or on the plate you might
               have actually put it on the spoon in that circumstance. It’s not that you would
               have deliberately put it on the spoon. Is that what you were saying?

       A:      Yeah. That’s what I don’t recall too, it’s not—I don’t—I’m not—

       Q:      You don’t recall that with specificity?

       A:      I don’t recall the specificity and the gradation of the spoon—the spoon is like
               this and the hot dog rolls on the spoon. It’s just that I don’t recall. That’s—I
               don’t put the food on the spoon and I don’t assist a kid with delivering the
               food to his or her mouth. I don’t—


                                                 17
                 In addition, the Dugoshes’ counsel was permitted to read into the record an excerpt

from the deposition of Mary Lou Rink, the TSBVI’s dietician at the time of Christopher’s death, to

the effect that Christopher’s conditions necessitated that someone remain with him while he ate12 and

an excerpt from Cogburn’s deposition in which he stated that, after he and Smith prepared the food,

“We fed Chris.”

                 On this record, we conclude that TSBVI has met its burden of conclusively negating

any allegation that Smith or Cogburn placed food directly into Christopher’s mouth with an eating

utensil or otherwise. See Miranda, 133 S.W.3d at 227-28. TSBVI presented evidence that neither

Smith nor Cogburn “fed” Christopher in this manner, and the Dugoshes presented no evidence

that they did. The conclusion that Smith or Cogburn “fed” Christopher in some manner, without

more, is insufficient to raise a fact issue as to whether they did so by placing food in his mouth. See

id.; Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam). However, we

conclude—especially in light of Cogburn’s testimony—that TSBVI has not met its burden to


       12
            Rink testified:

        Q:       Somebody would be there with him [Christopher]?

        A:       Uh-huh.

        Q:       Why would they be there with him?

        A:       Well, a toddler diet, somebody would need to be feeding, you know, be
                 sitting there with him while he ate.

        Q:       Why would somebody need to be there with him while he ate?

        A:       Because he couldn’t eat by himself.


                                                  18
conclusively negate the allegation that Cogburn “fed” Christopher by placing food on his adapted

spoon and helping him put food back on the spoon when it fell off. Consequently, we presume the

truth of that allegation—along with the Dugoshes’ unchallenged allegations that Smith and Cogburn

prepared Christopher’s meal and cut the broccoli and hot dog into the sized pieces described in the

medical examiner’s report—when analyzing whether the Dugoshes have asserted the required

“condition or use” of tangible personal property under section 101.021(B). See id.


                      Causal nexus between the food and Christopher’s death

               TSBVI presented evidence in an attempt to establish that several minutes

passed between the time that Christopher finished eating and when he first began choking. The

medical examiner’s report reflects a contemporaneous account from Smith that Christopher ate

dinner at approximately 4:50 p.m., was playing in his room at approximately 5:05 p.m., and then,

at approximately 5:26 p.m., ran down the hallway gasping for air and collapsed in front of Smith.

Cogburn similarly testified that the choking event occurred 15-20 minutes after Christopher had

finished eating. According to Cogburn, “When Chris finished eating he went into his room and I

cleaned his plate and the—the table and I went into the common area and was talking and watching

TV with the kids and Kerim and Mike Beninger [another TSBVI staffer]. And then Chris came out

and then went—he came into the common area and then went back into his room and then came

back out again a couple minutes later and that’s when he looked—he looked like he was having

trouble and that’s when Kerim and Mike went and assisted him.” Cogburn indicated that there was

no question Christopher had finished his meal and swallowed all of his food before going to his

room. The Dugoshes did not present evidence to controvert that at least fifteen to twenty minutes

                                                19
elapsed between the time Christopher finished his meal and when he began showing signs of

choking and that Christopher had even been playing in his room for approximately 15-20 minutes

in the meantime.

               On the other hand, Cogburn acknowledged that Christopher had regurgitated some

of his food before he choked and had regurgitated “just a dribble” while still eating. As previously

noted, the medical examiner later found “poorly chewed” portions of food material—“including a

portion of the end of a hot dog measuring 1 inch all around . . . pieces of broccoli measuring up to

1-1/2 inches in dimension as well as similar pieces of dumplings”—“packed” in both Christopher’s

upper airway and his esophagus. It was “asphyxia due to choking on bolus of food,” with his

Cornelia de Lange syndrome a “contributing condition,” that the medical examiner concluded caused

Christopher’s death.


