concurring.
I concur in the result the majority reaches but I disagree with the court’s resolution of all the claims alleged in Mrs. Robinson’s petition except for the breach of contract and special relationship claims.1 Mrs. Robinson’s petition alleged claims for traditional negligence, gross negligence, negligent supervision, negligence per se, special relationship, and constructive fraud. In each but the special relationship claim, the majority finds Mrs. Robinson cannot pursue these claims because she has not alleged a use of tangible personal property for which the Texas Tort Claims Act waives immunity.2 I would hold that Mrs. Robinson could not pursue these claims because the remaining claims, although pleaded as tort claims, are all contractually based and thus subject to Chapter 2260’s administrative prerequisites.3
The Texas Tort Claims Act Only Waives Immunity for Certain Tort Claims
A plaintiff wishing to avail himself of the Texas Tort Claims Act’s waiver of sovereign immunity must clear two hurdles. First, the plaintiff must plead a legally cognizable tort cause of action. This is because the Texas Tort Claims Act does not create a cause of action; the Act only waives the state’s sovereign immunity in limited situations. City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex.1997); Seamans v. Harris County Hosp. Dist., 934 S.W.2d 393, 395 (Tex.App.-Houston [14th Dist.] 1996, no writ). And second, the plaintiffs claim must be one for which the legislature has waived liability.4 Tex. Civ. PRAC. & Rem.Code § 101.021 (specifying the types of tort claims for which a state governmen*373tal unit is liable). If, as in Mrs. Robinson’s case, the plaintiff has not alleged a cognizable tort cause of action, the Tort Claims Act cannot waive the state’s immunity, even if the plaintiff could satisfy the other requirements.
The Texas Tort Claims Act Does Not Apply Because Mrs. Robinson’s Claims are Contractually Based
Mrs. Robinson’s claims, although pleaded as tort causes of action, are in fact, all contractually based. All of Mrs. Robinson’s claims stem from UTMB’s failure to use Mr. Robinson’s body for medical research and then to return his ashes to his family as promised. Because the only duties UTMB owed to the Robinsons arise from the parties’ contract, I would conclude that all of Mrs. Robinson’s claims are contractually-based.
1.Determining the source of UTMB’s duties
As mentioned above, Mrs. Robinson alleged a negligence claim, a gross negligence claim, negligent supervision, negligence per se, a special relationship claim, and constructive fraud. We determine whether a claim sounds in tort or contract by looking to the source of the legal duty. See DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 105 (Tex.1999); Univ. of Tex. Med. Branch at Galveston v. Harrison, No. 14-02-01276-CV, 2003 WL 21803314, *3 (Tex.App.-Houston [14th Dist.] Aug. 7, 2003, pet. denied). If the parties would owe no duties to one another but for the contract, the claim is contractually based. Harrison, 2003 WL 21803314 at *3 (“[I]f the defendant’s conduct would give rise to liability only because it breaches the parties’ agreement, the plaintiffs claim ordinarily sounds only in contract.”) (citing DeWitt, 1 S.W.3d at 105). But, if the parties would owe duties to one another even in the absence of a contract, the claim sounds in tort. Id. (‘Where a defendant’s conduct would give rise to liability independent of the fact that a contract exists ... the plaintiffs claim may also sound in tort.”) (citing DeWitt, 1 S.W.3d at 105). Thus, I would first determine whether each of Mrs. Robinson’s claims sounds in tort, so that the Tort Claims Act might apply, or in contract, so that Chapter 2260 might apply.
2. The negligence claims
In her negligence claims, Mrs. Robinson alleges UTMB had a duty to use her husband’s body only for medical research and to return her husband’s ashes to the family. These duties clearly arise from the Willed Body Form that Mr. Robinson signed. This contract outlined and limited the duties UTMB owed to Mr. and Mrs. Robinson. In the absence of the parties’ contractual agreement for the donation of Mr. Robinson’s body for specified purposes and UTMB’s return of the body to his family, UTMB would owe no duty to the Robinsons to use his body for medical research or to ensure the return of his ashes to the family. Accord, Harrison, 2003 WL 21803314, at *3 (“Apart from the duties created by [the willed body form], appellees have not cited and we have not found, any Texas case law recognizing a tort duty that UTMB owed to them and allegedly breached.”). Thus, even though Mrs. Robinson called her claims negligence claims, at their heart, they are contractual and complain of the breach of the parties’ agreement.
