First District Court of Appeals holds proving patient tangible personal property does not waive immunity

The University of Texas MD Anderson Cancer Center v. Roger Contreras, 01-18-01046-CV (Tex. App – Houston [1st Dist.], May 7, 2019).

In this Texas Tort Claims Act (TTCA) case the First District Court of Appeals held a medical facility does not waive its sovereign immunity by providing, furnishing, or allowing a patient to use tangible personal property.

Roger Contreras went to MD Anderson’s barbershop with the assistance of a nurse, a walker, and a rolling IV pole.  The nurse departed and left the IV pole but took the walker. She informed Contreras he could use the IV pole as an assisting device and did not need the walker. Contreras got up to go to the shampoo station after his haircut, his knee buckled causing him to fall, but when he tried to use the IV pole to catch himself, the pole rolled away. He hit the floor and was injured. Contreras’s medical expert opined that a IV pole is not a proper walking aid.  Contreras sued.  MD Anderson filed a plea to the jurisdiction, which was denied. MD Anderson appealed.

Contreras maintains that MD Anderson’s negligent use of a rolling IV pole as a mobility-assistance device (i.e. negligent use of personal property) caused his injuries. He argues that a nurse took his walker away and told him to use the IV pole to get around.  A governmental unit does not use personal property merely by providing, furnishing, or allowing another to use it.  An exception applies when personal property is provided that lacks an integral safety component. However, the exception applies solely when the component is entirely missing; the failure to provide a more effective safety feature does not trigger the exception. Otherwise, for purposes of section 101.021(2), a governmental unit uses tangible personal property if and only if the governmental unit itself is the user of the property. An allegation that the government enabled, authorized, or approved another’s use of the property is not enough.  Non-use is not use.  The court then held MD Anderson’s alleged defects in the plea are immaterial because the questions are jurisdictional. As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Radack, Justice Goodman and Justice Countiss. Opinion by Justice Goodman. Council for MD Anderson are listed as Joshua Wilson and Kevin D. Molina. The attorney listed for Contreras is Joseph “Joe” Melugin.