                       Cutting-up of the food

               Finally, because it becomes significant to our analysis below, we note that TSBVI

presented uncontroverted evidence that either Smith or Cogburn broke the french fries into pieces

before serving them to Christopher. While the Dugoshes had pled that “Cogburn and Smith cut

pieces of broccoli and hot dog” (which the jurisdictional evidence confirmed), they also had alleged

that “Christopher was given french fries which were not cut into small pieces.” The latter allegation

is negated by the uncontroverted evidence that Smith or Cogburn did, in fact, break the french fries

into pieces before serving them to Christopher. See Miranda, 133 S.W.3d at 227-28.




                                                 20
                 Analysis

                 We now consider whether the facts pled by the Dugoshes and not conclusively

negated by TSBVI invoked the probate court’s jurisdiction by establishing a “condition or use” of

tangible personal property attributable to TSBVI that proximately caused Christopher’s death. See

Miranda, 133 S.W.3d at 226-28.


                        “Use” of the food?

                 The legislature has never defined the term “use” under section 101.021(2),

and Texas courts have been vexed for decades by the term’s vagueness and arbitrary operation. See,

e.g., University of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 178 (Tex. 1994)

(summarizing the supreme court’s “long and arduous history” of struggling to construe

section 101.021(2) and of requesting the legislature to clarify the provision); see also Miller,

51 S.W.3d at 589-93 (Hecht, J., concurring) (concluding that “it is simply impossible for the courts

to meaningfully construe and consistently apply the use-of-property standard in the Tort Claims Act”

and attributing the problem principally to the absence of any discernable guiding legislative policy

regarding when or why sovereign immunity should be waived in a particular case). Despite these

challenges, the supreme court over the decades has enunciated principles that give us some

guidance here.

                 Lacking a legislative definition of “use,” the supreme court has applied the ordinary

meaning of the term—“to put or bring into action or service; to employ for or apply to a given




                                                  21
purpose.” San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 & n.10 (Tex. 2004).13 The court

has further reasoned from the context of the legislature’s use of “use” in section 101.021(2) that the

governmental unit whose conduct is challenged must itself be the “user” of the property to waive

immunity. Id. at 246.

               As a general rule, a governmental unit’s act of furnishing tangible personal property

to a person for him to use is not considered a “use” of the property by the unit that can waive

immunity under section 101.021(2). Two stark illustrations of this rule’s recent application by

the Texas Supreme Court are provided in Dallas County v. Posey, 290 S.W.3d 869, 870 (Tex. 2009)

(per curiam), and Cowan, 128 S.W.3d at 245-47. Both Posey and Cowan involved suits against

governmental units arising from suicides by patients or inmates in unit-owned facilities. In both

cases, the individual used personal property furnished or provided by the governmental unit to kill

himself. Posey, 290 S.W.3d at 870 (inmate hung himself with ligature he devised from frayed

receiver cord of telephone in his cell); Cowan, 128 S.W.3d at 245-47 (mental hospital patient hung

himself with suspenders and walker that hospital had returned to him). In each case, the supreme

court held that the governmental unit did not, by furnishing or providing the property to the decedent,

“use” the property so as to come within section 101.021(2)’s waiver of immunity. See Posey,

290 S.W.3d at 870 (no “use” of telephone because “the county did no more than place Posey in a cell

with a corded telephone, which he used to commit suicide”); Cowan, 128 S.W.3d at 245-47 (“A




       13
           Accord City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008) (when
construing statutes, we rely on the plain meaning of the text, unless a different meaning is
supplied by legislative definition or is apparent from context, or unless such a construction leads to
absurd results).

                                                  22
governmental unit does not ‘use’ personal property merely by allowing someone else to use it

and nothing more. . . . By providing Cowan his walker and suspenders, the Hospital did not ‘use’

them within the meaning of section 101.021(2).”). This was so, significantly, even though the

plaintiffs in both Posey and Cowan had alleged and/or presented evidence that the decedent had

presented a suicide risk that the governmental unit was negligent in ignoring when furnishing the

decedent the property. Posey, 290 S.W.3d at 870-72; Cowan, 128 S.W.3d at 245.

