 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Hampton v. University of Texas-M.D. Anderson Cancer Center9/23/1999
. Hatley, 887 S.W.2d 4, 14 (Tex. 1994) ("non-use of available drugs during emergency medical treatment is not a use of tangible personal property that triggers waiver of sovereign immunity").
The Court's Ruling
Under the applicable standards of review, we are required to interpret the allegations of the petition in the light most favorable to the Hamptons. Texas Ass'n of Bus., 852 S.W.2d at 446; Fireman's Ins. Co., 909 S.W.2d at 542. Applying this standard of review, we conclude that the Hamptons' petition does allege an injury caused by "a condition or use of tangible property" within the meaning of the Texas Tort Claims Act. Tex. Civ. Prac. Rem. Code Ann. ยง101.021(2) (Vernon 1997).
The Hamptons' petition alleges two bases for recovery under the Texas Tort Claims Act. The Hamptons first assert that the hospital negligently provided Mr. Hampton with a hospital bed that was defective because it lacked certain "integral safety components," i.e., raised bed rails that would have prevented Mr. Hampton from falling out of bed and an activated alarm sensor that would have alerted the nursing staff to his condition.
The Hamptons also allege that the hospital negligently misused its property because it failed to activate the safety equipment after providing the bed to Mr. Hampton.
Construing the Hamptons' petition in their favor, we infer from their allegations that the hospital, not Mr. Hampton, retained control of the bed's safety equipment both before and during the time the bed was furnished to him.
We find no significant difference in this case and those in which governmental units provided personal property lacking some integral safety component. See, e.g. Robinson, 780 S.W.2d at 169 (swimming attire without life preserver); Lowe, 540 S.W.2d at 299 (football uniform without taping and knee braces); Overton, 518 S.W.2d at 529 (bed without safety rails). Here, the hospital provided Mr. Hampton a hospital bed with safety equipment attached but that equipment did not function unless and until it was activated by the hospital. The Hamptons allege (a) the bed was dangerously defective when provided to Mr. Hampton because its safety equipment had not been activated, and (b) there was a misuse of property by the hospital because the hospital did not activate the safety equipment after providing the bed to Mr. Hampton. See Salcedo, 659 S.W.2d at 32-33 (failure to properly use an electrocardiogram graph); Wheeler v. Yettie Kersting Mem'l Hosp., 866 S.W.2d 32, 45-46 (Tex. App.-Houston [1st Dist.] 1993, no writ) (failure to use information in a medical chart); Green v. City of Dallas, 665 S.W.2d 567, 570 (Tex. App.-El Paso 1984, no writ) (failure to properly use medical equipment); Mokry v. University of Tex. Health Science Ctr., 529 S.W.2d 802, 804 (Tex. Civ. App.-Dallas 1975, writ ref'd n.r.e.) (failure to use certain laboratory equipment during treatment). We overrule the hospital's argument that the failure to activate the safety equipment constitutes a simple "non-use" of the property. A failure to properly use property does not equate to mere non-use. If the hospital had really not used the bed, it would have retained possession and not have provided the bed to Mr. Hampton. See Kassen, 887 S.W.2d at 15 (Phillips, C.J., Concurring in relevant part).
We conclude that the allegations in the Hamptons' petition will support a cause of action under the Texas Tort Claims Act. We accordingly reverse the trial court's order dismissing the case with prejudice and remand the cause for further proceedings.
Frank G. Evans Justice
Publish. Tex. R. App. P. 47.
Page 1 2 3 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|