In the Fifth District Court of Appeals At Dallas

NO. 05-11-01144-CV ACCEPTED 225EFJ016580482 FIFTH COURT OF APPEALS DALLAS, TEXAS 11 November 7 P1:43 Lisa Matz CLERK In the Fifth District Court of Appeals At Dallas DALLAS METROCARE SERVICES, Appellant, v. ADOLFO JUAREZ, Appellee. On appeal from the 191 st District Court of Dallas County, Texas Honorable Gena Slaughter Presiding APPELLANT S BRIEF Joel E. Geary Texas Bar No. 24002129 VINCENT LOPEZ SERAFINO JENEVEIN, P.C. 1601 Elm Street, Suite 4100 Dallas, Texas 75201 214/979-7400 214/979-7402 Facsimile COUNSEL FOR APPELLANT DALLAS METROCARE SERVICES

IDENTITY OF PARTIES AND COUNSEL Counsel for Appellant Dallas Metrocare Services: Joel E. Geary Texas Bar No. 24002129 VINCENT LOPEZ SERAFINO JENEVEIN, P.C. 1601 Elm Street, Suite 4100 Dallas, Texas 75201 Counsel for Appellee Adolfo Juarez: Julian V. Buenger Texas Bar No. 03316800 JULIAN V. BUENGER, P.C. 4344 Congress Avenue Dallas, Texas 75219 i

TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv I. Statement of the Case... vii II. III. Statement of Jurisdiction... viii Issue Presented... ix IV. Statement of Facts... 1 V. Summary of the Argument... 4 VI. Argument and Authorities... 6 A. The Standard of Review and the Tort Claims Act... 6 1. The Standard of Review... 6 2. The limited waiver of immunity contained in the Tort Claims Act... 7 B. DMS s immunity is not waived under the premises liability prong of the Tort Claims Act... 8 1. The First Amended Petition does not allege DMS had actual knowledge of an unreasonably dangerous condition... 9 2. The evidence establishes DMS had no actual knowledge of an unreasonably dangerous condition... 11 C. DMS s immunity is not waived under the negligent use or condition of tangible property prong of the Tort Claims Act.... 12 1. The First Amended Petition does not allege DMS s use of the whiteboard caused Juarez s injury.... 13 ii

2. The evidence established that no negligent use or condition of the whiteboard caused Juarez s injury.... 14 VII. Prayer... 17 APPENDIX... 19 iii

TABLE OF AUTHORITIES STATE CASES Bland Indep. Sch. Dist. v. Blue... 6 34 S.W.3d 547 (Tex. 2000) City of Dallas v. Hillis... 15 308 S.W.3d 526 (Tex. App.-Dallas 2010, pet. denied) Clayton W. Williams, Jr., Inc. v. Olivo... 8 952 S.W.2d 523 (Tex. 1997) County of Cameron v. Brown... 9 80 S.W.3d 549 (Tex. 2002) Dallas County Mental Health Mental Retardation Center v. Bossley... vi 968 S.W.2d 339 (Tex. 1998) Dallas Metrocare Services v. Pratt... vi 124 S.W.3d 147 (Tex. 2003) Del Lago Partners, Inc. v. Smith... 8 307 S.W.3d 762 (Tex. 2010) Gonzales v. City of El Paso... 13 978 S.W.2d 619 (Tex. App.-El Paso 1998, no pet.) Keetch v. Kroger Co.... 8 845 S.W.2d 262 (Tex. 1992) Kerrville State Hosp. v. Clark... 16 923 S.W.2d 582 (Tex. 1995) Lowe v. Texas Tech Univ.... 16 540 S.W.2d 297 (Tex. 1976) Robinson v. Central Texas MHMR Ctr.... 16 780 S.W.2d 169, 171 (Tex. 1989) State Dep t of Highways v. Payne... 9 838 S.W.2d 235 (Tex. 1992) iv