               On the other hand, the supreme court has continued to recognize what it now terms

a narrow exception to the rule that a governmental unit’s act of furnishing personal property to an

individual to use is not a “use” of that property by the government—immunity is waived under

section 101.021(2) for “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 safety component led to the

plaintiff’s injuries.” Cowan, 128 S.W.3d at 247 (quoting Kerrville State Hosp. v. Clark, 923 S.W.2d

582, 585 (Tex. 1996)). This exception derives from an earlier line of cases in which the

supreme court had held that governmental units’ negligent provision of defective or deficient

protective equipment was a “condition or use” (it did not specify whether it was one, the other,

or both) of personal property that waived immunity under section 101.021(2). Robinson v. Central

Tex. MHMR Ctr., 780 S.W.2d 169, 169, 171 (Tex. 1989) (MHMR center’s provision of swim attire

lacking life preserver to epileptic child prone to seizures constituted a “condition or use” that waived

immunity); Lowe, 540 S.W.3d at 298-300 (university’s provision of protective gear to football player

that did not include special protection for his injured knee constituted a “condition or use” that

waived immunity); Overton Mem’l Hosp. v. McGuire, 518 S.W.2d 528, 528-29 (Tex. 1975)



                                                  23
(per curiam) (hospital’s provision of bed for patient that was not equipped with side rails was a

“condition or use” of property that waived immunity). Although the literal language and reasoning

of these decisions were arguably broader, the supreme court has subsequently clarified that “the

precedential value of [Robinson, Lowe, and Overton] is . . . 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.” Clark, 923 S.W.2d at 585 (also

terming the cases “perhaps the outer bounds of what we have defined as use of tangible

personal property.”).

               Underlying the supreme court’s contemporary view of these decisions is its

reasoning that whatever “use” may mean under section 101.021(2), it cannot mean a failure to use

or “non-use” of personal property. See id. A related concern is that “use” of personal property under

section 101.021(2) cannot mean every form of negligence committed by a governmental unit that

happens to involve personal property in some way, as this would expand what the legislature plainly

intended as a limited waiver of immunity into effectively a general waiver. See id. at 585-86 (“There

cannot be a waiver of sovereign immunity in every case in which medical treatment is provided in

a public facility. . . . 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 nullity.”) (citing

Lowe, 540 S.W.2d at 302 (Greenhill, C.J., concurring) (“It is difficult to imagine a tort case which

does not involve the use, or nonuse, of some item of real or personal property; and to me, if there is

a waiver in all cases where some item of personal property is either used or not used, there is

virtually an unrestricted waiver of immunity.”)). Driven by these concerns, the supreme court has



                                                 24
sought to distinguish between a governmental unit’s affirmative act of furnishing or providing

personal property that completely lacks an “integral safety component,” which it continues to regard

as waiving immunity under Robinson, Lowe, and Overton, from a governmental unit’s failure to

provide personal property, or provide better, safer, alternative personal property, which it regards as

a non-use of property that does not waive immunity. See Texas A&M Univ. v. Bishop, 156 S.W.3d

580, 583-84 (Tex. 2005) (allegation that university provided student actors knife without adequate

“stab pad” did not assert “use” of the knife by university or complete absence of integral safety

component, but a “non-use” by failing to provide a more effective safety feature); Clark, 923 S.W.2d

at 585 (mental hospital’s prescribing oral medication alleged to be less effective than

alternative injectable treatment complained of a non-use of property, a failure to provide a more

effective treatment).

               TSBVI equates this case with Posey and Cowan, urging that it did no more than

provide food for Christopher’s use, but itself made no “use” of the food. It further asserts that there

are no allegations the food was “defective” or lacking in any “integral safety component” and that,

to the extent the size of the food pieces could be considered a “safety component,” the Dugoshes

complain not of a complete absence of that component but only of TSBVI’s failure to provide a

better alternative—Smith and Cogburn cut or broke the food into pieces, but allegedly were negligent

in failing to provide smaller, safer pieces. Thus, TSBVI concludes, the Dugoshes’ claims would

be governed by Bishop and Clark, and would constitute claims for non-use rather than use of

personal property. Bishop, 156 S.W.3d 583-84; Clark, 923 S.W.2d at 585.




                                                  25
               In response, the Dugoshes attempt to distinguish Posey and Cowan by suggesting

that Cogburn and Smith had greater involvement with the food than did the governmental units in

those cases. They urge that “Cogburn and Smith selected, purchased, cooked, prepared and cut

the oversized hot dogs and broccoli.” They further assert that because “Christopher’s arms were

deformed,” TSBVI “had to feed the broccoli and hot dogs to Christopher” and assist him in

consuming it. As we have previously explained, TSBVI negated any allegation that TSBVI

employees placed the food in Christopher’s mouth, but still before us are the Dugoshes’ allegations

that TSBVI cooked, prepared, cut and served the food and that Cogburn assisted Christopher in

getting the food onto his adapted spoon. These are allegations, the Dugoshes reason, that “the

oversized broccoli and hot dogs were ‘put into service’ and employed for a ‘given purpose’ by

employees of TSBVI.” They additionally suggest that this case is governed by Overton, the “integral

safety component” case that involved a hospital patient being placed into a bed lacking safety rails.

