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Click here for the full text of this decision FACTS: Barbara Beauchamp filed suit as legal guardian on behalf of Alissa Humphrey for personal injuries Humphrey sustained during her residency at Spindletop MHMR Center. The trial court denied a plea to the jurisdiction filed by Spindletop. HOLDING: Reversed and rendered. The trial court below based its jurisdiction on the “use” of tangible personal property provision in Texas Tort Claims Act �101.021(2). “Use” means “to put or bring into action or service; to employ for or apply to a given purpose.” Texas Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583 (Tex. 2001). Claims alleging the failure to use, or the non-use of property, or alleging errors in medical judgment, are not within the waiver of immunity. Beauchamp has not pleaded facts sufficient to establish the trial court’s jurisdiction. Section 101.021(2) waives immunity for injury “so caused by a condition or use of tangible personal property.” Plaintiff makes no allegations in this case attacking the condition of the bed and the other named equipment, that is, that the property was defective or lacked an integral safety feature. Non-use of “ulcer preventing devices” is not use of tangible personal property within the statutory waiver, and allegations of negligent care are not sufficient to establish waiver of immunity. As in Gainsville Memorial Hosp. v. Tomlinson, 48 S.W.3d 511 (Tex. App. Fort Worth 2001, pet. denied), the property “used” by Spindletop, the bed and the wheelchair, furnished the condition which made the injury possible. But providing Humphrey a bed and a wheelchair are not the acts that are alleged to have caused injury. Rather the pleadings assert a failure to “assess, treat and monitor” her condition as the cause of her injury. The Legislature has not waived immunity to suit for that alleged tort. Plaintiff also relied on �101.021(1), asserting the bed was “motor-driven equipment.” The trial court did not base its decision on this ground, but this allegation also does not meet the causation requirement, that the injury be caused by “the operation or use” of the equipment. OPINION: Gaultney, J.; McKeithen, C.J., Burgess and Gaultney, JJ. DISSENT: Burgess, J. “I respectfully dissent. I believe this case is more like Lowe v. Texas Tech Univ., 540 S.W.2d 297 (Tex. 1976), than any of the cases relied upon by the majority. . . .” “The 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. For example, if a hospital provided a patient with a bed lacking bed rails and the lack of this protective equipment led to the patient’s injury, the Act’s waiver provisions would be implicated.”

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