Reversed and Rendered and Opinion filed October 17, 2017.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00234-CV

                        CITY OF HOUSTON, Appellant
                                         V.
 FRANK GUTKOWSKI, INDIVIDUALLY AND AS REPRESENTATIVE
FOR THE ESTATE OF PATRICIA GUTKOWSKI, DECEASED, TAMMIE
     RENE GUTKOWSKI AND CARL GUTKOWSKI, Appellees

                    On Appeal from the 125th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2016-13081

                                 OPINION

      In this interlocutory appeal from the trial court’s denial of the City of
Houston’s plea to the jurisdiction, we are asked to consider whether allegations that
the City’s emergency services vehicle was not supplied with integral safety
components to perform a “lift and assist” of a patient, or if supplied were not used
by emergency services personnel, can waive the City’s governmental immunity
under the Texas Tort Claims Act. We conclude that these allegations should be
characterized as a complaint that the emergency services personnel failed to use
safety equipment to perform a “lift and assist” rather than a complaint about the use
of tangible personal property for which immunity is waived. We reverse the trial
court’s order and render judgment dismissing the claims against the City of Houston.

                              FACTUAL BACKGROUND

      In this wrongful death and survival action, the husband and adult children of
the deceased, Patricia Gutkowski, have sued the City of Houston under the Texas
Tort Claims Act. The Gutkowskis allege that Houston Fire Department (HFD)
personnel who responded to their 9-1-1 call for a “lift and assist” for Patricia
Gutkowski failed to provide integral safety components that were contained in, or
should have been contained in, the HFD emergency medical services vehicle to carry
out a “lift and assist,” and that this failure proximately caused Patricia Gutkowski’s
injury and death.

      In their petition, the Gutkowskis allege that on July 25, 2014, they called 9-1-
1 requesting assistance at their home because Patricia Gutkowski had fallen out of
bed and family members were unable to lift her. Four or five emergency services
personnel from HFD Station #77 arrived in a HFD emergency medical services
vehicle. HFD Station #77 personnel had been called to provide “lift and assist” help
for Patricia Gutkowski on prior occasions and were familiar with her condition.

      When the HFD personnel entered the bedroom, Patricia Gutkowski’s legs
were under the bed. The Gutkowskis allege that one of the HFD responders stood
behind Patricia Gutkowski, wrapped his arms around her under her arms, and
“yanked” her up. As a result, Patricia Gutkowski’s right leg was “slammed” into the
metal bed frame causing an L-shaped laceration below the knee. The Gutkowskis
allege that HFD personnel failed to place Patricia Gutkowski’s body in a proper
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position as they would have had to do to use any type of safety equipment such as a
portable lifting device, lift board, or lift sling.

       The L-shaped laceration running downward from Patricia Gutkowski’s knee
to her ankle and from the right side of the knee to the left side of the knee caused
significant blood loss. The Gutkowskis allege that HFD personnel wrapped the
wound, but not sufficiently to stop the bleeding. Patricia Gutkowski was transported
to a hospital, where she had a heart attack the next day. She died on August 10, 2014.
The Gutkowskis maintain that Patricia Gutkowski’s death was caused by the trauma
and significant blood loss resulting from the leg injury.

       In 2016, the Gutkowskis sued HFD and the City of Houston. HFD and the
City filed a general denial and asserted, among other things, that the Gutkowskis had
failed to plead a waiver of the City’s governmental immunity under the Texas Tort
Claims Act. The Gutkowskis amended their petition to name only HFD, to which
the City filed an amended answer and specially excepted on the grounds that HFD
is not a separate legal entity that may be sued. The Gutkowskis then filed a third
amended petition naming only the City and asserting a waiver of immunity under
section 101.021 of the Tort Claims Act.

       The City filed a plea to the jurisdiction and motion to dismiss, which was set
for hearing on February 24, 2017. The Gutkowskis did not file a response. Instead,
on the date of the hearing they filed a fourth amended petition, alleging for the first
time that “a lift board or lift sling should have been used to safely move” Patricia
Gutkowski. At the hearing, the City argued that an allegation of “non-use” did not
waive immunity. The trial court passed the hearing and asked the Gutkowskis to file
a response by March 3, 2017.

       The Gutkowskis filed a fifth amended petition and a response to the City’s
plea to the jurisdiction. The Gutkowskis asserted that the use of an emergency
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medical services vehicle lacking integral safety components and the failure to use
integral safety components to safely move Patricia Gutkowski waived the City’s
immunity under section 101.021 of the Tort Claims Act. The Gutkowskis also
alleged that immunity was waived under the emergency and 9-1-1 emergency
service exceptions of sections 101.055(2) and 101.062 of the Tort Claims Act
because the HFD personnel acted with conscious indifference or reckless disregard.
The City filed a reply in which it argued that the gravamen of the Gutkowski’s claims
was the failure of the City’s employees to use property, for which there was no
immunity, and that no exception applied.