See Overton Mem’l Hosp., 518 S.W.2d at 528-29.

               Guided by the Texas Supreme Court’s recent jurisprudence delineating the meaning

of “use” of tangible personal property under section 101.021(2), we must conclude that the Dugoshes

assert claims of TSBVI’s ordinary negligence or non-use of personal property, not a “use” of

property for which section 101.021(2) waives immunity. While TSBVI cooked, cut, and prepared

the food and even helped Christopher get it onto his spoon, it remains that it was Christopher, not

TSBVI, that ultimately put the food to its intended use by eating it. See Bishop, 156 S.W.3d at 583-

84 (although faculty advisers allowed use of real knife in student theatrical production, the advisors

“did not themselves ‘put or bring [the knife] into action or service’ or ‘employ [the knife] for or



                                                 26
apply [it] to a given purpose,’ as we have said the term ‘use’ intends.”) (modification in original).

Alternatively, even if it could be said that Smith and Cogburn “used” the food in some sense by

preparing, cutting or breaking it into pieces, and giving it to Christopher, such “uses” in themselves

would lack the requisite causal nexus to Christopher’s choking and death. Everything turns,

under the Dugoshes’ theory of liability and waiver, on the fact that Christopher ate the food. This

is a use of the food by Christopher, not a use by TSBVI. To this extent, this case is analogous to

Posey and Cowan.

               We recognize that under the Dugoshes’ pleadings and the jurisdictional evidence, as

viewed through the prism of our standard of review, Christopher was highly if not totally dependent

upon Smith and Cogburn for the food that he ate and had mental, visual, and auditory impairments

that would have reduced his capacity to ascertain the risk of eating the food he was given. However,

we must ultimately conclude that Posey and Cowan are not distinguishable on that basis. In both

Posey and Cowan, the decedent was vulnerable to suicidal impulses, yet the supreme court held that

the government unit’s act of furnishing him with the very property he used to kill himself was not

a “use” of that property and that it was instead the decedent himself who had “used” the property

to fatal ends. Posey, 290 S.W.3d at 870-72; Cowan, 128 S.W.3d at 245. Christopher was in an

identical position to the decedents in Posey and Cowan as far as the relevant “use” of tangible

personal property is concerned.

               To the extent the Dugoshes are attempting to complain of the absence of an “integral

safety component” in the food Christopher was given (i.e., the absence of pieces sufficiently

small for Christopher to consume safely), we agree with TSBVI that this complaint would be



                                                 27
governed by Bishop and Clark and would not fall within the Overton line of cases. Assuming the

size of the food pieces is a “safety component” for purposes of this rule, the Dugoshes complain

(once the jurisdictional evidence is considered) not of the complete absence of such a component

(i.e., that Smith and Cogburn failed to cut or break the broccoli, hot dogs, or french fries into pieces

at all), but of TSBVI’s failure to use a safer or better alternative component (i.e., giving Christopher

smaller, safer pieces and/or using kitchen utensils to cut the pieces smaller). See Bishop, 156 S.W.3d

583-84; Clark, 923 S.W.2d at 585.

                The real substance of the Dugoshes’ complaint is that TSBVI negligently failed to

instruct and supervise Smith and Cogburn in preparing Christopher’s food and/or that Smith

and Cogburn negligently failed to carry out those instructions, not that TSBVI “used” the food in the

sense required to waive immunity under section 101.021(2). See Bishop, 156 S.W.3d 583. The mere

fact that these alleged acts of negligence involved or concerned the tangible personal property of

food is not enough to waive TSBVI’s immunity under section 101.021(2), and to hold otherwise

“would be tantamount to abolishing [sovereign] immunity, contrary to the limited waiver the

Legislature clearly intended.” Id. (quoting Clark, 923 S.W.2d at 585).

                In urging that TSBVI “used” the food in some respect relevant to waiver

under section 101.021(2), the Dugoshes also rely on a decision of the Texarkana Court of Appeals,

Texas State Technical College v. Beavers, 218 S.W.3d 258 (Tex. App.—Texarkana 2007, no pet.).

In Beavers, a student in a diesel engine testing and repair course was injured while using a hydraulic

hoist as part of his course instruction. He sued the college for negligence and sought to establish

waiver of the college’s sovereign immunity by alleging his injuries had been proximately caused



                                                  28
by the college’s “use” of the hoist. While holding that the student’s claims did not fall within

the complete absence of an “integral safety component” exception for personal property furnished

to an individual to use, id. at 263-65, the Texarkana court nonetheless concluded that the college had

“used” the hoist through the manner in which it had utilized the hoist as part of the student’s

course instruction. See id. at 265-67. We do not believe these facts involving a college’s use of

an instructional aid in a class are analogous to TSBVI’s provision of food for Christopher to eat.

