Archibeque v. North Texas State Hospital-Wichita Falls Campus

OPINION

JOHN CAYCE, Chief Justice.

I. Introduction

Appellant Tonya M. Archibeque, Individually and as heir of Janae Devries, Deceased, appeals from the trial court’s judgment granting appellee’s plea to the jurisdiction and dismissing her wrongful death and survival action. In her sole issue on appeal, Archibeque contends ap-pellee’s sovereign immunity from suit has been waived under the Texas Tort Claims Act1 because Devries’s death was the re-*157suit of the use or misuse of tangible personal property. Because we conclude that appellee’s immunity from suit has not been waived, we will affirm the trial court’s judgment.

II.Background Information & Procedural History

Archibeque’s mother, Janae Devries, was a patient at North Texas State Hospital, which is a part of the Texas Department of Mental Health and Mental Retardation.2 While at the hospital, Devries allegedly committed suicide by covering her head with a trash bag and tying shoe laces around her neck. Thereafter, Archi-beque filed a wrongful death and survival action,3 seeking to recover damages from appellee arising from Devries’s death. Appellee filed a plea to the jurisdiction, alleging that it was sovereignly immune from suit for tort liability because the legislature had not consented to the suit. The trial court granted the plea, and this appeal followed.

III.Standard of Review

A plea to the jurisdiction challenges the trial court’s authority to determine the subject matter of the action. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Whether the trial court had subject matter jurisdiction is a question of law that we review de novo. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Mogayzel v. Tex. Dep’t of Transp., 66 S.W.3d 459, 463 (Tex.App.-Fort Worth 2001, pet. denied). The plaintiff has the burden of alleging 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 jurisdiction exists, we accept the allegations in the pleadings as true and construe them in favor of the pleader. Id.; Tex. Dep’t of MHMR v. Lee, 38 S.W.3d 862, 865 (Tex.App.-Fort Worth 2001, pet. denied). We must also consider evidence relevant to jurisdiction when it is necessary to resolve the jurisdictional issue raised. Bland ISD v. Blue, 34 S.W.3d 547, 555 (Tex.2000). No evidence was presented to the trial court in this case; therefore, we look solely to Archibeque’s pleadings to determine the jurisdictional question.

IV.Sovereign Immunity From Suit

A. Use or Misuse of Property

Governmental entities such as appellee are immune from suit unless the legislature has expressly consented to the suit. Jones, 8 S.W.3d at 638; Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997). Absent legislative consent to sue a governmental entity, the trial court lacks subject matter jurisdiction over the case. Jones, 8 S.W.3d at 638. The Texas Tort Claims Act provides a limited waiver of sovereign immunity, allowing suits to be brought against governmental agencies only in certain narrowly-defined circumstances. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001); see also Dallas County MHMR v. Bossley, 968 S.W.2d 339, 341 (Tex.1998) (“[T]he Legislature intended the waiver in the Act to be limited .... ”), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998). Mere reference to the Act in a plaintiffs pleading does not establish the *158State’s consent to be sued and thus is not enough to confer jurisdiction on the trial court. Miller, 51 S.W.3d at 587. Rather, “we must look to the terms of the Act to determine the scope of its waiver,” Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex.1996), and then must determine whether the particular facts alleged in the case before us come within that scope. Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001); Miller, 51 S.W.3d at 587.

Archibeque contends that she pleaded sufficient facts to show that her claims fall within the Act’s immunity waiver. She asserts that the Act waives appellee’s immunity from suit as to her claims because her claims are based on appellee’s negligence involving the use or misuse of tangible personal property. Specifically, Archi-beque alleges that appellee was negligent in providing Devries, who had a history of suicidal tendencies, a plastic trash bag and shoe laces, which she used to commit suicide. Archibeque also alleges that appel-lee’s employees negligently failed to use a flashlight to monitor Devries during sleeping hours and negligently failed to properly diagnose Devries’s condition and mental status in her chart.

Section 101.021 of the Act provides that a governmental unit is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(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.

Tex. Civ. PRAC. & Rem.Code Ann. § 101.021 (Vernon 1997).4 Only section 101.021(2) is at issue in this case.