Teague v. City of Dallas... 7, 12, 14, 15 344 S.W.3d 434 (Tex. App.-Dallas 2011, pet. denied) Texas A&M Univ. v. Bishop... 14 156 S.W.3d 580 (Tex. 2004) Texas Dep t of Criminal Justice v. Miller... 7 51 S.W.3d 583 (Tex. 2001) Texas Dep t of Parks & Wildlife v. Miranda... 6, 8 133 S.W.3d 217 (Tex. 2004) Texas Dep t of Transp. v. Mackey... 8, 11 2011 Tex. App. LEXIS 5694 (Tex. App.-El Paso 2011, pet. filed) Texas Sch. for the Blind v. Dugosh... 13 2010 Tex. App. LEXIS 2207 (Tex. App.-Austin 2010, pet. filed) Univ. of North Texas v. Harvey... 16 124 S.W.3d 216 (Tex. App.-Fort Worth 2003, pet. denied.) Wilson v. Texas Parks & Wildlife Dep t... 9 8 S.W.3d 634 (Tex. 1999) Harris County v. Sykes... 17 136 S.W.3d 635, 639 (Tex. 2003) TEXAS STATUTES TEX. CIV. PRAC. & REM. CODE 101.001... 7 TEX. CIV. PRAC. & REM. CODE 101.001(3)(B)... vi TEX. CIV. PRAC. & REM. CODE 101.021... 7 TEX. CIV. PRAC. & REM. CODE 101.021(2)... 9, 12 TEX. CIV. PRAC. & REM. CODE 101.022(a)... 9 TEX. GOV T CODE 311.034... 7 v

TEX. HEALTH & SAFETY CODE 534.001(c)(1)... vi vi

I. STATEMENT OF THE CASE Nature of the case: Trial court: This is an interlocutory appeal. Adolfo Juarez ( Juarez ), a client, was allegedly injured when he came into contact with a whiteboard on the premises of Dallas Metrocare Services ( DMS ), a local governmental mental health and mental retardation center. Juarez sued DMS in common law tort. The Honorable Gena Slaughter, Judge Presiding, 191st District Court, Dallas County, Texas. Trial court s disposition: DMS filed a Plea to the Jurisdiction challenging the trial court s jurisdiction over Juarez s tort claims. 1 The trial court denied the Plea. 2 1 2 Clerk s Record ( CR ) at 14-29. Amended Order, Appendix A. vii

II. STATEMENT OF JURISDICTION Under Section 51.014(8) of the Texas Civil Practice & Remedies Code, a person may appeal from an interlocutory order of a district court that grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001. It is undisputed that DMS, as a mental health and mental retardation community center established under Chapter 534 of the Texas Health & Safety Code, is a political subdivision of the state and a unit of local government within the definition of section 101.001 of the Texas Civil Practice & Remedies Code. 3 Consequently, the Court has jurisdiction over this interlocutory appeal. 3 See Dallas Metrocare Services v. Pratt, 124 S.W.3d 147 (Tex. 2003); Dallas County Mental Health Mental Retardation Center v. Bossley, 968 S.W.2d 339 (Tex. 1998); TEX. CIV. PRAC. & REM. CODE 101.001(3)(B); TEX. HEALTH & SAFETY CODE 534.001(c)(1). DMS was formerly known as the Dallas County Mental Health Mental Retardation Center. See Affidavit of Kyle Munson at 4. CR 31. viii

III. ISSUE PRESENTED A whiteboard leaning against a conference room wall inexplicably fell forward and injured Juarez. Juarez did not allege, nor is there any evidence, that a DMS employee was using the board or anywhere near it when it fell. The whiteboard sat in the same place for many years and appeared to be sturdily positioned against the wall. Juarez did not allege, nor is there any evidence, that DMS had actual knowledge the whiteboard presented an unreasonable risk of harm. Under these circumstances, did the trial court err in holding the Tort Claims Act waived DMS s immunity from suit? ix

IV. STATEMENT OF FACTS As a governmental community center, DMS is a local public agency that treats Dallas County citizens who are confronted with problems of mental health and mental retardation. 4 DMS operates a number of treatment facilities throughout the County, including an adult outpatient clinic on Westmoreland Road in Dallas ( the Westmoreland Adult Clinic ). 5 Juarez has been a mental health patient at this clinic since 2003. 6 Like all clients of the Westmoreland Adult Clinic, Juarez s treatment is fully outpatient meaning that Juarez lives independently and comes to the clinic periodically for treatment and counseling sessions. 7 A Qualified Mental Health Professional ( QMHP ) is assigned to each patient and is responsible for providing the patient with counseling in dealing with his illness and helping the patient to obtain other needed services, such as housing. 8 DMS employee Maria del Pilar Berastain has been Juarez s assigned QMHP since the beginning of his treatment at DMS. 9 Berastain regularly holds group counseling sessions in a conference room at the Westmoreland Adult Clinic. 10 These sessions are 4 5 6 7 8 9 10 Affidavit of Kyle Munson at 6, attached as Exhibit A to the Plea to the Jurisdiction. CR at 31. Munson affidavit at 7. CR at 31. Affidavit of Maria del Pilar Berastain 5, attached as Exhibit B to the Plea to the Jurisdiction. CR at 36. Id. at 5. CR at 36. Id. A psychiatrist also sees each patient on a periodic basis. Id. at 5. CR at 36. Id. at 6. CR at 36. 1