Consequently, we are not persuaded that Beavers counsels a departure from our analysis

and conclusion that the Dugoshes have not asserted claims within the use-of-property waiver of

section 101.021(2).

               We hold that the Dugoshes have not asserted claims that Christopher’s death was

proximately caused by TSBVI’s negligent “use” of tangible personal property so as to come within

section 101.021(2)’s waiver of sovereign immunity.


                       “Condition” of the food?

               Even if they have not asserted a claim of negligent “use” of tangible

personal property, the Dugoshes urge, they have nonetheless complained of a “condition” of property

for which immunity is waived under section 101.021(2)—the food pieces that Christopher was

served or “fed” were too large for him to consume safely. As with “use,” the legislature did not

define what a “condition” of property means under section 101.021(B), so Texas courts have looked

to the ordinary meaning of the term—“either an intentional or an inadvertent state of being.”

Sparkman v. Maxwell, 519 S.W.2d 852, 858 (Tex. 1975). With respect to negligence clams

concerning real property, it is established that section 101.021(2) incorporates premises-liability

                                                  29
concepts and limitations. See City of Austin v. Leggett, 257 S.W.3d 456, 462-63 (Tex. App.—Austin

2008, pet. denied). Regarding “conditions” of personal property for which section 101.021(2)

waives immunity, the Texas Supreme Court has stated that “condition” implies that the property is

“defective or inadequate,” Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex. 1983), and that

such defect or inadequacy “pose[s] a hazard in the intended and ordinary use of the property.”

Posey, 290 S.W.3d at 872. With this, the supreme court has emphasized the requirement of a causal

nexus between the “condition” and the injury made the basis for suit. See id.; Bossley, 968 S.W.2d

at 343. This nexus requires “more than the mere involvement of property; rather, the condition must

actually have caused the injury.” Posey, 290 S.W.3d at 872.

               As it did with “use” of tangible personal property section 101.021(2), Posey provides

a recent illustration of the supreme court’s view regarding “conditions” of tangible personal property

that can waive immunity under section 101.021(2). The decedent in Posey was placed in a county-

jail holding cell containing a land-line telephone whose handheld receiver was connected to the

phone by a cord. The cord had exposed wires. The decedent killed himself by fashioning a ligature

by running the telephone receiver through the exposed wires. See id. at 870-72. In addition to

alleging that the county had “used” the phone by giving it to the decedent, the deceased’s parents

asserted that the exposed wires were a “condition” of the phone that had proximately caused

the deceased’s death. See id. In rejecting that theory as a matter of law, the supreme court

acknowledged that the exposed wires might have been a “condition”—“a hazard in the intended and

ordinary use of the property”—inasmuch as they “posed an electrical hazard to an ordinary user of

the telephone.” Id. at 872. Nonetheless, the court reasoned, the required causal nexus between that



                                                 30
condition and the death was lacking—“the exposed wires here did not cause the injury; they instead

constituted no more than a condition of the property that was then used by Posey to form a ligature

for suicide.” Id.

                As TSBVI points out, the Dugoshes do not allege that there was anything hazardous

or defective about the broccoli, hot dog, and french fries with respect to their ordinary and intended

use as food generally. Instead, their complaint is that TSBVI personnel failed to furnish Christopher

smaller, safer pieces of this food (or to cut or break the food into smaller pieces). The Dugoshes rely

on the ordinary meaning of “condition” (a particular mode or state of being). By alleging that “[t]he

portions of hot dogs and broccoli fed to Christopher by Cogburn and Smith were too large” and that

this caused Christopher to choke, the Dugoshes reason, they “have alleged a ‘condition’ of tangible

personal property that was a proximate cause of Christopher’s death.”

                We have concluded above that the Dugoshes’ claims concern non-use of tangible

personal property or other negligent acts of TSBVI that are beyond the scope of section 101.021(2)’s

waiver. See Bishop, 156 S.W.3d 583-84; Clark, 923 S.W.2d at 585. As we understand the

Texas Supreme Court’s jurisprudence, we do not think that the Dugoshes can establish a waiver

under section 101.021(2) merely by characterizing their claims of non-use of personal property

(failure to use a safer alternative of smaller food pieces or to use kitchen utensils to cut the food into

smaller pieces) or other general negligence as a complaint about the “condition” of the food portion

sizes TSBVI did provide. To so hold would imply that every non-use case involving allegations of

a governmental unit’s negligence in failing to provide a safer alternative could establish waiver if

only the plaintiff would couch his complaint in terms of the “condition” of the less-safe property the



                                                   31
unit did provide. We do not believe the principles governing waiver of sovereign immunity under

section 101.021(2) work this way.

