Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The probate court ordered James Roy Cowan Jr. involuntarily committed to the San Antonio State Hospital because of psychotic behavior, acute depression and suicidal tendencies. As required by the order, the hospital took possession of Cowan’s personal effects, including his suspenders and walker, but allowed him to keep these latter items with him. Two days later, Cowan used his suspenders and a piece of pipe from the walker to commit suicide. His wife and children, respondents in this court, sued the hospital, petitioner here, for wrongful death. The trial court denied the hospital’s plea to the jurisdiction based on sovereign immunity, and the hospital appealed. A divided court of appeals affirmed, holding that “the Hospital employees misused the suspenders and walker by providing them to Cowan in view of his suicidal state”, and therefore its immunity from liability is waived by Texas Tort Claims Act �101.021(2). This court granted the hospital’s petition for review. HOLDING:The judgment of the court of appeals is reversed, and the respondents’ action against the hospital is dismissed. Section 101.021(2) waives the state’s immunity for death “so caused by a condition or use of tangible personal or real property.” Respondents do not complain of the condition of Cowan’s walker and suspenders. They do not assert, for example, that the walker and suspenders were defective or that they lacked some safety feature. Rather, respondents contend, as the court of appeals held, that the hospital misused the walker and suspenders by allowing Cowan to have them. The respondents concede that �101.021(2) waives immunity for a use of personal property only when the governmental unit is itself the user. This limitation is not expressly stated in �101.021, but this court has read it into �101.021(1), which waives immunity for the use of motordriven vehicles and equipment, and there is no reason to construe “use” differently in �101.021(2). Thus, the hospital’s immunity can be waived only for its own use of Cowan’s walker and suspenders, and not by Cowan’s use of them. The respondents argue, and the court of appeals concluded, that the hospital used Cowan’s walker and suspenders by giving them to him to use. The court has defined “use” to mean putting or bringing in to action or service; employing for or applying to a given purpose. Beggs v. Texas Dep’t of Mental Health & Mental Retardation, 496 S.W.2d 252 (Tex. Civ. App. � San Antonio 1973, writ ref’d). A governmental unit does not “use” personal property merely by allowing someone else to use it and nothing more. If all “use” meant “to make available”, the statutory restriction would have very little force. The respondents assert only that the hospital gave Cowan his walker and suspenders; they do not allege that the hospital put the suspenders and walker into service or employed them for a given purpose. By providing Cowan his walker and suspenders, the hospital did not “use” them within the meaning of �101.021(2). The respondents rely on Overton Memorial Hospital v. McGuire, 518 S.W.2d 528 (Tex. 1975) (per curiam), but in that case the hospital was alleged to have used a bed without rails in a patient’s post-operative treatment. The hospital did not merely allow the patient access to the bed; it actually put the patient in the bed as part of his treatment. The use of property respondents allege does not rise to this level. Respondents also cite 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). The court distinguishes these claims. While the court continues to be troubled by the difficulties in construing �101.021(2) that are intrinsic to its language and history, today’s decision is required by this court’s long-standing definition of the word “use” in the statute. Because respondents failed to allege that Cowan’s death was caused by the hospital’s use of property, its immunity is not waived by �101.021(2). OPINION:Hecht, J., delivered the court’s opinion.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.