       On March 8, 2017, the trial court signed an order denying the City’s plea to
the jurisdiction and motion to dismiss. This interlocutory appeal followed.

                                    ISSUES AND ANALYSIS

       On appeal, the City argues that its governmental immunity is not waived
because the allegation of a failure to use “integral safety components” is in reality
an allegation of non-use of tangible personal property, which is not a basis for waiver
of immunity.1 The City also argues that even if the use of personal property waived
immunity, the facts alleged place this case under the emergency and 9-1-1
emergency service exceptions to the waiver of immunity because the Gutkowskis
have presented no evidence that the HFD personnel acted with conscious



       1
         The City also argues that the presence of the bed frame cannot support a waiver of
immunity based on a use of tangible personal property because the bed frame merely furnished the
condition that made the injury possible. The Gutkowskis have not asserted or alleged facts
supporting such a claim, and therefore we do not address this argument. We note, however, that
such an allegation would not succeed on these facts. See Dallas Area Rapid Transit v. Whitley,
104 S.W.3d 540, 543 (Tex. 2003) (stating that the operation or use of a motor vehicle or property
“does not cause injury if it does no more than furnish the condition that makes the injury possible”
(quoting Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.
1998))).

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indifference or reckless disregard.

      A.     Standard of Review and Applicable Law

      Under the common law doctrine of sovereign immunity, the state cannot be
sued without its consent. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex.
2011). Sovereign immunity refers to the state’s immunity from both suit and liability
and protects the state and its divisions, while governmental immunity protects
political subdivisions of the state, including counties, cities, and school districts. See
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).
Governmental immunity from suit defeats a trial court’s subject matter jurisdiction.
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003)

      We review a trial court’s ruling on a plea to the jurisdiction de novo. Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). “In a suit
against a governmental unit, the plaintiff must affirmatively demonstrate the court’s
jurisdiction by alleging a valid waiver of immunity.” Whitley, 104 S.W.3d at 542.
The plaintiff must allege facts that affirmatively establish the trial court’s subject
matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446
(Tex. 1993). In determining whether this burden has been satisfied, we must construe
the pleadings liberally in the plaintiff’s favor and deny the plea if the plaintiff has
alleged facts affirmatively demonstrating jurisdiction to hear the case. See Miranda,
133 S.W.3d at 226.

      If the governmental entity challenges the plaintiff’s jurisdictional allegations,
then the plaintiff must adduce some evidence to support jurisdiction. See Miranda,
133 S.W.3d at 227–28. The trial court then considers the relevant evidence submitted
by the parties. Id. at 227. If the evidence creates a fact question regarding
jurisdiction, then the trial court must deny the plea, and the fact issue will be resolved
by the fact finder. Id. at 227–28. But if the evidence is undisputed, then the trial court
                                            5
rules on the plea to the jurisdiction as a matter of law. Id. at 228.

      The Tort Claims Act provides a limited waiver of sovereign immunity,
allowing suits to be brought against governmental units only in certain, narrowly
defined circumstances. Tex. Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 587
(Tex. 2001). In relevant part, the statute provides that a governmental unit in the
state is liable 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 § 101.021(2).

      The Supreme Court of Texas has consistently defined “‘use’ to mean ‘to put
or bring into action or service; to employ for or apply to a given purpose.’” San
Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004) (citations omitted);
see Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996) (citations
omitted). The mere failure to use tangible personal property does not waive
immunity. See Kerrville State Hosp., 923 S.W.2d at 584 (“This Court has never held
that mere non-use of property can support a claim under the Texas Tort Claims
Act.”). If it were otherwise, governmental immunity “‘would be rendered a nullity,’
because ‘[i]t is difficult to imagine a tort case which does not involve the use, or
nonuse, of some item of real or personal property.’” City of North Richland Hills v.
Friend, 370 S.W.3d 369, 372 (Tex. 2012) (alteration in original) (quoting Kerrville
State Hosp., 923 S.W.2d at 586). But in some cases, the court has held that “when a
plaintiff alleges that property used by the state lacks an integral safety component,
immunity is waived under section 101.021(2).” Id. (citing Lowe v. Texas Tech Univ.,
540 S.W.2d 297, 300 (Tex. 1976)); see also Robinson v. Cent. Tex. MHMR Ctr., 780
S.W.2d 169, 171 (Tex. 1989).



