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University of Texas Health Science Center v. Schroeder12/8/2005
Appellant, the University of Texas Health Science Center (UT), brings this interlocutory appeal from the trial court's denial of its plea to the jurisdiction in favor of appellee, Terry Schroeder. In three issues on appeal, UT argues that the trial court erred in denying its plea to the jurisdiction because (1) the only use of tangible personal property alleged to have caused injury was used by a student and not an employee; (2) the negligent supervision claim had no allegation or showing that any of UT's employees used tangible personal property which caused injury; and (3) the injuries complained of were not caused by the negligent use of tangible personal property.
We reverse the cause and render judgment.
Background
In January 1998, Schroeder's doctor referred her to UT for the treatment of gum disease. A graduate student, Dr. Nicholas Tsoukalas, was assigned to handle Schroeder's gum disease under the supervision of Dr. Frederick Silverman. Dr. Tsoukalas recommended that Schroeder undergo a full mouth reconstruction that consisted of (1) the grafting of gum tissue; (2) crown lengthening surgeries; (3) multiple tooth preparations; and (4) the crowning of prepared teeth. The dental procedures took over two and one-half years to complete and cost Schroeder over $16,000, payable to UT. Schroeder also alleged that she paid an additional $100,000 to doctors outside UT.
Schroeder sued UT in March 2002, alleging medical malpractice. In her first amended petition, she added a claim of battery against Dr. Frederick Silverman. On November 20, 2003, UT filed its plea to the jurisdiction. UT and Silverman also filed a motion for summary judgment on January 27, 2004. The trial court denied UT's plea to the jurisdiction on February 18, 2004. UT filed a motion for reconsideration, which the trial court denied on March 13, 2004. UT appeals from this order.
Governmental Immunity
As a governmental unit, UT is immune from suit unless it consents to suit. See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3) (Vernon 2005) (defining "governmental unit"). Governmental immunity from suit defeats a trial court's subject-matter jurisdiction. Whitley, 104 S.W.3d at 542. In a suit against a governmental unit, a plaintiff must, therefore, affirmatively demonstrate the trial court's jurisdiction by alleging facts demonstrating a waiver of immunity. Id. In our review of the trial court's rulings on UT's plea to the jurisdiction based on governmental immunity, we determine, from the facts alleged by the plaintiff and from the evidence relevant to the jurisdictional issues, whether the plaintiff's claims fall within a waiver of immunity. Id.
Under the Texas Tort Claims Act (TTCA), a state governmental unit, such as UT, is liable for personal injuries "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 2005); see id. § 101.025 (Vernon 2005) (waiving governmental immunity from suit "to the extent of liability created by this chapter"). The Supreme Court of Texas has held that "the Tort Claims Act does not create a cause of action; it merely waives sovereign immunity as a bar to a suit that would otherwise exist." City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997).
Contentions of the Parties
In its plea to the jurisdiction, UT argued that Schroeder did not plead facts that showed a waiver of UT's immunity. Specifically, UT pointed out that Dr. Tsoukalas was not a
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