REVERSE and REMAND; Opinion Filed August 7, 2014.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-01084-CV

     DALLAS COUNTY HOSPITAL DISTRICT D/B/A PARKLAND HEALTH AND
                     HOSPITAL SYSTEM, Appellant
                                                V.
                             LAURA CONSTANTINO, Appellee

                      On Appeal from the 162nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-12-02236-I

                             MEMORANDUM OPINION
                           Before Justices Moseley, Lang, and Brown
                                   Opinion by Justice Brown

       Dallas County Hospital District d/b/a Parkland Health and Hospital System appeals that

part of the trial court’s interlocutory order denying its plea to the jurisdiction in Laura

Constantino’s suit for personal injuries. We reverse and remand.

                                          Background

       Constantino sued Parkland after sustaining injuries to her arm and shoulder when a

television set fell on her while visiting a Parkland patient. Parkland furnishes television sets in

patient rooms for use by patients and visitors. The televisions are installed in the rooms with a

wall mounting bracket and a TV bracket. The wall mounting bracket affixes to the wall using

toggle bolts, which prevent the screws from coming out of the studs in the wall. The TV bracket

secures to the frame of the television and also attaches to the wall mounting bracket with a single
bolt. At the time of the incident giving rise to the facts in this case, the bolt attaching the TV

bracket to the wall mounting bracket was held in place with a standard nut that was capable of

coming unscrewed. Parkland had installed televisions in certain patient rooms using these

mechanisms for fifteen to twenty years. The system of using the TV bracket and wall mounting

bracket allowed Parkland to efficiently remove the televisions for replacement or repairs as

needed.

       Constantino alleged that she was in the patient’s room when “a nut, bolt and set screw” of

Parkland’s television and TV bracket failed, causing the television and bracket to fall from the

wall. No one was using the television at the time it fell. When the television fell, the TV bracket

remained attached to the television, and the wall mounting bracket remained affixed to the wall.

Parkland employees concluded the “nut backed off the bolt” that secured the TV bracket to the

wall mounting bracket. Parkland had received no reports of prior injuries or any potential

dangers presented by this television, and each television in the nearby rooms was installed in the

same manner. After the television fell, Parkland reinstalled the television using a longer bolt

with a locking nut, made sure the set screw was tightened and in place, added a washer, and

attached a safety cable for security. And although Parkland found no failings with any of the

bracket mechanisms in the nearby rooms, Parkland made the same changes to those TV brackets

to prevent another accident.

       In her live pleading, Constantino alleged that Parkland was negligent when it furnished

personal property for use that was unsafe. More specifically, Constantino alleged that Parkland

used “a non-locking nut instead of a lock nut,” “a bolt without a set screw or without a properly

tightened set screw,” and “the above bolt and non-locking nut without a lock washer.” She also

alleged that Parkland allowed the television and its bracket to be swiveled and manipulated “so

that the nut could back off the bolt allowing the television to fall.” She maintained that Parkland

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had no inspections or inspection procedure for the television or its bracket, and its negligent acts

created a dangerous or unreasonably dangerous condition, of which Parkland should have known

and she did not know. She further maintained that Parkland negligently failed to correct or warn

of the dangerous condition. She alleged that Parkland’s immunity was waived because her

injuries “were caused by a condition or use of tangible personal property or real property” in a

situation in which Parkland would be liable if it were a private person. Alternatively, she alleged

that the condition of the property was a premises defect that posed an unreasonable risk of harm.

        After some discovery, Parkland filed a plea to the jurisdiction, asserting immunity from

suit. Parkland first argued that this is a premises-defect case and Constantino failed to establish a

waiver of immunity under section 101.022 of the Texas Tort Claims Act because there was no

evidence Parkland had any knowledge of the alleged condition that caused Constantino’s

injuries. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.022 (West 2011). In a supplemental

plea to the jurisdiction, Parkland also argued that its immunity was not waived for Constantino’s

claims related to a condition or use of tangible personal property under section 101.021(2) of the

Act because, among other things, this claim was a recast of her premises-defect claim. See id.

