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Click here for the full text of this decision FACTS:While acting in a university drama club production, the plaintiff in this case was inadvertently stabbed in the chest when a fellow actor missed the stab pad the plaintiff wore that was intended to deflect the blow. The plaintiff sued the university under the Texas Tort Claims Act, alleging that the university was liable for the negligence of the drama club’s faculty advisors and the play’s director. Texas Civil Practice & Remedies Code 101.021. The court of appeals affirmed the trial court’s judgment in the plaintiff’s favor, holding that the faculty advisors’ actions constituted a “use” of tangible personal property for which the Tort Claims Act waived governmental immunity. HOLDING:The court reverses the judgment of the court of appeals and dismisses Bishop’s suit against TAMU. The drama club faculty advisors did not themselves “put or bring [the knife] into action or service” or “employ [the knife] for or apply [it] to a given purpose,” as the Texas Supreme Court has said the term “use” intends. San Antonio State Hospital v. Cowan, 128 S.W.3d 244 (Tex. 2004). To the extent the plaintiff, Paul Bishop, claims the faculty advisors allowed the director, Michael Wonio, and an assistant, Diane Wonio, to provide the knife by failing to properly supervise the production, such negligent supervision, without more, does not constitute a “use” of personal property that would waive TAMU’s immunity under 101.021(2), else the failure to prevent any accident that involves tangible personal property would come within the statute’s purview. “Such a result would be tantamount to abolishing governmental immunity, contrary to the limited waiver the Legislature clearly intended.” Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1996). In deciding Lowe v. Tex. Tech Univ., 540 S.W.2d 297 (Tex. 1976) and Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169 (Tex. 1989), the court states that it did not intend to allow both use and nonuse (i.e., failure to provide a more effective safety feature) to effect a waiver of immunity under the act. Similarly, Bishop’s claim that the knife was inherently unsafe without an adequate stab pad does not mean that an integral safety component was lacking for purposes of governmental waiver under the act. The court concludes that the faculty advisors’ conduct did not waive TAMU’s immunity. The court agrees with the court of appeals that there is no evidence in the record to support the jury’s finding that Michael and Diane Wonios were employees, and holds that they were independent contractors as a matter of law. Accordingly, their actions could not constitute a “use” that would waive TAMU’s immunity. OPINION:O’Neill, J., delivered the opinion of the court, in which Jefferson, C.J., Hecht, Owen, Wainwright and Medina, JJ., joined. Brister and Green, JJ., did not participate in the decision.

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