designed to facilitate a group discussion among patients with similar mental health problems to help them cope with their illnesses. 11 On March 3, 2009, Juarez was attending one of these group sessions with seven other patients. 12 Berastain was the only DMS employee in the room. 13 There was a rectangular conference table in the room with Berastain sitting at one end of the table and Juarez sitting at the opposite end. 14 The other clients were seated along each side of the conference table or at other places around the room. 15 A few feet behind Juarez was a table, adjacent to and flush against the wall. 16 On that table sat a four by eight foot whiteboard. The whiteboard was not affixed to the wall but, rather, was leaning against it. 17 Roughly fifteen minutes into the session, the board inexplicably fell forward and came into contact with Juarez. 18 No one was using the board at the time it fell and Berastain the only DMS employee in the room was seated at the opposite end of the table, at least ten feet away from the board. 19 There is no evidence as to why the whiteboard fell. 20 The board had been in the same position in the room for many years 11 12 13 14 15 16 17 18 19 20 Id. at 6. CR at 36. Id. at 7. CR at 36. Id. at 7. CR at 36. Id. at 8. CR at 36-37. Id. at 8. CR at 36-37. Id. at 8. CR at 36-37. Id. at 8. CR at 36-37. Id. at 8. CR at 36-37. Id. at 8. CR at 36-37. Id. at 9. CR at 37. 2

and appeared to be sturdily positioned against the wall. 21 The board had never fallen before and, prior to the incident, no employee or client had ever reported to DMS that the whiteboard was unreasonably dangerous or that it had ever been involved in an injury. 22 After the board fell, Juarez did not appear to be injured. 23 The board was placed back into its original position and the meeting continued for at least another hour. 24 Juarez actively participated during the remainder of the session and appeared to have no immediate ill effects from his contact with the board. 25 On February 23, 2011, Juarez filed his Original Petition claiming he was injured by the whiteboard. 26 The Original Petition was unclear as to the specific legal claims being asserted against DMS. The Petition used the phrase negligence several times and contained other legal boilerplate consistent with an ordinary negligence claim. 27 On the other hand, the Petition interspersed many buzzwords commonly associated with premises liability. 28 On June 10, 2011, DMS filed a Plea to the Jurisdiction seeking dismissal of Juarez s claims on the grounds that the pleadings and evidence failed to demonstrate the 21 22 23 24 25 26 27 28 Id. at 9. CR at 37. Berastain affidavit, 9. CR at 37; Munson affidavit, 9. CR at 31-32. Berastain affidavit, 10. CR at 37. Id. at 10. CR at 37. Id. at 10. CR at 37. CR at 5-9. Original Petition at V, VII. CR at 6-7. Original Petition at V, VI. CR at 6-7. 3

limited waiver of governmental immunity provided for under the Tort Claims Act had been met by Juarez. 29 On June 30, 2011, Juarez filed an Answer in Opposition to DMS s Plea to the Jurisdiction. 30 Juarez also filed his First Amended Petition. 31 But the First Amended Petition did not significantly expand upon or markedly clarify Juarez s original allegations. On July 28, 2011, the trial court held a hearing on the Plea. On August 22, 2011, the court entered an Order denying the Plea. 32 On August 25, 2011, DMS timely filed its Notice of Appeal. 33 V. SUMMARY OF THE ARGUMENT In tort lawsuits against the government, the Plaintiff has the burden of demonstrating the Tort Claims Act waives the government s immunity. The Legislature, however, intended that waiver to be significantly limited and this case demonstrates why. Juarez was allegedly injured when a common whiteboard leaning against a conference room wall fell and came into contact with him. Despite this minor incident, Juarez claims more than $25,000 in medical damages. The whiteboard had been sturdily positioned in the same location for many years and DMS had no reason to believe it was 29 30 31 32 33 CR at 14-29. CR at 38-55. CR at 59-64. Amended Order, Appendix A. CR at 95-96. 4