                                            6
      B.       Analysis

      The City’s primary contention is that the Gutkowskis’ allegations amount to
a claim that the HFD personnel failed to use equipment they should have used to
move Patricia Gutkowski’s legs from under the bed and lift her, which is an
allegation of “non-use” of property that does not waive immunity. The Gutkowskis
respond that their allegations support the trial court’s conclusion that the City’s
governmental immunity is waived because the City “employed the use of an
Emergency Medical Services vehicle, tangible personal property, that either lacked
integral safety components or the employees of the governmental unit failed to
employ the use of integral safety components necessary to the safety of Patricia
Gutkowski” when they had prior knowledge of her specific needs. As support for
this contention, the Gutkowskis rely on Lowe v. Texas Tech University, 540 S.W.2d
297 (Tex. 1976), and Robinson v. Central Texas MHMR Center, 780 S.W.2d 169
(Tex. 1989).

      The plaintiff in Lowe was a varsity football player who alleged that Texas
Tech University failed to give him a knee brace with his football uniform. See 540
S.W.2d at 298. The supreme court concluded that because a knee brace was, in light
of the plaintiff’s previous knee injury, an integral part of his football uniform, the
failure to furnish it constituted a use of property sufficient to invoke the waiver of
immunity in section 101.021(2). Id. at 300. In Robinson, the court held that immunity
was waived when government employees provided swimming attire without a life
preserver to a patient known to be epileptic. See 780 S.W.2d at 171. The Robinson
court drew on the precedent set in Lowe, concluding that “[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.

      The supreme court has since made it clear that Lowe and Robinson represent

                                          7
“the outer bounds of what we have defined as use of tangible personal property.”
Friend, 370 S.W.3d at 372 (quoting Kerrville State Hosp., 923 S.W.2d at 585). The
court explained that “[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. (quoting Kerrville State Hosp., 923 S.W.2d at 585). Further,
the integral safety component doctrine has since been further limited to cases in
which “a safety component is completely lacking, as opposed to merely inadequate.”
Id. (citing Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 584 (Tex. 2005)).

      The supreme court’s more recent opinion in Friend is particularly instructive
when analyzing the allegations in the present case. In Friend, a woman collapsed
while waiting in line at a city-owned water park, and the city employees used oxygen
masks and other airway equipment instead of an automatic external defibrillator
(AED) that was in a storage closet on park grounds. 370 S.W.3d at 370. An AED
was used some twenty-one minutes later after the city fire department arrived, but
the woman could not be revived and died that same day. Id. The plaintiffs alleged
that if the city employees had used the AED on the woman immediately, prior to
using the airway equipment, the device would have saved her life. Id.

      Like the Gutkowskis, the Friend plaintiffs relied on Lowe and Robinson to
argue that the city’s governmental immunity was waived because they alleged that
“the City used emergency equipment but omitted an integral component of that
equipment, the AED.” Id. at 372–73. The supreme court rejected this argument,
reasoning that “[s]uch a formulation threatens to eviscerate any limiting principle on
‘condition or use’ entirely” and “would enable plaintiffs, through artful pleading, to
enlarge the scope of the waiver provided by section 101.021(2) by alleging that a
governmental actor failed to use one particular type of equipment among a broadly

                                          8
defined class of property that may have been employed.” Id. at 373. The court
ultimately held that the plaintiffs “essentially allege no more than a failure to use an
AED, which does not fall within the waiver of immunity in section 101.021(2) of
the Tort Claims Act.” Id.

       Likewise, the Gutkowskis’ argument that the emergency medical services
vehicle is itself equipment that was missing the “integral component” of a portable
lifting device is an example of the kind of artful pleading the supreme court has
cautioned against. See id. (“Despite our binding precedent that forbids claims for
nonuse, plaintiffs could circumvent immunity simply by alleging that property that
was not used is linked, albeit indirectly, to property that was used—and used
properly.”). Assuming that emergency medical services vehicles should carry some
type of portable lifting device, the two are not interrelated parts of an interdependent
unit or system, and the Gutkowskis do not allege that the vehicle was improperly
used.2 Moreover, we are cognizant of the supreme court’s warning that expanding
the integral safety component theory “create[s] a disincentive for governmental units
to provide any form of health or safety equipment at their establishments.” See id.

