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Torts Click here for the full text of this decision Archibeque’s complaint that the death of the state hospital patient was caused by the failure of appellee’s staff to exercise sufficient care in monitoring the patient due to her suicidal history does not fall within the Texas Tort Claims Act’s limited waiver of immunity. FACTS:The appellant, Tonya M. Archibeque, individually and as heir of Janae Devries, appeals from the trial court’s judgment granting appellee’s plea to the jurisdiction and dismissing her wrongful death and survival action. In her sole issue on appeal, Archibeque contends appellee’s sovereign immunity from suit has been waived under the Texas Tort Claims Act because Devries’s death was the result of the use or misuse of tangible personal property. HOLDING:Affirmed. Governmental entities such as appellee are immune from suit unless the legislature has expressly consented to the suit. Absent legislative consent to sue a governmental entity, the trial court lacks subject matter jurisdiction over the case. The Texas Tort Claims Act provides a limited waiver of sovereign immunity, allowing suits to be brought against governmental agencies only in certain narrowly defined circumstances. Mere reference to the act in a plaintiff’s pleading does not establish the State’s consent to be sued and thus is not enough to confer jurisdiction on the trial court. Rather, the court “must look to the terms of the act to determine the scope of its waiver,” and then must determine whether the particular facts alleged in the case come within that scope. Archibeque contends that she pleaded sufficient facts to show that her claims fall within the act’s immunity waiver. She asserts that the act waives appellee’s immunity from suit as to her claims because her claims are based on appellee’s negligence involving the use or misuse of tangible personal property. Specifically, Archibeque alleges that appellee was negligent in providing Devries, who had a history of suicidal tendencies, a plastic trash bag and shoe laces, which she used to commit suicide. Archibeque also alleges that appellee’s employees negligently failed to use a flashlight to monitor Devries during sleeping hours and negligently failed to properly diagnose Devries’s condition and mental status in her chart. To state a claim under sec. 101.021(2), the plaintiff must allege that 1. property was used or misused by a governmental employee; and 2. the use proximately caused personal injury or death. “Use” means “to put or bring into action or service; to employ for or apply to a given purpose.” A mere allegation of use by a governmental employee or the involvement of property is insufficient to state a claim for which immunity has been waived under the act; rather, the use must have proximately caused the injury or death. Although the degree of involvement is difficult for courts to discern in certain cases, the rationale and holdings of supreme court decisions make clear that there must be a close causal relationship between the condition or use of the property and the resulting injury. “Property does not cause injury if it does no more than furnish the condition that makes the injury possible.” In this case, Archibeque asserts that appellee negligently used the trash bag and shoe laces because appellee furnished them to Devries, who had a history of suicidal tendencies, and failed to remove them from her room. Archibeque does not explain what appellee used the trash bag and shoe laces for, but presumably they were employed for their usual purposes: to collect trash and tie shoes. Archibeque does not contend that Devries’s death was caused by either the collection of trash or the tying of her shoes; thus, Archibeque has not alleged that Devries’s death was proximately caused by appellee’s use or misuse of the trash bag and shoe laces. The mere presence of the trash bag and shoe laces in Devries’s room did no more than furnish the condition that made her death possible; it did not kill Devries or cause her to engage in suicidal conduct. Although Devries’suse of the trash bag and shoe laces were part of a tragic sequence of events that ended in her death, appellee’s alleged use of these items was too attenuated from her death to be said to have caused it. Archibeque does not contend that appellee misused medical equipment or that the trash bag and shoe laces in question lacked an integral safety component. The true substance of Archibeque’s complaint is that Devries’s death was caused, not by appellee’s use of the trash bag and shoelaces, but by the failure of appellee’s staff to exercise sufficient care in monitoring Devries due to her suicidal history. This alleged failure does not fall within the act’s limited waiver of immunity. Likewise, Archibeque’s allegations that appellee failed to use appropriate flashlights to adequately check on Devries during sleeping hours; negligently failed to note in Devries’s chart her presence during room checks; and negligently failed to properly diagnose Devries’s condition and mental status in her chart do not state a claim under the act for two reasons. First, these averments are simply allegations of the nonuse of property: the failure to use a flashlight and Devries’s medical chart. The nonuse of property cannot support a claim under the act. Second, medical information and the paper on which it may or may not be written is not tangible property under the act. This is true whether or not the information and paper were properly used. OPINION:Cayce, C.J.; Cayce, C.J., Gardner and Walker, JJ. Walker, J. dissenting. DISSENT:Walker, J. “I respectfully dissent. I cannot agree with the majority’s proximate cause analysis for two reasons. First, I cannot agree with the majority’s conclusion that Tonya Archibeque failed to properly plead proximate cause. Second, I cannot agree with the majority’s holding that North Texas State Hospital’s use of the trash bag in Janae Devries’s room did no more than furnish the condition that made her death possible and was too attenuated from Devries’s death to be said to have caused it. I would hold that Archibeque pleaded a waiver of sovereign immunity, reverse the trial court’s judgment, and remand this case to the trial court. . . . “Here, taking as true Archibeque’s pleading that the Hospital furnished the trash bag to Devries, who had a history of suicidal tendencies, by placing it in Devries’s hospital room and that while Devries was a patient of the Hospital she sustained a fatal injury by placing the trash bag over her head, there is no time gap, there are no intervening events, and there are no intentional acts by third parties between the Hospital’s alleged negligent use of the trash bag and Devries’s injuries. The Hospital allegedly negligently used the trash bag for the collection of trash in Devries’s hospital room; while the trash bag was being used, Devries, a suicidal patient, killed herself with it. Unlike Union Pumpand Bell, the negligently caused event was not over when the plaintiff’s injuries occurred. Unlike Bossleyand Koehler, Devries did not escape the Hospital’s custody, run away, and then leap in front of an oncoming truck in Bossley’s case or become the victim of a sexual assault in Koehler’s case. Devries was at the Hospital and in the Hospital’s care when she died. Unlike Whitleyand Lee, the substance of Archibeque’s complaint is not the failure to protect Devries from a third party. Archibeque’s complaint is that the Hospital negligently used a trash bag in the room of a suicidal patient. “The Hospital’s alleged negligent use of a trash bag here is simply not so remote or so attenuated from Devries’s death that as a matter of law it cannot constitute a proximate cause of Devries’s death. None of the Whitley, Bossley, Union Pump, Bell, Koehler, or Leetoo-remote-to-constitute legal causation facts are present here.(37) No time gap exists between the Hospital’s alleged negligence and Devries’s injuries. No intervening events occurred between the Hospital’s alleged negligence and Devries’s injuries. No intentional acts occurred by a third party between the Hospital’s alleged negligence and Devries’s injuries. No attenuating facts exist at all on the record before us. A causal nexus exists between the Hospital’s use of the trash bag and Devries’s death. A person of ordinary intelligence would have anticipated the danger of placing a trash bag in the room of a suicidal patient and the Hospital’s use of the trash bag was a substantial factor in bringing about Devries’s death that would not otherwise have occurred. Thus, I cannot agree with the majority’s conclusion that the Hospital’s use of the trash bag in Devries’s room was as a matter of law too attenuated from Devries’s death to be said to have caused it.”

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