Interruption in use is not the “non-use” of tangible personal property says 4th Court of Appeals
Uvalde County Hospital Authority v. Estela R. Garcia, 04-13-00893-CV (Tex. App. – San Antonio, November 12, 2014)
This is an interlocutory appeal in a Texas Tort Claims Act case involving the death of a patient in which the trial court denied the Uvalde County Hospital Authority’s plea to the jurisdiction. The San Antonio Court of Appeals affirmed in part and reversed in part.
Juan R. Garcia was a patient at Uvalde Memorial Hospital and received oxygen through a specific type of ventilation system (BIPAP). The BIPAP system was disconnected during a transfer but no other oxygen system was used during the physical transfer. As a result, he died upon arriving at the ICU. Garcia’s family sued alleging the negligent use of tangible personal property (the oxygen system) caused the death. Additionally, they alleged the transfer equipment provided lacked an integral safety component. They also sued for negligent supervision and training. The trial court denied the Authority’s plea to the jurisdiction and it appealed.
The court first analyzed then held that the allegation of the disconnecting but not reconnecting oxygen was not a “non-use” of property, which would avoid the waiver of sovereign immunity. The cases which follow a “non-use” of property holding deal with the failure to add something new to the situation, not the cessation of use and failure to reinitialize. They held the non-use argument does not apply to an interruption in use. Additionally, the entire process of disconnecting then reconnecting and use of the masks and equipment is “clearly part of a single system, i.e., each is an integral component for the delivery of oxygen…” As a result, the Plaintiff properly alleged the Authority provided a system lacking an integral safety component. The trial court properly denied the plea as to those two arguments. However, the court reversed the denial as to the failure to supervise and train as such claims are clearly outside the waiver of sovereign immunity found in the TTCA.
If you would like to read this opinion click here. Panel: Chief Justice Stone, Justice Barnard and Justice Chapa. Memorandum Opinion by Justice Barnard. The attorney listed for Garcia is Marynell Maloney. The attorney listed for the Hospital Authority is Jeffrey J. Jowers.
