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Robinson v. University of Texas Medical Branch at Galveston6/30/2005
This suit involves the mishandling of the remains of a deceased. Appellant, Helen Robinson ("Robinson"), appeals an order granting the plea to the jurisdiction of appellee, The University of Texas Medical Branch at Galveston ("UTMB"), wherein the trial court concluded that Robinson's claims sound in contract, not tort; consent for suit was not obtained, and thus, UTMB retains sovereign immunity from suit; and Robinson did not avail herself of her administrative remedies prior to suit, thus, preventing her from prosecuting her suit against UTMB.
Robinson contends in three issues that (1) UTMB's failure to properly return her husband's remains constitutes a tort arising from a duty to properly handle human remains; (2) the use of a body to train medical students constitutes the "use of property" such as to waive sovereign immunity; and (3) UTMB's failure to return her husband's body constitutes a breach of contract, and, thus, the waiver provisions of the Texas Tort Claims Act provide her relief from UTMB's immunity claims. We affirm.
BACKGROUND
Helen Robinson filed suit against UTMB for the mishandling of the remains of her deceased husband, Ray Robinson. Mr. Robinson donated his body to the Anatomical Board of the State of Texas with arrangements for disposition to be made by UTMB under the "UTMB Willed-Body Program." Prior to his death, he executed a document entitled "Will Form" which provided, among other provisions, for the cremation of his body on final disposition. By handwritten annotation, Mr. Robinson directed that after cremation his body be returned to his family. The agreement also contained an express relinquishment of rights and claims for liability against the Anatomical Board of the State of Texas and the receiving institution.
Mr. Robinson's body was delivered to UTMB upon his death. Later, Robinson received notification from UTMB that it was unable to return her husband's ashes as the ashes were commingled with other donors' ashes.
Robinson filed suit asserting a breach of contract claim, negligence, gross negligence for mental anguish, negligent supervision and constructive fraud. UTMB filed a plea to the jurisdiction alleging sovereign immunity, lack of legislative consent to sue, and that the suit fell outside the Texas Tort Claims Act as the body was not personal property. The plea to the jurisdiction was granted by the trial court.
STANDARD OF REVIEW
A governmental unit is immune from suit and liability unless the state has granted consent. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). A governmental entity's immunity from suit defeats a court's subject matter jurisdiction. Id. Thus, in a suit against a governmental unit, a plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a waiver of that immunity. See id. In determining whether a plaintiff has met this burden in a plea to the jurisdiction based on sovereign immunity, we look to the facts alleged by the plaintiff and the evidence relevant to the jurisdictional issue to determine whether the claim comes within a waiver of immunity. Id. In this case, it is undisputed that UTMB is a governmental unit and shares this governmental immunity. See Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976).
BREACH OF CONTRACT CLAIM
Robinson, in her third issue, argues that UTMB violated the agreement by not returning her husband's remains. She further argues that UTMB is not immune from suit for breach of contract by reason of sovereign immunity because of the performance by Robinson of the terms of the agreement. In response, UTMB argues that Robinson cannot prevail beca
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