dissenting.
On motion for rehearing, the original dissenting opinion is withdrawn and is replaced with the following opinion.
I respectfully dissent. The supreme court recently confirmed that the Texas Tort Claims Act should be liberally construed in favor of a waiver of immunity. Robinson v. Central Texas MHMR Center, 780 S.W.2d 169, 170 (Tex.1989). In keeping with that directive, I would reverse the summary judgment and allow a jury to assess the issues involved.
A governmental unit 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 ANN. § 101.021(2) (Vernon 1986). Ms. Delaney’s injury occurred because of a broken lock, a condition of real property that the University neglected to repair after several requests. Usually, the criminal conduct of a third party is a superseding cause relieving the negligent actor from liability. However, under Texas law, the tortfeasor’s negligence will not be excused where the criminal conduct is a foreseeable result of such negligence. Nixon v. Mr. Property Management Co., 690 S.W.2d 646, 550 (Tex.1985).
The trial court and the majority found that Ms. Delaney’s claims were barred by TEX.CIV.PRAC. & REM.CODE ANN. § 101.057(2) (Vernon 1986), the intentional tort exception to the Act. However, this exception applies only to torts committed by governmental employees. See Estate of Garza v. McAllen Indep. School Dist., 613 S.W.2d 526, 530 (Tex.Civ.App. — Beaumont 1981, writ ref’d n.r.e.) (dissenting opinion). It is therefore not applicable when the intentional tort is inflicted by a third party as in this case.
To this dissent I also add my belief that the state should be held liable for tortious acts resulting from functions that are proprietary in nature. Ms. Delaney was injured through an apparent act of negligence, and her cause of action should not be barred simply because her injury occurred at a state university rather than at a private institution or in an off-campus apartment. Underscoring this inequity is the fact that in Texas we do apply the proprietary/governmental analysis to certain governmental units but not to others. As the Indiana Supreme Court has noted:
It seems to us to be consistent in this principle of law and its application in this jurisdiction that if certain municipalities and the county governments are liable to the extent of the operation of proprietary functions, then there is no reason why the state as a principal should not likewise be liable for its proprietary function. It is of little concern to the injured party whether the injury was caused by a city, county or state.
Perkins v. State, 252 Ind. 549, 251 N.E.2d 30, 35 (1969).
Regarding the tort claims at issue in this case, I find the reasoning in Miller v. State, discussed in the majority opinion, to *740be persuasive. 62 N.Y.2d 506, 467 N.E.2d 493, 478 N.Y.S.2d 829 (1984). That court suggests that in determining the extent and scope of the state’s duties as a landlord, one must distinguish those liabilities attendant upon governmental activities which have displaced or supplemented traditionally private enterprises and are performed in a proprietary capacity from those which are and have always been considered governmental in nature. 62 N.Y.2d at 513, 467 N.E.2d 493, 478 N.Y.S.2d 829 (citations omitted). Duties relating to tenancy in buildings have traditionally been carried on through private enterprise. See id. at 514, 467 N.E.2d 493, 478 N.Y.S.2d 829. The Miller court concluded that the maintenance of minimal security measures such as keeping dormitory doors locked fell within the scope of the state’s proprietary function as a landlord.
Viewed in the context of proprietary and governmental functions as defined in Genzer v. City of Mission, 666 S.W.2d 116, 119-20 (Tex.App. — Corpus Christi 1983, writ ref’d n.r.e.) (also discussed in the majority opinion), maintenance of such minimal security measures at Settegast Dormitory is an activity performed primarily for the benefit of the inhabitants of the affected entity or agency, in this case, the students at the University of Houston. The housing operation itself is not mandated by the Education Code. Furthermore, it is supported by dormitory rentals. Gulf Regional Educ. Television Affiliates v. University of Houston, 746 S.W.2d 803, 806 (Tex.App. — Houston [14th Dist.] 1988, writ denied).
I agree with Ms. Delaney’s contention that the trial court erred in granting the University summary judgment on her claims for torts caused by the University during the course and scope of its proprietary activities in running a dormitory. If the state is engaged in a proprietary function, it should be on the same footing as any private individual without the shield of governmental immunity. See Bofysil v. State, 44 Mich.App. 118, 205 N.W.2d 222, 230 (1972). I would argue that Ms. Delaney has the right to have a trier of fact decide this issue as well. I would reverse the summary judgment and remand the cause for trial.