       The Gutkowskis maintain that Lowe and Robinson are on point and Friend is
distinguishable because in Lowe and Robinson the governmental entities had prior
knowledge of the injured person’s history, while in Friend the city employees had
no prior knowledge of the injured person. The Gutkowskis argue that their allegation


       2
         We also note that the Tort Claims Act separately provides for a waiver of immunity based
on property damage, personal injury, or death arising from the operation or use of a motor-driven
vehicle, such as an ambulance or police vehicle. See Tex. Civ. Prac. & Rem. Code § 101.021(1).
To waive immunity under this provision, the vehicle must have been actively operated by the
government employee at the time of the incident, used as a vehicle, and the tortious act alleged
must relate to the defendant’s operation of the vehicle. See Ryder Integrated Logistics, Inc. v.
Fayette Cty., 453 S.W.3d 922, 927–28 (Tex. 2015) (per curiam). The Gutkowskis do not allege
that the City’s immunity is waived under this provision.

                                               9
that that he HFD Station #77 personnel had prior knowledge of Patricia Gutkowski’s
“lift and assist” needs brings this case within the precedent of Lowe and Robinson.

      We disagree that Lowe and Robinson are on point because those decisions
turned on the governmental entities’ negligent provision of property missing an
integral safety component, rather than their knowledge of the injured parties’
conditions. See Robinson, 780 S.W.2d at 171; Lowe, 540 S.W.2d at 300. Moreover,
the supreme court rejected a similar argument in Kerrville State Hospital v. Clark,
923 S.W.2d 582 (Tex. 1996). In that case, the plaintiffs’ daughter was brutally
murdered by her husband, a mental patient, shortly after he checked out of a state
hospital where he had been receiving treatment. See id. at 583. The plaintiffs argued
that the hospital should have administered an injectable drug to the husband before
he left, rather than prescribe an oral drug, because it had prior knowledge that he had
not been taking his oral medication and became violent when not medicated. See id.
at 584. The court concluded that Lowe and Robinson were distinguishable, because
the plaintiffs had not alleged that the hospital provided property lacking an integral
safety component; rather, their real complaint was that the hospital’s “non-use of an
injectionable drug was the cause of their daughter’s death.” Id. at 585.

      Similarly, we conclude that the Gutkowskis’ real complaint is that the HFD
personnel failed to use some type of portable lifting device to move Patricia
Gutkowski. Such an allegation of non-use of tangible personal property does not
waive immunity under section 101.021(2) of the Tort Claims Act. See Friend, 370
S.W.3d at 373 (holding that allegation of failure to use a particular device to revive
woman did not fall within the waiver of immunity in section 101.021(2) of the Tort
Claims Act); Miller, 51 S.W.3d at 587–88 (stating that claims alleging the failure to
use property or the non-use of property, or alleging errors in medical judgment, are
not within the waiver of immunity); Kerrville State Hosp., 923 S.W.2d at 586

                                          10
(holding that allegation of nonuse of one type of treatment rather than another does
not fall within the definition of use under the Tort Claims Act).

       The Gutkowskis also make a passing argument that their allegation that HFD
personnel failed to properly wrap Patricia Gutkowski’s injury to stop or reduce the
bleeding also constitutes a use of tangible personal property. But it is not enough
that some property is involved; the use of that property must have actually caused
the injury. See Tex. Civ. Prac. & Rem. Code § 101.021(2); Miller, 51 S.W.3d at 588;
Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 342–
43 (Tex. 1998). Here, the Gutkowskis allege that the cause of Patricia Gutkowski’s
injury and death was the HFD responder’s failure to place her legs in a safe position
before lifting her and the failure to use some type of portable lifting device, which
resulted in the L-shaped laceration of her right leg. There is no allegation that the
wrapping material caused Patricia Gutkowski’s injury. The mere allegation that
emergency personnel also improperly wrapped the wound is not a sufficient
allegation of the “use” of tangible personal property to bring the Gutkowskis’ claims
within the Tort Claims Act’s waiver of immunity. See Robinson v. Univ. of Tex.
Med. Branch at Galveston, 171 S.W.3d 365, 369 (Tex. App.—Houston [14th Dist.]
2005, no pet.) (“For the property exception to apply, the property must be the
instrumentality of harm.”).

      We hold that the Gutkowskis have failed to allege facts sufficient to waive the
City’s governmental immunity under section 102.021(2) of the Tort Claims Act. We
therefore reverse the trial court’s order denying the City’s plea to the jurisdiction and
motion to dismiss, and render judgment dismissing the Gutkowskis’ claims. See
Friend, 370 S.W.3d at 373 (“When a suit fails to allege facts sufficient to implicate
a waiver of [governmental] immunity, the suit is barred.”). We do not reach the
City’s issue concerning the emergency and 9-1-1 emergency services exceptions to

                                           11
the waiver of immunity.

                                  CONCLUSION

      We reverse the order of the trial court, and we render judgment dismissing the
Gutkowskis’ claims against the City of Houston.




                                      /s/    Ken Wise
                                             Justice



Panel consists of Justices Christopher, Brown, and Wise.




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