3. The special relationship claim
I also would find that Mrs. Robinson’s special relationship claim is contractually based. A special relationship claim requires (1) a contractual relationship between the parties; (2) the plaintiffs particular susceptibility to emotional distress; and (3) the defendant’s knowledge of the plaintiffs particular susceptibility based on *374the circumstances. Lions Eye Bank of Tex. v. Perry, 56 S.W.3d 872, 877 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (citing Johnson v. Standard Fruit & Vegetable Co., 984 S.W.2d 633, 638 (Tex. App.-Houston [1st Dist.] 1997), rev’d on other grounds, 985 S.W.2d 62 (Tex.1998)). The contract itself is the basis of the duty to a deceased’s family to properly handle the deceased’s remains. See Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904, 906 (Tex. Civ.App.-Houston [14th Dist.] 1969, writ refd n.r.e.) (finding that the plaintiffs “basic allegation is that the defendant failed to perform according to its contractual responsibility”). In the absence of a contractual relationship, a plaintiff cannot maintain a special relationship claim. Lions Eye Bank, 56 S.W.3d at 877 (finding plaintiffs were precluded from establishing the defendant owed them a duty not to negligently inflict mental anguish because there was no contractual relationship). Because a special relationship claim arises solely from the parties’ contractual relationship, Mrs. Robinson’s special relationship claim is also contractually based.
4. The constructive fraud claim
And finally, I would find that the constructive fraud claim is contractually based. Constructive fraud is the breach of a legal or equitable duty which the law declares fraudulent because it violates a fiduciary relationship. Jean v. Tyson-Jean, 118 S.W.3d 1, 9 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (citing Archer v. Griffith, 390 S.W.2d 735, 740 (Tex. 1964)). Mrs. Robinson alleges UTMB committed a constructive fraud by not returning her husband’s ashes to her after using his body for medical research. Here, as with the other claims, the source of these duties was the contract between the parties. Mrs. Robinson has not provided any Texas authority for finding that UTMB owed other legal or equitable duties to her husband or to her. Therefore, the constructive fraud claim, like the others, is also contractually based.
Conclusion
Because all of Mrs. Robinson’s claims are contractually based, she was required to satisfy Chapter 2260’s administrative prerequisites to proceed with her claim against UTMB. Because she has not done so, I would hold that UTMB has not waived its sovereign immunity and the trial court properly granted UTMB’s plea to the jurisdiction.
. I agree with the majority's conclusions that (1) Mrs. Robinson cannot proceed with her claims because UTMB has not waived its sovereign immunity; (2) the trial cotut properly granted UTMB's plea to the jurisdiction; and (3) Mrs. Robinson could not proceed with her breach of contract claim because the failure to comply with Chapter 2260’s administrative prerequisites has foreclosed that avenue of recovery.
. The majority holds that Mrs. Robinson has not alleged a use because the only intended use of the body was as a cadaver; once that use was completed there could be no further use. Their contract specifically stated that the body's ashes should be returned to the family. I believe that UTMB’s improper "use” of the ashes by mingling them with the ashes of other donated bodies qualifies as a use of tangible personal property. But, even though Mrs. Robinson may have alleged a use under the Act, she still cannot prevail over the plea to the jurisdiction for the reasons listed infra.
. The majority holds that Mrs. Robinson cannot pursue her special relationship claim for this very reason. I agree with the majority's reasoning and result with respect to the special relationship claim. However, I believe that all of Mrs. Robinson’s other claims are subject to the same analysis.
.The Texas Tort Claims Act waives immunity in two situations, stating:
A governmental unit in the state 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 § 101.021(1).