Falling television was premise defect claim, not tangible personal property claim says Dallas Court of Appeals

Dallas County Hospital District v. Laura Constantino, 05-13-01084-CV (Tex. App. – Dallas, August 7, 2014).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claims Act (“TTCA”) case where the Dallas Court of Appeals reversed the denial of a plea to the jurisdiction in a premise defect case, but remanded to allow the Plaintiff an opportunity to replead.

Dallas County Hospital District (“Parkland Hospital” or “Parkland”)  provides televisions in patient rooms secured to the wall by a mount. Constantino’s shoulder was injured when a television detached from the mount and fell on her. No one was using the television at the time. Parkland had received no reports of prior injuries or any potential dangers presented by this television. Constantino sued alleging the negligent use of tangible personal property (i.e. a non-locking nut installed instead of a locking nut and no lock washer). She also alleged the television, in such a state, constituted an unreasonably dangerous condition.  Parkland filed a plea to the jurisdiction. The trial court granted the plea as to the premise defect claims, but denied it as to the negligent use of tangible personal property. Parkland appealed.

Constantino asserts her primary claims center on Parkland providing defective equipment, which fall under the negligent use of tangible personal property waiver, not the premise defect waiver in the TTCA. However, the court held her claims do not center on the negligent “use” of the property, but on the condition the property was in causing it to fall. Further, it went through an analysis of the pleadings holding that under the tangible personal property waiver of immunity, Constantino must also establish a private person would be liable. Her claims that a private person may be liable all center on her status as an invitee on the premises.  As a result, her claims are those of a premise defect. However, her petition and the evidence presented does not affirmatively negate the ability to cure the defect. As a result, the case is remanded to allow Constaintino to replead. [Comment: on a procedural note, it is odd that the panel remanded since the trial court already granted the plea as to a premise defect, that ruling was not appealed and was not before the court.]

If you would like to read this opinion click here.  Panel: Justice Moseley, Justice Lang, and Justice Brown. Memorandum Opinion by Justice Brown.  The attorneys listed for Parkland are Helena Venturini   and David Luningham.  The attorney listed for Constantino is Gene Stuart Hagood.