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Torts Click here for the full text of this decision Allegations that the appellant failed to utilize proper, sterile food-preparation techniques when dealing with poultry and raw meat are not actionable under the Texas Tort Claims Act. FACTS:The University of North Texas (UNT) appeals the denial of its plea to the jurisdiction asserting sovereign immunity. Following a high school drill team camp on UNT’s campus, 58 campers, including Catherine Harvey, became very ill, suffering nausea, vomiting and bloody diarrhea. A doctor with the U.S. Center for Disease Control, Dr. John T. Brooks, determined that the camp participants had been poisoned by E. coli bacteria. Catherine experienced extreme complications from the poisoning, was hospitalized, and almost died. During the camp, UNT provided ice to the camp participants. UNT obtained the ice from the cafeteria ice-makers, transferred it to open garbage barrels and placed the barrels in various outside locations. UNT failed to provide scoops to remove the ice from the barrels, and consequently, the campers used their hands, their cups, and their water bottles to scoop the ice. UNT also provided a salad bar in its cafeteria, and bags of salad greens were often transferred to serving bowls on the salad bar directly from the bags without washing. Brooks’ report indicates that Brooks and two other CDC employees interviewed all campers and conducted an epidemiological investigation, an environmental investigation and a laboratory investigation. Rectal swabs and stool samples obtained from UNT’s cafeteria workers failed to reveal the presence of E. coli. Likewise, ice obtained from the cafeteria ice-makers did not reveal the presence of E. coli. The CDC investigation team eliminated some potential causes for the E. coli outbreak and ultimately concluded that the ice in the barrels and the salad bar were likely causes of the E. coli poisoning. Seventy-three percent of the campers who reported consuming ice from the barrels on any day became ill. HOLDING:The court affirms the trial court’s order denying UNT’s plea to the jurisdiction on the Harveys’ negligence claims concerning the ice barrels. The court reverses the trial court’s order denying UNT’s plea to the jurisdiction on the Harveys’ strict liability claims and the Harveys’ other negligence claims and renders judgment that UNT is immune from suit on those claims. A governmental unit may waive immunity under the condition of tangible personal property portion of Texas Civil Practice and Remedies Code sec. 101.021(2) if it provides equipment that is defective because it lacks an integral safety component. Here, the Harveys contend that UNT provided equipment that is tangible personal property, the ice barrels; that the ice barrels lacked an integral safety component, a scoop; and that this condition of the ice barrels provided by UNT caused Catherine’s E. coli poisoning and damages. The evidence shows that UNT was responsible for providing and did provide ice to the campers. UNT provided the ice in open trash barrels. “Tangible personal property ” means something that has a corporeal, concrete, and palpable existence. Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175 (Tex. 1994). The ice barrels meet this definition and therefore are tangible personal property. The term “condition ” is not statutorily defined, but has been judicially defined as “ either an intentional or an inadvertent state of being ” and as “ a particular mode or state of being of a thing. ” Webb County v. Sandoval, 88 S.W.3d 290 (Tex. App. � San Antonio 2002, no pet.). UNT’s cafeteria manager explained that ice barrels should have scoops for safety reasons; ice barrels without scoops are less safe because bacteria on hands gets on the ice. Thus, a scoop was an integral safety component of the ice barrels. The lack of a scoop was an intentional or inadvertent state, i.e., a condition, of the ice barrels. The next question is whether some relevant jurisdictional evidence exists that the lack of an ice scoop caused Catherine’s injuries. “Cause” under this section means proximate cause. Dallas County MHMR v. Bossley, 968 S.W.2d 339 (Tex.), cert. denied, 525 U.S. 1017 (1998). Wanda Lowe, UNT’s cafeteria manager, testified that scoops were necessary to prevent bacteria off of hands from getting into the ice and contaminating it. Brooks’ CDC report explained that the E.coli outbreak was likely caused by the ice that became contaminated in the barrels. Seventy-three percent of the campers who consumed ice from the ice barrels became ill. Dr. Wayne Shandera, the Harveys’ expert witness, opined that the contaminated ice also caused Catherine’s injuries. Thus, there is some evidence that the lack of an integral safety component, the scoop, led to Catherine’s injuries. The Legislature did not intend a waiver of immunity under the strict liability statute, so a plaintiff cannot use that statute to trip sec. 101.021(2)’s requirement that if the governmental unit were a private person it would be liable. The Harveys also pleaded that UNT was negligent by placing unwashed, prepackaged mixed-leaf greens on the salad bar, by failing to wash bean sprouts placed in a spinach salad, by undercooking food, by preparing poultry on the same counter top or cutting board as other food items, by failing to properly clean items used in the preparation of raw meat before using the items in other food preparation, and because its employees failed to wash their hands thoroughly after handling raw meats. These averments do not state claims within the Act’s limited waiver of sovereign immunity for a variety of reasons. The substance of the Harveys’ complaints concerning the mixed-leaf greens and bean sprouts is that UNT failed to use water to wash these items. These are allegations of a nonuse, not that UNT was negligent in its actual use of the lettuce and bean sprouts and not that it provided property that lacked an integral safety component. Even assuming water could be considered tangible personal property, claims involving a failure to use or the nonuse of property are not within the Act’s sovereign immunity waiver. Thus, the Harveys’ pleadings concerning UNT’s alleged failure to wash lettuce and bean sprouts do not state an actionable claim under sec. 101.021(2). The allegation that UNT undercooked food may constitute a “condition ” of the food under the Act. However, the jurisdictional evidence does not show that any specific food item was undercooked, that Catherine ate undercooked food, or that undercooked food caused Catherine’s injuries. Instead, the evidence shows a “ less than 1 in 50,000″ chance that Catherine’s E. coli poisoning was caused by something other than the ice. Thus, sec. 101.021(2)’s waiver provisions are not implicated by the Harveys’ undercooked food claim. The Harveys’ contentions concerning poultry, raw meat, and other food preparation likewise do not implicate a waiver of sovereign immunity. The substance of these allegations is that UNT failed to utilize proper, sterile food-preparation techniques when dealing with poultry and raw meat. These types of allegations are not actionable under the act. Finally, the Harveys’ claim that UNT’s employees negligently failed to adequately wash their hands does not allege a use or condition of tangible personal or real property. Therefore, this claim does not invoke a waiver of sovereign immunity. The trial court erred by denying UNT’s plea to the jurisdiction on these claims. OPINION:Walker, J.; Holman, Gardner and Walker, JJ.

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