11th Court of Appeals
Eastland, Texas
Memorandum Opinion
Dylan Dirk Sarver and wife, Karen Ann Sarver
Appellants
Vs. No. 11-03-00193-CV B Appeal from Galveston County
The University of Texas Medical Branch at Galveston
Appellee
Dylan Dirk Sarver underwent surgery at The University of Texas Medical Branch at Galveston (UTMB) in August 1999 for an anterior lumbar interbody fusion. Doctors aborted the surgery when Sarver=s left iliac vein was lacerated. Sarver developed deep vein thrombosis as a result of the laceration, and he was readmitted to UTMB in September 1999. At that time he underwent further surgery due to the complications that followed the August procedure. Sarver and his wife Karen sued UTMB and Dr. Glenn C. Hunter to recover damages that they sustained as a result of the treatment. UTMB filed a plea to the jurisdiction, a motion to dismiss, and a motion to sever, all of which the trial court denied. Appellants filed their third amended petition after the trial court granted UTMB=s special exceptions to their second amended petition.[1] UTMB filed another plea to the jurisdiction and motion to dismiss based on sovereign immunity; the trial court granted the relief and dismissed the case. In a single issue, the Sarvers assert that the trial court erred when it granted UTMB=s plea to the jurisdiction. We affirm.
In order to determine whether the trial court erred in granting the plea to the jurisdiction, we must decide whether appellants have alleged a cause of action that falls within the sovereign im-munity waiver provisions of the Texas Tort Claims Act. TEX. CIV. PRAC. & REM. CODE ANN. ' 101.021 (Vernon 1997). If a cause of action is barred by sovereign immunity, the trial court lacks subject matter jurisdiction and should dismiss the case. Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex.2004); City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex.App. - Austin 1998, no pet=n). A plea to the jurisdiction is the appropriate vehicle by which a governmental unit may raise a trial court=s lack of subject matter jurisdiction based on sovereign immunity. Texas Department of Parks and Wildlife v. Miranda, supra. The plaintiff bears the burden of affirmatively showing that the trial court has subject matter jurisdiction. Scott v. Prairie View A&M University, 7 S.W.3d 717 (Tex.App. - Houston [1st Dist.] 1999, pet=n den=d). Subject matter jurisdiction is a question of law that we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). On appeal from an order granting a plea to the jurisdiction, we review the pleadings and any evidence relevant to the jurisdictional issue. Texas Department of Parks and Wildlife v. Miranda, supra; Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001); Bland Independent School District v. Blue, 34 S.W.3d 547, 555 (Tex.2000); Starkey v. Andrews Center, 104 S.W.3d 626, 629 (Tex.App. - Tyler 2003, no pet=n).
UTMB is a governmental entity entitled generally to sovereign immunity unless that immunity is waived. Sovereign immunity is waived in limited circumstances under the Texas Tort Claims Act. Section 101.021; McCall v. Dallas County Hospital District, 997 S.W.2d 287 (Tex.App. - Eastland 1999, no pet=n). Section 101.021(2) of the Act provides:
A government unit in the state is liable for:
(2) 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.
Appellants allege that they were injured by UTMB=s failure to properly treat, evaluate, and provide appropriate support of the venous perfusion in Mr. Sarver=s leg. Specifically, appellants claim that Mr. Sarver=s injuries were proximately caused by a condition or use of tangible personal property by UTMB, when its agents Afailed to timely and/or properly utilize sonogram diagnostic equipment, TED hose or stockings, and/or sequential compression devices@ to treat Mr. Sarver. However, appellants make no factual allegations in their petition to support the proposition that the equipment was ever used on Mr. Sarver. Instead, appellants argue on appeal, as they did below, that the failure to use the equipment satisfied the Ause@ requirement for waiver of sovereign immunity. We disagree.
Appellants first argue that the Ause@ requirement subjects governmental units to liability for personal injuries negligently caused by the nonuse of property where the state institution clearly assumed a duty of care for the injured person=s well-being by accepting and admitting the individual for medical treatment in a state hospital. To support their argument, appellants rely on Jenkins v. State, 570 S.W.2d 175, 178 (Tex.Civ.App. - Houston [14th Dist.] 1978, no writ)(failure to administer medication), and Weeks v. Harris County Hospital District, 785 S.W.2d 169 (Tex.App. - Houston [14th Dist.] 1990, writ den=d). However, as the Supreme Court of Texas held, AThere cannot be waiver of sovereign immunity in every case in which medical treatment is provided by a public facility.@ Kerrville State Hospital v. Clark, 923 S.W.2d 582, 585-86 (Tex.1996). AIf there is waiver in all of those cases, the waiver of immunity is virtually unrestricted, which is not what the Legislature intended.@ Texas Department of Criminal Justice v. Miller, supra at 588 (citing Kerrville State Hospital v. Clark, supra).
Appellants also rely upon Robinson v. Central Texas MHMR Center, 780 S.W.2d 169 (Tex.1989)(failure to provide life preserver as part of swimming attire), and Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex.1976)(football uniform was defective for failure to provide knee brace). The Supreme Court of Texas has stated that Robinson and Lowe represent the Aouter bounds@ of examples of the use of tangible personal property. Kerrville State Hospital v. Clark, supra; see also Russell v. City of Seymour, 836 S.W.2d 283 (Tex.App. - Eastland 1992, writ den=d) (examining the distinction between use and nonuse of tangible personal property in Lowe). The court did not intend, in deciding these cases, to allow both use and nonuse of property to result in waiver of immunity under the Act. The precedential value of these cases is limited to claims in which Aa 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.@ Kerrville State Hospital v. Clark, supra at 585; McCall v. Dallas County Hospital District, supra.
Appellants did not allege that UTMB provided Mr. Sarver with property that lacked an integral safety component. Appellants alleged that UTMB failed to provide or treat Mr. Sarver with certain equipment. The Supreme Court of Texas has never held that mere nonuse of property can support a waiver of sovereign immunity under the Tort Claims Act. McCall v. Dallas County Hospital District, supra at 289 (citing Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex.1994)). AUse@ means to Aput or bring [the property] into action or service; to employ for or apply to a given purpose.@ Kerrville State Hospital v. Clark, supra at 584; McCall v. Dallas County Hospital District, supra at 289. Although appellants do allege that appellee failed to timely or properly utilize equipment, such blanket statements do not satisfy the waiver provision found in the Tort Claims Act without factual allegations to support them. Texas Department of Criminal Justice v. Miller, supra at 588. In reviewing the pleadings, as well as the arguments below and on appeal, it is clear that appellants= complaint was that Mr. Sarver=s injuries could have been prevented or possibly less severe had UTMB=s agents used certain equipment to treat the thrombosis but that they did not use that equipment. UTMB=s failure to use these devices does not fall within the definition of use under the Texas Tort Claims Act. See Bishop v. City of Big Spring, 915 S.W.2d 566, 572 (Tex.App. - Eastland 1995, no writ). Therefore, there is no waiver of UTMB=s sovereign immunity. The trial court did not err in granting UTMB=s plea to the jurisdiction. Appellants= sole issue on appeal is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
JUSTICE
June 30, 2004
Not designated for publication. See TEX.R.APP.P. 47.2(a).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]Appellants did not include Dr. Hunter in the suit when they filed their third amended petition.