To state a claim under section 101.021(2), the plaintiff must allege that (1) property was used or misused by a governmental employee and (2) the use proximately caused personal injury or death. Bossley, 968 S.W.2d at 343; Lee, 38 S.W.3d at 867; Smith v. Tarrant County, 946 S.W.2d 496, 501 (Tex.App.-Fort Worth 1997, writ denied) (op. on reh’g). “Use” means “to put or bring into action or service; to employ for or apply to "a given purpose.” White, 46 S.W.3d at 869; Le-Leaux v. Hamshire-Fannett ISD, 835 S.W.2d 49, 51 (Tex.1992). A mere allegation of use by a governmental employee or the involvement of property is insufficient to state a claim for which immunity has been waived under the Act; rather, the use must have proximately caused the injury or death. Bossley, 968 S.W.2d at 343; see also Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32-33 (Tex.1983); Lowe v. Tex. Tech. Univ., 540 S.W.2d 297, 299-300 (Tex.1976) (both construing phrase “personal injury and death so caused by a condition or use of property” as meaning “when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office”).5 Although *159the degree of involvement is difficult for courts to discern in certain cases, the rationale and holdings of supreme court decisions make clear that there must be a close causal relationship between the condition or use of the property and the resulting injury. Lee, 38 S.W.3d at 867. “Property does not cause injury if it does no more than furnish the condition that makes the injury possible.” Bossley, 968 S.W.2d at 343 (citing Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.1995)).

In this case, Archibeque asserts that appellee negligently used the trash bag and shoe laces because appellee furnished them to Devries, who had a history of suicidal tendencies, and failed to remove them from her room. Archibeque does not explain what appellee used the trash bag and shoe laces for, but presumably they were employed for their usual purposes: to collect trash and tie shoes. Archibeque does not contend that Devries’s death was caused by either the collection of trash or the tying of her shoes; thus, Archibeque has not alleged that Devries’s death was proximately caused by appellee’s use or misuse of the trash bag and shoe laces. See Tex. Dep’t of Criminal Justice v. Diller, — S.W.3d -, -, No. 12-02-00003-CV, 2002 WL 31680829, at * 3 (Tex.App.-Tyler Nov.27, 2002, pet. filed) (holding that prison employees’ use of plastic mesh bag to transport suicidal inmate’s clothing, and failure to remove bag from inmate’s cell, was not proximate cause of inmate’s subsequent suicide by hanging with the bag); see also DART v. Whitley, 104 S.W.3d 540, 542-43 (Tex.2003) (holding that DART bus driver’s ejection of handicapped passenger from bus and failure to return for him as promised, so that he was severely beaten by another passenger who had threatened him in front of driver, was not use of motor vehicle under section 101.021(1) that proximately caused passenger’s injuries).

The mere presence of the trash bag and shoe laces in Devries’s room did no more than furnish the condition that made her death possible; it did not kill Devries or cause her to engage in suicidal conduct. Although Devries’s use of the trash bag and shoe laces were part of a tragic sequence of events that ended in her death, appellee’s alleged use of these items was too attenuated from her death to be said to have caused it. See Bossley, 968 S.W.2d at 343 (holding that unlocked doors at treatment facility, which permitted patient to escape and later commit suicide, were too attenuated from death to have caused it); Lee, 38 S.W.3d at 868 (holding that unlocked doors, which permitted assailant to enter hypersexual and promiscuous patient’s room and sexually assault her, were too attenuated from patient’s injuries to have caused them); Bush v. Tex. Dep’t of Protective & Regulatory Servs., 983 S.W.2d 366, 369 (Tex.App.-Fort Worth 1998, pet. denied) (holding that TDPRS’s alleged misuse of intake questionnaires and forms, by stating thereon that parental abuse allegations involving child were unfounded, was too far removed from child’s later death from abuse to have caused it).

The cases on which Archibeque relies are not on point. They involve either the alleged misuse of medical equipment6 or the provision of property that lacked an integral safety component,7 and their prec-*160edential value is limited to their particular circumstances.8 Archibeque does not contend that appellee misused medical equipment or that the trash bag and shoe laces in question lacked an integral safety component.9

The true substance of Archibeque’s complaint is that Devries’s death was caused, not by appellee’s use of the trash bag and shoe laces, but by the failure of appellee’s staff to exercise sufficient care in monitoring Devries due to her suicidal history. This alleged failure does not fall within the Act’s limited waiver of immunity. See Lacy v. Rusk State Hosp., 31 S.W.3d 625, 680 (Tex.App.-Tyler 2000, no pet.); San Antonio State Hosp. v. Koehler, 981 S.W.2d 32, 37 (Tex.App.-San Antonio 1998, pet. denied) (both holding that negligence in care or supervision of patient is not actionable under the Act).