               In cases where a plaintiff seeks to establish waiver of immunity under

section 101.021(2) based on a governmental unit’s furnishing of tangible personal property for

another person to use, the Texas Supreme Court has appeared to require the complete absence of an

“integral safety component” to waive immunity under either the “use” and “condition” prongs of

the statute. The cases giving rise to the “integral safety component” exception do not distinguish

between “condition or use.” See Robinson, 780 S.W.2d at 169-71; Lowe, 540 S.W.3d at 298-300;

Overton Mem’l Hosp., 518 S.W.2d at 528-29. Likewise, in its more recent cases, the supreme court

has characterized the “integral safety component” requirement as part of the “condition” prong,

or both the “condition” and “use” prongs. See Cowan, 128 S.W.3d at 245 (“Respondents do not

complain of the condition of Cowan’s walker and suspenders. They do not assert, for example, that

the walker and suspenders were defective or that they lacked some safety feature.”), 247 (“As already

noted, respondents make no such claim [of an absent ‘integral safety component’] in this case.”);

Texas Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) (“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.”) (emphasis added). Several of our

sister courts, at least in recent years, have agreed with our assessment. See Beavers, 218 S.W.3d

at 264 n.1 (“Whether the requirement is analyzed under the ‘condition’ or ‘use’ section of

[section 101.021(2)], the Texas Supreme Court has made it clear that, unless the governmental



                                                 32
agency has ‘used’ tangible personal property in some other manner so as to waive immunity,

merely supplying the property for another’s use, without more, does not waive immunity unless

the supplied property is completely lacking an integral safety component.”); see also University of

N. Tex. v. Harvey, 124 S.W.3d 216, 222-24 (Tex. App.—Fort Worth 2003, pet. denied) (applying

the “integral safety component” requirement in determining whether immunity was waived under

the “condition” prong of section 101.021(2)).

               Guided by these decisions, we conclude that regardless whether the Dugoshes purport

to rely on the “use” or “condition” prong of section 101.021, sovereign immunity is not waived for

their complaint because it concerns tangible personal property furnished to Christopher for his use,

not property that TSBVI used, and does not assert the complete absence of an “integral safety

component” in that property, but only non-use of property or other acts of negligence by TSBVI for

which section 101.021(2) does not waive immunity.

               In contending otherwise, the Dugoshes rely on a decision from the San Antonio Court

of Appeals that has some factual similarities to the present case. See Webb County v. Sandoval,

88 S.W.3d 290, 292-95 (Tex. App.—San Antonio 2002, no pet.) (Sandoval I). Sandoval I arose

after a four-year-old child choked to death on chicken nuggets that had been served to her by a

county-run Head Start program. Her parents sued the county seeking damages. The San Antonio

Court of Appeals held that the parents sufficiently alleged the requisite “condition” under

section 101.021(2) by pleading that the chicken nuggets were “overcooked, too hard and too large,”

and that this proximately caused the child to choke to death. Id. at 292-95.




                                                33
                As TSBVI points out, no Texas court to date has followed Sandoval for the

proposition that alleging food is cooked to be “too hard” or “too large” and furnished to another

person to use or consume, causing them to choke, alone states a claim for a “condition” of tangible

personal property that waives sovereign immunity under section 101.021(2). And, assuming without

deciding that Sandoval I correctly reflects Texas law, there are factual distinctions between it and the

present case. Unlike here, there is no indication in Sandoval I that there were allegations or evidence

Head Start staff had cut the chicken nuggets into smaller pieces. See id. at 292-95; see also Webb

County v. Sandoval, 126 S.W.3d 264, 265-67 (Tex. App.—San Antonio 2003, no pet.) (Sandoval

II) (in opinion following further proceedings after Sandoval I, citing jurisdictional evidence that

nuggets had been prepared and served “in a manner consistent with the packaging instructions”).