§ 101.021(2). Both parties presented evidence as part of the jurisdictional proceeding. After a

hearing, the trial court signed an order (1) granting Parkland’s plea as to Constantino’s claim

under section 101.022 of the Act and dismissing Constantino’s premises defect claim against

Parkland and (2) denying the plea as to Constantino’s claims under section 101.021(2) related to

the “condition or use” of tangible personal or real property. The trial court did not specify a

basis for the denial.

        Parkland challenges that part of the trial court’s order denying its plea to the jurisdiction

in this interlocutory appeal. See id. § 51.014(a)(8) (West Supp. 2013). In a single issue,




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Parkland argues that the trial court erred when it denied its plea and ruled that Constantino’s

claim under section 101.021(2) could proceed.

                                        Legal Standards

       Governmental immunity protects any constitutionally or legislatively-created institution,

agency, or organ of government, like Parkland, from suit and liability. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.001(3)(D) (West Supp. 2013); see also TEX. CONST. art. IX, § 4 (creation

of hospital districts); TEX. HEALTH & SAFETY CODE ANN. § 281.0282 (West 2010) (Dallas

County Hospital District). Immunity from suit defeats a trial court’s subject-matter jurisdiction

and is properly asserted in a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 225–26 (Tex. 2004). Whether a court has subject-matter jurisdiction and

whether a plaintiff has alleged facts that affirmatively demonstrate a trial court’s subject-matter

jurisdiction are questions of law. Id. at 226; Kaufman Cnty. v. Leggett, 396 S.W.3d 24, 28 (Tex.

App.—Dallas 2012, pet. denied). We therefore review de novo a trial court’s ruling on a

jurisdictional plea. Miranda, 133 S.W.3d at 226.

       A governmental unit’s jurisdictional plea can be based on the pleadings or on evidence.

Id. When a plea to the jurisdiction challenges the pleadings, we look to whether the plaintiff has

alleged facts that affirmatively demonstrate the trial court’s jurisdiction to hear the case. Id.;

Leggett, 396 S.W.3d at 28.       We liberally construe the plaintiff’s pleadings in favor of

jurisdiction, and we look to the plaintiff’s intent, accepting as true the facts alleged. Miranda,

133 S.W.3d at 226, 228.

       When a plea challenges the existence of jurisdictional facts, we must consider relevant

evidence submitted by the parties to resolve the jurisdictional issues. Id. at 227; Leggett, 396

S.W.3d at 28. In reviewing such a plea, we take as true all evidence favorable to the nonmovant,

indulging every reasonable inference and resolving any doubts in the nonmovant’s favor.

                                                –4–
Miranda, 133 S.W.3d at 227–28. This standard mirrors our summary-judgment standard under

Texas Rule of Civil Procedure 166a(c) and places the burden on the governmental unit, as

movant, to meet the standard of proof to support its contention the trial court lacks subject-matter

jurisdiction. Id. at 228. Once the governmental unit asserts and provides evidentiary support for

its plea, the plaintiff is then required to show only that a disputed fact issue exists. Id.; Leggett,

396 S.W.3d at 28. If the evidence creates a fact question on the jurisdictional issue, the trial

court cannot grant the plea; rather the fact issue is for the fact finder to resolve. Miranda, 133

S.W.3d at 227–28. If the relevant evidence fails to raise a fact question or is undisputed on the

jurisdictional issues, the trial court rules on the plea as a matter of law. Id. at 228.

                                           Applicable Law

        Governmental immunity is waived under the Act for, among other things, personal injury

caused by (1) “a condition or use of tangible personal or real property” and (2) premises defects.

TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021(2), 101.022. The duty owed a plaintiff is part of

the waiver analysis under the Act. See id. For example, if a claim for personal injuries arises

from a condition or use of tangible property, governmental immunity is waived only to the extent

that a private person would be liable to the plaintiff under Texas law. Id. § 101.021(2). If a

claim for personal injuries arises from a premises defect, the governmental unit owes the plaintiff

a more limited duty; it generally owes “only the duty that a private person owes to a licensee on

private property.” Id. 101.022(a); see also Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 866

(Tex, 2002) (per curiam). This limited duty requires the owner of the premises to avoid injuring

the plaintiff through willful, wanton, or grossly negligent conduct and to use ordinary care either

to warn the licensee of, or make reasonably safe, a dangerous condition of which the owner is

aware and the licensee is not. City of Irving v. Seppy, 301 S.W.3d 435, 441 (Tex. App.—Dallas

2009, no pet.). But if the plaintiff pays for the use of the premises, the governmental unit owes

                                                  –5–
the plaintiff the duty owed to an invitee. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a).

That duty “requires an owner to use ordinary care to reduce or eliminate an unreasonable risk of

harm created by a premises condition of which the owner is or reasonably should be aware.”

State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).

                                           Discussion

       Parkland first argues that both of Constantino’s claims arise from the same set of facts—

the alleged spontaneous fall of the television set on her shoulder when no one was using the

television—and Constantino may not recast the same facts that make up her premises-defect

claim as a claim relating to the negligent condition or use of tangible property. In making this

argument, Parkland relies on cases that follow the Texas Supreme Court’s pronouncement in

Miranda that the Act’s limited waiver of immunity does not permit a plaintiff to avoid the

“heightened standard of a premises defect claim” in section 101.022 by recasting the same facts

as a claim relating to the negligent condition or use of tangible property. Miranda, 133 S.W.3d

at 233; see also Univ. of Tex. Sw. Med. Ctr. v. Munoz, No. 05-11-01220-CV, 2012 WL 2890366,

at *3 (Tex. App.—Dallas July 13, 2012, pet. denied) (mem. op.).

       Constantino responds that she is “not guilty of Miranda’s recasting proscription” because

her “first and primary claim for immunity” involves negligence related to the condition or use of

tangible personal property. She maintains that allegations and proof that a governmental unit

furnished inadequate or defective equipment or negligently failed to furnish equipment that is not

inadequate or defective are sufficient to establish a waiver of immunity arising from a condition

or use of tangible personal property.

       While we agree that allegations and proof that property furnished by a governmental unit

is defective are part of a claim under the Act based on the condition of property, see Salcedo v.

El Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex. 1983), there also must be an allegation supporting

                                               –6–
a viable theory of liability to establish a waiver of immunity under the Act. That is because

Parkland’s immunity from suit for personal injury claims so caused by a condition or use of

tangible property is waived only to the extent that a private person would be liable to

Constantino under Texas law. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2); see also

Ramirez, 74 S.W.3d at 866 (“immunity from suit for tort claims is waived to the extent the Act

creates liability”). In other words, a claim for personal injury due to a condition of the television

and TV bracket would be subject to a waiver of immunity only to the extent that the same theory

is recognized as against non-governmental parties. TEX. CIV. PRAC. & REM. CODE ANN. §

101.021(2); see also City of Houston v. Harris, 192 S.W.3d 167, 177 (Tex. App.—Houston [14th

Dist.] 2006, no pet.) (Edelman, J., concurring) (noting that products liability would be a theory of

liability based on condition of personal property). And Constantino bears the burden to plead

facts that demonstrate a waiver of immunity. Miranda, 133 S.W.3d at 226.

          The essence of Constantino’s allegations and evidence is not the “use” of the television

and TV bracket; 1 they are that the injury to her shoulder derived from the alleged inadequate or

defective condition of the television and TV bracket (in particular, the nut and bolt used to attach

the TV bracket to the wall mounting bracket did not protect as they should because the nut was

capable of backing off the bolt) as created by Parkland. Specifically, she alleged that (1) the

incident giving rise to her injuries occurred on premises owned, operated, and controlled by

Parkland; (2) her injuries were caused by a condition of tangible property (the television and TV

bracket); (3) Parkland furnished the television and TV bracket for use by patients and visitors;

(4) the television and TV bracket were inadequate or defective and lacked the necessary

components to render them free from this condition because they were furnished (a) using a non-

     1
       The term “use” in section 101.021(2) has been defined 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). Merely furnishing the property that makes the injury possible is
not a “use” of the property. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001). Neither party disputes that no one was
“using” the television of TV bracket at the time it fell on Constantino.



