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University of Texas Health Science Center v. Schroeder12/8/2005
rom the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) 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(1)(A)(B), (2).
The Act defines an "employee" as:
a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of the independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.
Tex. Civ. Prac. & Rem. Code Ann. § 101.001(2) (Vernon 2005).
The evidence indisputably shows that Dr. Tsoukalas was a graduate student at UT and received no compensation from UT. Schroeder does not argue to the contrary. Rather, Schroeder asserts that subsection two of section 101.021 is different from subsection one because subsection two does not contain the term, "paid employee," thus indicating the legislature's intent that "paid employee" is not a prerequisite to waive UT's governmental immunity.
Although the term "paid employee" is not contained within subsection two, the Supreme Court of Texas has interpreted subsection two of section 101.021 to require that a governmental employee use the tangible personal property. See San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004) (holding that the requirement of a governmental unit itself to be the user "is not expressly stated in section 101.021, but we have read it into section 101.021(1), which waives immunity for the use of motor-driven vehicles and equipment, and there is no reason to construe 'use' differently in section 101.021(2)."); DeWitt v. Harris County, 904 S.W.2d 650, 653--54 (Tex. 1995). Accordingly, we hold that Schroeder did not demonstrate a waiver of governmental immunity by UT.
We sustain UT's first issue on appeal.
Negligent Supervision
In its second issue on appeal, UT contends that the trial court erred in denying its plea to the jurisdiction on Schroeder's negligent supervision claim. Schroeder contends that even if Dr. Tsoukalas was not UT's employee, UT waived its immunity because a paid employee (Dr. Silverman) failed to "competently supervise a state student who, in turn, injures another with tangible personal property." Schroeder cites to Texas A&M Univ. v. Bishop, 105 S.W.3d 646, 656 (Tex. App.---Houston [14th Dist.] 2002). When Schroeder filed her brief, the Bishop opinion from our sister court was still good law. Since then, however, the supreme court has reversed the Bishop opinion. See Texas A&M Univ. v. Bishop, 156 S.W.3d 580 (Tex. 2005). The supreme court's opinion stated that "To the extent Bishop claims the faculty advisors allowed the Wonios to provide the knife by failing to properly supervise the production, such negligent supervision, without more, does not constitute a 'use' of personal property that would waive TAMU's immunity under section 101.021(2)." Id. at 583.
Moreover, we have previously held that allegations of negligent supervision do not satisfy the limited waiver of immunity contained within the act. Texas Dep't of Family & Protective Servs. v. Atwood, No. 01--02--01108--CV, 2004 WL 2823135, at *3--4 (Tex. App.---Houston [1st Dist.] Dec. 9, 2004, pet. denied); City of Houston v. Rushing, 7 S.W.3d 909, 915 (Tex. App.---Houston [1st Di
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