dangerous. The only DMS employee in the room was seated more than ten feet away from the board and was not using it when it fell. There is no evidence as to why the board fell. It could have been bumped by Juarez or another client or, over time, it simply could have worked its way into an angle with the wall where it became unsteady. By itself, however, the fact that the whiteboard fell does not create strict liability for DMS (as Juarez seems to contend). Juarez was required to plead an explicit waiver of immunity under the Tort Claims Act. Even if he properly pleaded a waiver, Juarez was also required to contravene DMS s evidence tending to establish its immunity in the face of his pleadings. In this case, he did neither. His pleadings are vague as to whether he is asserting a waiver under the premises liability prong or the negligent use of tangible personal property prong of the Act. Under either prong, however, DMS retains its immunity. Juarez did not plead nor did he submit evidence DMS had actual knowledge the whiteboard constituted an unreasonably dangerous premise defect. This failure is fatal to his claim for premises liability. Furthermore, Juarez did not plead nor did he submit evidence DMS s use of the whiteboard (or that a defective condition of the whiteboard) caused his injury. As with the premise defect claim, this failure undermines his effort to waive DMS s immunity under the tangible personal property prong of the Act. Accordingly, DMS retains its immunity and the trial court erred in denying DMS s Plea to the Jurisdiction. 5

VI. ARGUMENT AND AUTHORITIES A. The Standard of Review and the Tort Claims Act. 1. The Standard of Review. In this case, DMS challenges Juarez s tort claims on the basis that DMS s governmental immunity has not been waived by the Tort Claims Act. Governmental immunity from suit deprives the trial court of subject matter jurisdiction over a plaintiff s claims unless the government consents to suit. 34 The government s proper procedural vehicle for challenging the trial court s jurisdiction is a plea to the jurisdiction. 35 Whether a court has subject matter jurisdiction is a question of law. 36 Such a determination is, on appeal, reviewed de novo. 37 A plea to the jurisdiction often may be determined solely from the pleadings. 38 But when a plea to the jurisdiction challenges the existence of jurisdictional facts a court must consider all of the relevant evidence submitted by the parties to the extent the evidence is necessary to resolving the jurisdictional issue being raised. 39 34 35 36 37 38 39 Texas Dep t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Id. at 225-26. Id. Id. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000). Id. 6

2. The limited waiver of immunity contained in the Tort Claims Act. In the Tort Claims Act, the legislature waived the government s immunity from suit and damages for certain types of common law tort claims. 40 This waiver, however, is narrow and only applies when the pleadings and undisputed evidence clearly lead to the conclusion that the government s immunity has been waived. 41 Under the Act, the government s immunity is waived for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) (B) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and the employee would be personally liable to the claimant according to Texas law; and (2) personal injury and death so caused by a condition or use of tangible personal or real property if the government unit would, were it a private person, be liable to the claimant according to Texas law. 42 To summarize, there are three possible avenues for waiver under the Act: when the injury is caused by (1) the negligent operation of a motor vehicle, or (2) the negligent use or condition of tangible personal property, or (3) a defective condition of real property. There is no motor vehicle involved in this case; accordingly, only the second and third waiver prongs are at issue. Juarez s pleadings, however, do not clearly delineate which 40 41 42 TEX. CIV. PRAC. & REM. CODE 101.001 et seq. See Teague v. City of Dallas, 344 S.W.3d 434, 438 (Tex. App.-Dallas 2011, pet. denied) ( The legislature granted a limited waiver of immunity in the tort claims act, which allows suits to be brought against governmental units in limited circumstances. ) (citing Texas Dep t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001)); TEX. GOV T CODE 311.034. TEX. CIV. PRAC. & REM. CODE 101.021. 7