                                                                    –7–
locking nut instead of a lock nut, (b) without securing the bolt with a properly tightened set

screw or a washer, (c) in a way such that when swiveled, the standard nut could back off the bolt,

and (d) without a cable to prevent the television from falling; (5) Parkland’s negligent acts and

omissions “created a dangerous condition, the existence of which [Parkland] knew or in the

exercise of reasonable care should have known and of which [Constantino] had no knowledge;

and (6) Parkland “negligently failed to correct and failed to warn of the dangerous condition

thereby failing to reduce or eliminate the risk which additionally was negligent.” Notably, the

only duty Constantino alleged in her claim related to the condition (or use) of tangible property

arose by virtue of her status as “an invitee or licensee on the premises of [Parkland] at the time,”

which are duties owed by a premises owner. See, e.g., Del Lago Partners, Inc. v. Smith, 307

S.W.3d 762, 767 (Tex. 2010) (“In premises-liability cases, the scope of the duty turns on the

plaintiff’s status.”).

           Here, even if we take her pleadings and factual allegations in her amended petition as

true, Constantino has not alleged facts supporting, or otherwise asserted, any such claim that

would impose liability on a private person for a condition (or use) of tangible property. TEX.

CIV. PRAC. & REM. CODE ANN. § 101.021(2). Rather, the allegations Constantino pleaded as her

“primary claim” for a condition (or use) of tangible property embrace the elements of the

premises-defect claim that she alleged in the alternative. 2 See Keetch v. Kroger Co., 845 S.W.2d

262, 264 (Tex. 1992) (citing Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983)).

Indeed, negligence in the context of premises liability encompasses a nonfeasance theory based

on the owner’s failure to take measures to make property safe. Del Lago Partners, 307 S.W.3d

at 776; see also Tex. Dep’t of Transp. v. Mackey, 345 S.W.3d 760, 766 (Tex. App.—El Paso

     2
        In the alternative, Constantino alleged (1) Parkland was the owner of the premises; (2) the condition of the property—the wall mount and
television bracket and component parts were a premises defect that posed an unreasonable risk of harm of which Parkland knew and she did not
know; (3) Parkland created the dangerous condition and had actual knowledge of the relevant condition; and (4) Parkland was negligent in failing
to adequately warn her of the condition and make the condition reasonably safe.



                                                                     –8–
2011, pet. denied) (premises cases are “predicated on a property possessor’s failure to warn or

make safe dangerous or defective conditions on property”)

           In asserting that her primary claim is not a premises-defect claim, Constantino makes a

distinction between tangible personal property and real property, 3 arguing that because a

television, bolt, nut, and set screw are moveable and were not permanently attached to the wall

mounting bracket, this is different from a premises claim as “premises” is “generally defined as

‘a building or part of a building with its grounds or other appurtenances.’” (quoting Billstrom v.

Mem’l Med. Ctr., 598 S.W.2d 642, 646 (Tex. App.—Corpus Christi 1980, no writ)). She relies

on her evidence showing that the TV bracket was not permanently welded or attached to the wall

mounting bracket by other means such that the television could be easily replaced as needed.

But the removability or temporary nature of a piece of property on a premises does not convert a

premises-defect claim into a viable negligence claim, particularly in the face of pleadings that

allege a duty owed by a premises owner, and therefore, this evidence does not raise a fact

question on the jurisdictional issue. For example, in Clayton W. Williams, Jr., Inc. v. Olivo, 952

S.W.2d 523, 527 (Tex. 1997), Olivo sued for injuries he sustained when he slipped and fell on

drill pipe thread protectors that had been left on the ground during the previous shift. The Texas

Supreme Court said that this was a premises-defect case. Id. If a person is injured as a result of

a condition of the premises—including property just left on the ground of the premises—rather

than any conduct occurring at the time of the injury, she has a premises defect cause of action.

