Mere Involvement of property insufficient to waive immunity and information is not tangible property says 14th Court of Appeals

University of Texas Medical Branch at Galveston v Kai Hui Qi, NO. 14-12-00581-CV (Tex. App. – Houston [14th Dist.] May 30, 2013).

This is a negligent use of tangible personal property case under the Texas Tort Claims Act (“TTCA”). Qi delivered a stillborn child at the University of Texas Medical Branch at Galveston (“UTMB”) hospital. She sued UTMB alleging, among other things, that employees were negligent in the use of the blood pressure cuffs/testing equipment and urine test strips and by improperly reading and interpreting the results produced by the testing equipment which resulted in injury to Qi and the unborn child.  UTMB filed a plea to the jurisdiction which was denied. It appealed and the court of appeals reversed and rendered.

The Fourteenth Court of Appeals first went through a type of historical analysis of the seminal cases dealing with negligent use of tangible personal property interpretations under the TTCA.  The culmination results in the principle that mere involvement of personal property is not sufficient to waive sovereign immunity.  The negligent use must be the cause of the injury. Further, the negligent use of information, such as lab results or tests, is not the use of tangible personal property. The substance of Qi’s claim is a failure to diagnose and treat for which no waiver of immunity exists.  The plea to the jurisdiction should have been granted so the court reversed and rendered, dismissing Qi’s claims for lack of jurisdiction.

This is a good case to examine if you are dealing with a distinction between use of information vs tangible personal property or the causation nexus between the use of tangible personal property and the injury.  The only area not really covered in his historic analysis which could have been is the “non-use” of property which does not waive immunity; however, the facts were not such that a detailed look was necessary for this particular case.

If you would like to read this opinion click here.

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