Thus, as far as the size of the nuggets is concerned, Sandoval I would arguably fall within the

complete-absence-of-an-“integral safety component” line of cases. We also note that the asserted

“condition” of the chicken nuggets in Sandoval I was one that would tend to create a choking hazard

for persons generally and, unlike here, was not solely a function of the particular decedent’s inability

to consume them safely. Although the decedent was a four-year-old child—an age at which a person

is not always prone to chew her food thoroughly and swallow it safely—the San Antonio court did

not appear to view the child’s age or related limitations as relevant to its analysis of the asserted

“condition” and its causal nexus to the child’s death.14 Here, as we have noted, the Dugoshes do not


       14
          This is especially apparent in the court’s opinion following further proceedings. Following
Sandoval I, the county, resuming its efforts in the trial court, presented jurisdictional evidence in an
attempt to negate the causal nexus between the “condition” of the chicken nuggets and the child’s
death. Webb County v. Sandoval, 126 S.W.3d 264, 266-67 (Tex. App.—San Antonio 2003, no pet.)
(Sandoval II). This included affidavit testimony from Head Start personnel to the effect that nothing

                                                  34
allege that the food Christopher was served was hazardous to persons generally, only that TSBVI

was negligent in failing to give him smaller, safer pieces of the food. In sum, we are not persuaded

that Sandoval changes our analysis.

               We hold that the Dugoshes have not asserted claims that Christopher’s death was

proximately caused by a “condition” of tangible personal property TSBVI furnished him, so as to

waive immunity under section 101.021(2).


       Drug overdose

               Pleading allegations

               In addition to their allegations regarding the size of food pieces Christopher was

furnished on the evening he died, the Dugoshes pled that Christopher’s death was also caused by an

overdose (i.e., a misuse) of medication administered by TSBVI staff:




about the chicken nuggets had been unusual or would have reasonably tended to cause a person
to choke. The county also presented affidavit testimony from a paramedic who had treated the child
at the scene, who recounted that he observed the food that was removed from the child’s trachea and
saw a “piece of chicken approximately two inches in length that seemed to be partially chewed.”
Id. at 267. Based on his observations, the paramedic opined that “it was obvious that the patient
had not chewed the piece of chicken sufficiently in order to swallow it properly.” Id. Based on this
uncontroverted evidence, the San Antonio court concluded that while “[t]he chicken nugget blocked
[the child’s] trachea, . . . it was the failure to sufficiently chew the chicken nugget that caused her
injuries.” Id. Consequently, the court reasoned, “the evidence, at best, suggests Webb County did
no more than furnish [the child] with the condition or object (the chicken nugget) which made her
injuries possible” and, therefore, negated the casual nexus required to waive sovereign immunity
under section 101.021(2). Id.

       Again, the San Antonio court reached this conclusion despite the fact that the decedent was
a four-year-old child. And arguably the same causation analysis would apply here—especially
where there was undisputed evidence that Christopher had actually swallowed his food fifteen to
twenty minutes before he began choking.

                                                  35
       [A] medication (Wellbutrin) was provided to Christopher by TSBVI on the date of
       Christopher’s death. Cogburn, Smith and/or other employees of TSBVI negligently
       withheld Christopher’s prescribed medication for the purpose of giving Christopher
       more than the prescribed dose of such medication at times when Christopher’s
       behavior was difficult to control or presented problems for TSBVI’s employees.
       Christopher had a toxic level of Wellbutrin in his blood stream on the date of his
       death. The negligence and/or gross negligence of Cogburn, Smith and/or non-
       medical employees of TSBVI in withholding prescribed medications and then
       providing Christopher a toxic dosage of Wellbutrin on the date of his death was a
       proximate cause of Christopher’s death.


               Jurisdictional evidence

               TSBVI presented evidence in an attempt to negate the Dugoshes’ allegation that

Christopher was administered a “toxic dose” of Wellbutrin. This included the copy of the

medical examiner’s autopsy report that TSBVI introduced at the hearing, which contained a

handwritten notation indicating that this medication was “not at toxic level.” Additionally, in the

affidavit from Nurse Chambers, she testified that Christopher was “never administered more than

his prescribed doses of Wellbutrin, nor was he ever administered toxic levels of Wellbutrin.” The

Dugoshes did not introduce any evidence to controvert TSBVI’s evidence that Christopher had

not been administered a toxic dose of Wellbutrin. To the contrary, as TSBVI emphasizes,

Richard Dugosh acknowledged during cross-examination that he was unaware that his attorney

had added this allegation to the Dugoshes’ claims and that he could not identify any evidence to

support that allegation.

               We conclude that TSBVI met its burden of negating, as a matter of law, the

Dugoshes’ allegation that its personnel proximately caused Christopher’s death by administering




                                                36
a fatal overdose of Wellbutrin. See Miranda, 133 S.W.3d at 227-28. Consequently, sovereign

immunity is not waived as to this allegation.


The Dugoshes’ cross-point

                In their cross-point, the Dugoshes argue that the probate court abused its discretion

in excluding excerpts from two depositions they sought to introduce during the evidentiary hearing.

