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Martinez v. City of Brownsville8/31/2001
ourts that the distinction between non-use and the failure to provide something with safety components is difficult to draw, we conclude that the instant case implicates more than the mere non-use of the paper garments. See Miller, 2000 Tex. LEXIS at *14 (Hecht, J. concurring)(discussing difficulty of applying "use" of property standard under the Tort Claims Act).
Formulation or Implementation of Policy
Third, the City argues that the decedent's death was caused by the negligent formulation of policy. With regard to governmental liability for policy decisions, sovereign immunity is preserved for the negligent formulation of policy, but waived for the negligent implementation of policy. City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995);State v. Terrell, 588 S.W.2d 784, 787-88 (Tex. 1979); see City of San Augustine v. Parrish, 10 S.W.3d 734 (Tex. App.-Tyler 1999, pet. dism'd w.o.j.)(negligent implementation of governmental policy in undertaking training, but failing to adequately train and supervise); City of Waco v. Hester, 805 S.W.2d 807, 812-13 (Tex. App.-Waco 1990, writ denied)(failing to follow city policy regarding segregation of certain inmates related to policy implementation by jailers);Forbus v. City of Denton, 595 S.W.2d 621, 623 (Tex. Civ. App.-Fort Worth 1980, writ ref'd n.r.e.)(deciding type of mattress to provide to prisoners related to policy implementation). We agree with the City that, to the extent that Martinez's claims relate to the formulation of policy rather than the implementation of policy, her claims must fail. Second, to the extent that she is generally claiming that the City failed to furnish proper training and instruction to its employees, this claim will also fail. See Texas Dept. of Public Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001)(negligent training claim did not involve requisite tangible personal property).
However, plaintiff's petition and response clearly raise fact issues regarding the City's negligent implementation of policy regarding the use or misuse of tangible property. As discussed above, the jailers failed to follow the jail's policy regarding the provision of paper garments to Reyes.
Moreover, the jailers had a policy of closely monitoring suicidal inmates. We agree that under many circumstances the jailers' failure to monitor could be considered a discretionary function and therefore not actionable under the Tort Claims Act. See e.g., City of Coppell v. Waltman, 997 S.W.2d 633, 637 (Tex. App.-Dallas 1998, no pet.). In this case, however, the conflicting deposition testimony raises the issue that the physical focus of the camera covering Reyes's cell was deficient. As noted previously, Castro and Garcia testified that the camera monitoring Reyes's cell did not cover the area on the bars where he hung himself. Garcia even testified that she could not see Reyes via monitor even after being told that he had hung himself. However, according to Rios, the camera covered the area where Reyes hung himself, and according to his investigation, Castro and Garcia failed to see Reyes because "they were busy doing other functions in the jail."
Further, Martinez's petition and response show that the jailers failed to follow their own policy regarding the provision of medicine to Reyes. With regard to the provision of medications, the law is clear that the failure to provide medication or the failure to provide appropriate medication is not actionable under the tort claims act. See Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1996)(failure to provide specific form of medication not actionable); Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994)(failure to provide medication constituted nonuse). Howe
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