Harris, 192 S.W.3d at 176 (citing Olivo, 952 S.W.2d at 527); see also City of San Antonio v.

Estrada, 219 S.W.3d 28, 32 (Tex. App.—San Antonio 2006, no pet.).




     3
       She concedes that the trial court’s order “effectively grants Parkland’s Pleas to the Jurisdiction as to her ‘condition or use of . . . real
property’” claim.



                                                                      –9–
       Once a claim is determined to be that of a premises defect under section 101.022, we

must analyze it as such, and the plaintiff is limited to the provisions delineated by the section on

premises defects. Miranda, 133 S.W.3d at 233. In this case, we conclude that based on the

allegations raised in her amended petition, Constantino did not allege a negligence claim related

to the condition of tangible property; rather, her allegations support only a claim for injuries

caused by a condition of the premises. Thus, to the extent she asserts a claim for injuries caused

by the condition or use of tangible property, specifically that the television and TV bracket were

furnished in an inadequate or defective condition and that the use of certain components instead

of other components caused her injuries, this is simply a recasting of her premises-defect claim

as a negligent condition claim for which immunity has not been waived. Id.; Munoz, 2012 WL

2890366, at *3.

       We recognize that another panel of this Court recently concluded that allegations related

to the unsecured state of a whiteboard were sufficient to allege a negligence claim for injuries

proximately caused by the defective condition of the whiteboard such that immunity was waived

under section 101.021(2). See Dallas Metrocare Servs. v. Juarez, No. 05-11-01144-CV, 2014

WL 2993808, at *3 (Tex. App.—Dallas June 30, 2014, no pet. h.) (mem. op. on remand).

Juarez, however, is silent on the duty alleged by the plaintiff. And here, the specific duty

Constantino alleged that she was owed was the duty owed by a premises owner to an invitee or

licensee. In addition, that panel added that even if they agreed Juarez alleged only a premises-

defect claim, the result would be the same as Metrocare did not show that it was entitled to

dismissal of Juarez’s claims because the pleadings and proof did not negate Juarez’s status as an

invitee. Id. at *4. But in the face of a pleading by the plaintiff that essentially alleges a

premises-defect claim and not a “condition or use” of tangible property claim, we conclude that

Juarez is not controlling.

                                               –10–
       Although we have concluded that based on Constantino’s pleadings we must analyze her

claim as a premises-defect case, her petition does not affirmatively demonstrate that she cannot

cure the pleading defects and state a claim against Parkland within the waiver of immunity under

section 101.021(2). See Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002) (plaintiff

may be afforded opportunity to amend if petition does not affirmatively demonstrate incurable

defects in jurisdiction). We sustain Parkland’s issue on appeal and reverse that part of the trial

court’s order denying Parkland’s plea to the jurisdiction as to Constantino’s claims under section

101.021(2). But because we conclude Constantino should be afforded an opportunity to amend

her petition to plead facts showing subject-matter jurisdiction, we remand this case for further

proceedings.




                                                   /Ada Brown/
                                                   ADA BROWN
                                                   JUSTICE


131084F.P05




                                              –11–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

DALLAS COUNTY HOSPITAL                                On Appeal from the 162nd Judicial District
DISTRICT D/B/A PARKLAND HEALTH                        Court, Dallas County, Texas
AND HOSPITAL SYSTEM, Appellant                        Trial Court Cause No. DC-12-02236-I.
                                                      Opinion delivered by Justice Brown.
No. 05-13-01084-CV          V.                        Justices Moseley and Lang participating.

LAURA CONSTANTINO, Appellee

        In accordance with this Court’s opinion of this date, that part of the trial court’s July 23,
2013 order denying appellant Dallas County Hospital District d/b/a Parkland Health and Hospital
System’s plea to the jurisdiction is REVERSED and this cause is REMANDED to the trial
court for further proceedings.

       It is ORDERED that appellant Dallas County Hospital District d/b/a Parkland Health and
Hospital System recover its costs of this appeal from appellee Laura Constantino.


Judgment entered this 7th day of August, 2014.




                                               –12–