The first set of excerpts was from the deposition of Mary Lou Rink, TSBVI’s dietician at the time of

Christopher’s death. The second was from the deposition of Robert Bayardo, former Travis County

Medical Examiner, who performed the autopsy on Christopher and prepared the report that TSBVI

introduced into evidence.

                The hearing took place over the course of two days. The reporter’s record from the

hearing reflects that immediately after Cogburn’s testimony concluded, which was on the second day

of the hearing, the parties took up the matter of deposition excerpts with the probate court. The

record reflects that the Dugoshes’ counsel furnished deposition excerpts to TSBVI’s counsel and

represented to the court that “I gave them all to her last night” (i.e., following the first day of the

hearing). Following a break, TSBVI’s counsel confirmed with the court that the Dugoshes’ deadline

for filing their response to TSBVI’s plea to the jurisdiction had been nine days earlier. Counsel then

objected to the Dugoshes’ excepts as “hearsay,” “not properly authenticated,” “irrelevant,” and “not

timely,” adding that “by receiving these at the earliest last night they serve as a surprise and we have

no opportunity to counter them.” Counsel further objected to Bayardo’s deposition testimony on the

ground that Bayardo had not been properly designated as an expert. TSBVI’s counsel also tendered

a list of page and line objections to the excerpts. In response, the Dugoshes’ counsel offered to prove

                                                  37
up the authenticity of the excerpts but disputed that he had any duty to designate deposition page

and line numbers prior to the evidentiary hearing. The probate court sustained TSBVI’s objection

to the excerpts’ admission. Subsequently, in response to an inquiry from the Dugoshes’ counsel,

the court indicated that, in fact, counsel had been required to designate the deposition excerpts prior

to the hearing.

                  On appeal, the Dugoshes complain that “the Court allowed TSBVI to introduce

deposition excerpts” and “stated that it would permit Appellees to introduce deposition excerpts.”

They add that “[t]he deposition excerpts were relevant and properly authenticated,” “[n]o scheduling

order required the designation of deposition excerpts before the hearing,” and that “Dr. Bayardo was

designated as an expert.” This is the entirety of the Dugoshes’ arguments in support of their cross-

point. TSBVI responds that the Dugoshes waived their cross-point by failing to adequately brief it.

See Tex. R. App. P. 38.1(h). On this record, we need only hold that the Dugoshes have not met their

burden of demonstrating that the district court abused its discretion in excluding their deposition

excerpts. We overrule the Dugoshes’s cross-point.


                                          CONCLUSION

                  As the Texas Supreme Court has observed, whether immunity is waived by

section 101.021(2) turns on “problematic” distinctions between “use” and “non-use” of tangible

personal property, Miller, 51 S.W.3d at 588-89, that lack grounding in any coherent policies

as to why immunity should be waived in a particular case as opposed to another. See id. at 591

(Hecht, J., concurring). Yet it remains that “the Legislature drew that line in the Tort Claims Act,”

Miller, 51 S.W.3d at 589, and it is our duty to apply it, like we are bound to apply the doctrine of


                                                  38
sovereign immunity, unless and until the Texas Supreme Court or the Legislature instructs us

otherwise. See Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 564 (Tex. App.—Austin

2004, no pet.).

                  Based on the foregoing analysis, we sustain TSBVI’s third issue and hold that

the Dugoshes have not asserted a claim for which sovereign immunity is waived under

section 101.021(2). Consequently, they have not invoked the probate court’s subject-matter

jurisdiction, so we must reverse the probate court’s order denying TSBVI’s plea to the jurisdiction.

Furthermore, because the Dugoshes’ factual allegations have either been negated as a matter of law

or affirmatively demonstrate that their claims are based on TSBVI’s non-use of tangible personal

property or other negligence for which sovereign immunity has not been waived,15 we must render

judgment dismissing the Dugoshes’ claims with prejudice. See Texas A&M Univ. Sys. v. Koseoglu,

233 S.W.3d 835, 840 (Tex. 2007); Miranda, 133 S.W.3d at 227. Because these holdings are

dispositive of this appeal, we do not reach TSBVI’s other issues. See Tex. R. App. P. 47.1.



                                              _________________________________________

                                              Bob Pemberton, Justice

Before Chief Justice Law, Justices Puryear and Pemberton;
  Chief Justice Law not participating

Reversed and Rendered

Filed: March 26, 2010


       15
          I.e., under the Dugoshes’ pleadings and uncontroverted jurisdictional evidence, Cogburn
and Smith cut or broke the broccoli, hot dog, and french fries before serving them to Christopher,
and thus did not furnish food entirely lacking this “integral safety component.”

                                                39
