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Torts No. 04-03-00021-CV, 6/11/2003. Click here for the full text of this decision FACTS: This is an appeal from an order denying a plea to the jurisdiction filed by a governmental unit. Donna and Gary McMillion brought a negligence suit against Bexar County and Bexar County Sheriff Ralph L�pez (collectively “Bexar County”) under the Texas Tort Claims Act (“TTCA”), when Donna McMillion was injured by inmate Jimmy Ray Gorman during his escape from custody. Bexar County filed a plea to the jurisdiction asserting sovereign immunity. The trial court denied the motion, and Bexar County filed this interlocutory appeal. HOLDING: Reversed and rendered. The Texas Tort Claims Act provides a limited waiver of sovereign immunity under certain narrowly defined circumstances. The statute allows for governmental liability in three general areas: 1. use of publicly owned automobiles; 2. premises defects; and 3. injuries arising out of conditions or use of property. The TTCA provides that a governmental unit is liable for: 1. property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: A. the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and 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. Texas Civil Practice and Remedies Code �101.021. In the present case, the McMillions allege waiver under subsection two of the statute. Therefore, to state a claim, the McMillions must allege: 1. some use or misuse of tangible personal or real property; and 2. their personal injuries were proximately caused by the use or misuse of such property. The word “use” means “to put or bring into action or service; to employ for or apply to a given purpose.” Claims involving a failure to use, or the non-use of property, are not within the waiver of sovereign immunity. With respect to causation, a party must show more than mere involvement of property. The McMillions sued Bexar County alleging that the County’s negligence allowed a dangerous criminal to escape custody and terrorize them. The McMillions claim their pleadings are sufficient to waive sovereign immunity under �101.021(2) because their theory of liability is based on the use/misuse of real and personal property. Specifically, the McMillions allege sovereign immunity is waived because they claim Bexar County was negligent in: 1. failing to use tangible personal property, i.e., handcuffs and shackles, to restrain Gorman; 2. “furnishing Gorman with inadequate and/or defective tangible personal property in the form of restraints”; 3. allowing Gorman to use the Clinic’s bathroom door to facilitate his escape from the clinic; and 4. failing to supervise Gorman while outside the confines of the Bexar County Jail. The McMillions contend sovereign immunity is waived because they alleged Deputy Gomez’s non-use of handcuffs and shackles proximately caused their injuries. The non-use of property, however, does not waive sovereign immunity. Therefore, the McMillions’ non-use allegation is insufficient to waive sovereign immunity. The McMillions argue that their case is analogous to Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex. 1976) and Robinson v. Central Texas MHMR Center, 780 S.W.2d 169 (Tex. 1989). In Lowe, Lowe suffered a knee injury while playing football for the university after a coach ordered him to remove his knee brace and re-enter a game without it. The Texas Supreme Court determined that Lowe’s knee brace was as an integral part of his uniform as his helmet or shoulder pads. The court therefore held that the State waived immunity by providing Lowe with a defective uniform, i.e., a uniform without a knee brace. In Robinson, MHMR employees took several patients to swim at a lake. MHMR was aware that Robinson suffered from epileptic seizures that occasionally caused him to lose consciousness. MHMR failed to furnish Robinson with a life preserver, and Robinson subsequently drowned. The Supreme Court concluded that “[a] life preserver was just as much a part of Robinson’s swimming attire as the knee brace was part of the uniform in Lowe.” Thus, the court held MHMR waived its immunity. The court believes the McMillions incorrectly analogize this case to Loweand Robinson. The Supreme Court has expressly stated that “[t]he precedential value of these cases is . . . limited to claims in which a plaintiff alleges that a state actor has provided property that lacks an integral safety component and that the lack of this integral component led to the plaintiff’s injuries.” Although the McMillions’ amended petition also claims Deputy Gomez was negligent “in furnishing Gorman with inadequate and/or defective tangible personal property in the form of restraints,” the gravamen of their “restraint” complaint is that Deputy Gomez’s non-use of restraints led to their injuries. Therefore, the McMillions’ reliance on Loweand Robinsonis misplaced, and their allegation regarding the “furnishing of defective restraints” is insufficient to waive sovereign immunity. The McMillions also rely on University of Texas Medical Branch Hospital at Galveston v. Hardy, 2 S.W.3d 607 (Tex. App. – Houston [14th Dist.] 1999, pet. denied), in support of their “restraint” complaint. The McMillions’ reliance on Hardyis equally misplaced because Hardyconcerns the use/misuse of property. In Hardy, one of the hospital’s patients was connected to a cardiac monitor to monitor her heart following bypass surgery. Unfortunately, the hospital failed to pay proper attention to the patient’s cardiac monitor. When the monitor signaled that the patient was having heart complications, hospital staff failed to respond in a timely manner. The patient subsequently died of the injuries she sustained as a result of the hospital’s untimely response to her monitor. The Hardycourt determined that the “hospital’s decision to put the cardiac monitor into service for the purpose of monitoring decedent’s heart, and the hospital employee’s subsequent failure to pay proper attention to the monitor, constitute a use or misuse, of tangible personal property.” As previously discussed, the essence of the McMillions’ “restraint” complaint is the non-use of property; therefore, Hardyis distinguishable. Based on the foregoing, the court concludes the McMillions’ allegations do not state a claim against Bexar County for which the TTCA waives sovereign immunity. Consequently, it sustains Bexar County’s sole issue, and reverses the trial court’s order denying Bexar County’s plea to the jurisdiction and render judgment dismissing the suit against Bexar County. OPINION: Stone, J.; Stone, Duncan and Angelini, JJ.

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