B. Nonuse of Property

Likewise, Archibeque’s allegations that appellee failed to use appropriate flashlights to adequately check on Devries during sleeping hours; negligently failed to note in Devries’s chart her presence during room checks; and negligently failed to properly diagnose Devries’s condition and mental status in her chart do not state a claim under the Act for two reasons. First, these averments are simply allegations of the nonuse of property: the failure to use a flashlight and Devries’s medical chart. The nonuse of property cannot support a claim under the Act. White, 46 S.W.3d at 869-70; see also Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex.1994) (holding that nonuse of available drugs during emergency medical treatment is not a use of tangible personal property that triggers a sovereign immunity waiver); Gainesville Mem’l Hosp. v. Tomlinson, 48 S.W.3d 511, 514 (Tex.App.-Fort Worth 2001, pet. denied) (holding that aide’s alleged failure to use intercom was nonuse of property for which immunity was not waived).

Second, medical information and the paper on which it may or may not be written is not tangible property under the Act. Kassen, 887 S.W.2d at 14; Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 175-76 (Tex.1994). This is true whether *161or not the information and paper were properly used. York, 871 S.W.2d at 175-76; accord Bush, 988 S.W.2d at 369 (applying York to allegation that TDPRS had failed to properly use paper intake forms and questionnaires). The two cases to the contrary that Archibeque cites have been disapproved or reversed by the supreme court. See Tex. Dep’t of MHMR v. Petty ex rel. Kauffman, 848 S.W.2d 680 (Tex.1992) (plurality op.), disapproved by York, 871 S.W.2d at 179; State v. San Miguel, 981 S.W.2d 342 (Tex.App.-Houston [14th Dist.] 1998) (op. on reh’g), rev’d, 2 S.W.3d 249 (Tex.1999). Accordingly, Archibeque’s allegations that appellee failed to use Dev-ries’s chart or failed to properly record pertinent information therein do not state a claim under the Act.

V. Conclusion

For all of the foregoing reasons, we hold that Archibeque failed to allege facts that affirmatively established the trial court’s subject matter jurisdiction over her suit. Accordingly, the trial court properly granted appellee’s plea to the jurisdiction and dismissed Archibeque’s claims. We overrule Archibeque’s sole point on appeal and affirm the trial court’s judgment.

WALKER, J. filed a dissenting opinion.

. Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001-.109 (Vernon 1997 & Supp.2003).

. Tex Health & Safety Code Ann. § 532.001(a), (b)(8) (Vernon 2003). We refer to North Texas State Hospital and the Texas Department of Mental Health and Mental Retardation collectively as appellee.

. See Tex. Civ. Prac. & Rem.Code Ann. §§ 71.002-.004, 71.021 (Vernon 1997).

. Although this provision speaks in terms of waiver of immunity from liability, the Act also waives immunity from suit to the same extent. Id. § 101.025(a); Miller, 51 S.W.3d at 587.

. Salcedo and Lowe have been limited on other grounds, see Bossley, 968 S.W.2d at 342-43, but not based on their construction of this phrase.

. See Salcedo, 659 S.W.2d at 32-33 (holding immunity waived for claim that governmental unit negligently used electrocardiograph machine); Baston v. City of Port Isabel, 49 S.W.3d 425, 428-29 (Tex.App.-Corpus Christi 2001, pet. denied) (following Salcedo).

. See Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169, 171 (Tex.1989) (holding immuni*160ty waived for claim that epileptic, mentally challenged patient was allowed to swim without a life preserver); Lowe, 540 S.W.2d at 300 (holding immunity waived for football player’s claim that coach required him to play without knee brace); Overton Mem’l Hosp. v. McGuire, 518 S.W.2d 528, 529 (Tex.1975) (holding immunity waived for claim the patient was provided hospital bed without bed rails); see also McBride v. TDCJ-ID, 964 S.W.2d 18, 22 (Tex.App.-Tyler 1997, no pet.) (following Lowe and holding immunity waived for inmate’s claim that provision of barrel with no handles caused his injuries).

. Salcedo has been limited to its facts. See Bossley, 968 S.W.2d at 342. Robinson, Lowe, and McGuire "represent perhaps the outer bounds of what [the supreme court has] defined as use of tangible property,” and their precedential value 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 plaintiffs injuries.” Clark, 923 S.W.2d at 585.

. We decline to follow San Antonio State Hospital v. Cowan, 75 S.W.3d 19 (Tex.App.-San Antonio 2001, pet. granted). In that case, the San Antonio Court of Appeals held that hospital employees "misused” a suicidal patient’s suspenders and walker, which he used to commit suicide, by either not taking them from the patient upon his admission to the hospital or later allowing him to use them. Id. at 23. The court further held that the negligent provision of the walker and suspenders to the patient proximately caused his suicide. Id. Cowan’s reasoning is based primarily on McGuire, which is inapposite to Cowan’s facts, because there was no allegation in Co-wan that the suspenders and walker lacked an integral safety component. See id. at 20-21; supra n. 8.