 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Gill v. Texas Department of Criminal Justice12/7/1995
The trial court dismissed appellant Anthony E. Gill's pro se, in forma pauperis lawsuit against the Texas Department of Criminal Justice, Institutional Division. Appellant asserted a claim under the Texas Tort Claims Act, TEX. CIV. PRAC. & REM. CODE ANN. Section(s) 101.021 (Vernon 1986). We affirm.
Appellant is an inmate serving 40 years at TDCJ. While working in the line force of the Ellis One unit clearing land in the town of Riverside, appellant was exposed to poison oak and contracted a rash. After the rash healed, dark splotches remained on appellant's skin. The physician assistant, Mr. Bachman, told appellant that there was no medication to remove the splotches, but they should fade after a year.
Appellant filed a negligence action against TDCJ alleging that a TDCJ employee neglected his responsibility articulated in institutional policy to provide safe working conditions for appellant by exposing appellant to known health hazards. He further alleges that the negligent acts and the injury occurred while appellant was using tangible property (various tools) supplied by TDCJ, which would allow him to sue under the Texas Tort Claims Act. Specifically, appellant contends that the supervisor of the work squad, Mr. Cobler, had been informed five months prior to the incident that appellant was allergic to poison oak, poison ivy and poison sumac. Further, Mr. Cobler was aware that appellant did not know what these plants looked like, and Mr. Cobler had assured appellant that he could identify those plants because he himself was also allergic to them. Mr. Cobler was aware appellant's squad was working around poison oak the first week of December 1994, yet Mr. Cobler negligently failed to inform appellant poison oak was in the area. Appellant suffered a rash for one week that caused him physical pain, swelling, and constant itching. The skin discoloration that remained caused appellant shame and humiliation.
TDCJ filed a motion to dismiss based on TEX. CIV. PRAC. & REM. CODE ANN. Section(s) 113.001 (Vernon Supp 1995). TDCJ argued that because of sovereign immunity and the failure of appellant to state a claim under the Texas Tort Claims Act, appellant's claim had no arguable basis in law, and therefore should be dismissed as frivolous. The trial court granted the motion to dismiss.
In his first and second points of error, appellant asserts the trial court abused its discretion because (1) a motion to dismiss is an "improper procedural tool" to dismiss appellant's lawsuit, and (2) appellant's claim has an arguable basis in law.
The trial court has broad discretion to dismiss a suit brought in forma pauperis at any time by finding the action to be frivolous or malicious. TEX. CIV. PRAC. & REM. CODE ANN. 13.001(a)(2) (Vernon Supp. 1995); Johnson v. Lynaugh, 796 S.W.2d 393, 394 (Tex. App. -- Tyler 1989), writ denied per curiam, 796 S.W.2d 705 (Tex. 1990). In finding an action frivolous or malicious, a court should look to whether (1) the action's realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; or (3) it is clear that the party cannot prove a set of facts in support of the claim. TEX. CIV. PRAC. & REM. CODE ANN. Section(s) 13.001(b).
When, as in the present case, the trial court dismisses a suit without a fact hearing, the court could not have determined the suit had no arguable basis in fact. Hector v. Thaler, 862 S.W.2d 176, 178 (Tex. App. -- Houston [1st Dist.] 1993, no writ); Birdo v. Williams, 859 S.W.2d 571, 572 (Tex. App. -- Houston [1st Dist.] 1993, no writ). The supreme court has held that, in such a case, we must consider whether the trial court properly deter
Page 1 2 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|