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Injuries proximately caused by a negligent placing of razor wire in locations where a person might accidentally come into contact with it are also proximately caused by a use of tangible property under circumstances where a private person would be liable. The TTCA waives sovereign immunity for appellant’s negligence claims. Click here for the full text of this decision FACTS:Thomas Retzlaff, an inmate in the custody of the Texas Department of Criminal Justice, sued the TDCJ for alleged injuries suffered in two events. In the first, Retzlaff was physically injured when, during a rec yard game, he slid into a razor-wire fence. The fence had been erected at a specific location to protect what might be perceived as a vulnerable point for potential escapes. Prisoners had warned verbally and in writing that they were prohibited from coming into contact with the fence. In the other incident, Retzlaff sued the TDCJ, one named individual and one Jane/John Doe individual, for conversion, unlawful takings, civil rights violations under 42 U.S.C. �1983, breach of fiduciary duty, theft by a public servant, negligence and gross negligence. Retzlaff claimed the two individuals made unauthorized withdrawals from his prisoner’s account. After filing a response, TDCJ filed a summary judgment motion, which was asserted a statute of limitations defense. Two weeks later, TDCJ filed a “Supplement to It’s [sic] Motion for Summary Judgment” adding sovereign immunity as a defense. Upon learning that Retzlaff was not proceeding as an indigent, as they originally thought, TDCJ asked the trial court to postpone the summary judgment hearing, which the court did. TDCJ then filed a “Second Supplement to Its Motion for Summary Judgment” that was basically a rewritten pleading reasserting the prior defenses and adding defenses of no duty and lack of jurisdiction. Retzlaff filed a response and twice made objections, but the trial court never ruled on them. Instead, the trial court entered summary judgment for TDCJ. Retzlaff raises several procedural and substantive issues on appeal. HOLDING:Affirmed. The court rejects Retzlaff’s argument that because the trial court’s summary judgment order only referred to TDCJ’s original motion for summary judgment, not its supplemental motion, then summary judgment is limited to the defenses raised therein. The court rules that it is “obvious” from TDCJ’s second supplemental motion that it meant to amend its original motion for summary judgment. TDCJ merely mistitled its second supplemental motion for summary judgment, and Retzlaff did not except to the misnomer, so the latter motion is considered an amendment to the original motion. And because the amended motion asked for summary judgment on all of Retzlaff’s claims, the trial court’s judgment did not grant more relief than what was requested by TDCJ. The court goes through the possible ways the government could be liable to Retzlaff if it were a private party. First, the razor-wire barrier was not a premises defect. Defect is defined as a “an imperfection, shortcoming, or”want of something necessary for completion,’ ” none of which apply here, the court holds: “ The portion of the perimeter fence into which appellant fell was complete.” The fence was not a special defect, either. The TCA defines a defects in terms of highways, and in City of Grapevine v. Roberts, 946 S.W.2d 841 (Tex. 1997), courts are instructed to construe other special defects to be of the same kind or class as the ones mentioned in the statute. Razor wire on a prison fence is not expressly mentioned in the definition of special defect, and it is not of the same kind or class as the ones expressly mentioned in the statute, the court holds. As TDCJ could not be liable to Retzlaff on any defect theory, the court then examines whether it could be liable in negligence and therefore waive immunity. “We believe that injuries proximately caused by a negligent placing of razor wire in locations where a person might accidentally come into contact with it are also proximately caused by a use of tangible property under circumstances where a private person would be liable. Therefore, we hold that the TTCA waives sovereign immunity for appellant’s negligence claims.” However, the court also concludes that TDCJ did not owe a duty to Retzlaff to place the razor wire in a less accessible place or to construct warnings or barriers in front of it. The court declines to impose a duty on TDCJ to make safe a barrier or deterrent “whose very purpose” requires them to be dangerous. Further, the risk of the fence was mitigated by a general warning to the inmates not to go near it. And, it would place to great a burden on TDCJ to require it to place additional barrier around the razor wire. The court therefore affirms the summary judgment on sovereign immunity grounds. The court next holds that the TCA waives immunity for property damages only when the damage arises out of the operation of a motor vehicle and when a government employee would be personally liable to the claimant. Neither apply to Retzlaff’s claims related to the money in his prisoner account. The court rules Retzlaff’s federal civil rights claims under �1983 fail because the TDCJ is not a “person” acting under color of state law who can be sued under the statute. The unlawful takings claim fails because takings claims included an element of using the “taken” property for public use, and no such use was alleged in Retzlaff’s petition. Finally, the theft by a public servant claim fails because Retzlaff does not have standing to bring such a claim. The court also says it’s Retzlaff’s own fault for not securing rulings on his objections to the summary judgment motions. OPINION:Higley, J.; Hedges, Nuchia and Higley, JJ.

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