prong he believes is applicable. The issue is important, however, because negligent activity and premises defect are independent theories of recovery. 43 And the supreme court has held that a plaintiff cannot be allowed to circumvent the heightened standards of a premise defect claim contained in section 101.022 by re-casting the same acts as a claim relating to the negligent condition or use of tangible property. 44 Negligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the [premises] owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner s failure to take measures to make the property safe. 45 Recovery on a negligent activity theory requires that the person have been injured by, or as a contemporaneous result of, the activity itself rather than by a condition created by the activity. 46 The gravamen of Juarez s claim appears to be that the whiteboard should have been secured to the wall and by not securing it, DMS failed to make the conference room safe for Juarez s use. If so, his claim should be analyzed through the premises liability prong of the Tort Claims Act. Nevertheless, under either a negligent activity or premises liability theory, DMS s immunity has not been waived. B. DMS s immunity is not waived under the premises liability prong of the Tort Claims Act. The Tort Claims Act waives immunity for personal injury... so caused by a condition... of... real property if the governmental unit would, were it a private 43 44 45 46 Texas Dep t of Transp. v. Mackey, 2011 Tex. App. LEXIS 5694, *9 (Tex. App.-El Paso 2011, pet. filed) (citing Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex. 1997)). Miranda, 133 S.W.3d at 233. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010). Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). 8

person, be liable to the claimant according to Texas law. 47 This waiver language is commonly known as the premises liability prong of the Act. The waiver, however, is limited by section 101.022 of the Act. Under that section, if a claim arises from a premises defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises. 48 In essence, the Act lowers the government s duty of care from that owed to an invitee 49 to that owed to a licensee. To demonstrate a waiver of immunity using a licensee standard of care, Juarez must plead and submit evidence that (1) the condition of DMS s real property (in this case, the whiteboard) was a premises defect, (2) the defect posed an unreasonable risk of harm, (3) DMS had actual knowledge of the danger, (4) DMS breached its duty of care by both (a) failing to adequately warn Juarez of the defect and (b) failing to make the premises reasonably safe, and (5) DMS s breach of this duty proximately caused Juarez s injury. 50 1. The First Amended Petition does not allege DMS had actual knowledge of an unreasonably dangerous condition. The whiteboard was not a premise defect nor did it create an unreasonable risk of harm and, notably, Juarez did not clearly allege either of these premises liability elements in his First Amended Petition. But even if one applied a very liberal 47 48 49 50 TEX. CIV. PRAC. & REM. CODE 101.021(2) (emphasis added). TEX. CIV. PRAC. & REM. CODE 101.022(a) (emphasis added). The invitee standard of care imposes a higher burden on the property owner to make safe those defective conditions on his property that he reasonably should have known about. Actual knowledge of the defect is not required. State Dep t of Highways v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002); Wilson v. Texas Parks & Wildlife Dep t, 8 S.W.3d 634, 635 (Tex. 1999). 9

construction to his pleading and assumed these elements have been properly alleged, Juarez unequivocally failed to allege the third element of a premises claim under the licensee standard of care: that DMS had actual knowledge the whiteboard was defective and, thus, created an unreasonable risk of harm. In support of its Plea, DMS submitted evidence that the board had never fallen before and, prior to the incident, no employee or client reported to DMS that the whiteboard had ever been involved in an injury or was otherwise unreasonably dangerous. 51 As DMS employee Berastain testified, the board had been in the room for many years and appeared to be positioned sturdily against the wall. 52 She had never seen it fall before and had no reason to believe it might fall. 53 Juarez filed his First Amended Petition after DMS filed its Plea to the Jurisdiction. Thus, at the time he filed his amended pleading, Juarez knew DMS was challenging the actual knowledge element of Juarez s premises liability claim. Despite this, Juarez made no allegation that DMS had actual knowledge of an unreasonably dangerous condition in his First Amended Petition. In fact, the First Amended Petition appears to concede DMS had no knowledge of an unreasonably dangerous condition. In Paragraph V(3), Juarez contended DMS was negligent in failing to discover the unsafe condition of the whiteboard and either securing it or removing it. 54 In Paragraph V(4), he asserted DMS was negligent in failing to inspect the conference room in question for unsafe 51 52 53 54 Berastain affidavit, 9. CR at 37; Munson affidavit, 9. CR at 31-32. Berastain affidavit, 9. CR at 37. Id. at 9. CR at 37. First Amended Petition, V(3) (emphasis added). CR at 60. 10

conditions. 55 Thus, Juarez appeared to concede in his pleadings that DMS had no actual knowledge of an unreasonably dangerous condition. The touchstone of licensee liability is that the premises owner had actual knowledge of a dangerous condition. 56 Though he had two opportunities to do so, Juarez completely failed to allege DMS had actual knowledge of an unreasonably dangerous condition. 57 Accordingly, DMS s immunity is not waived by the premises liability prong of the Tort Claims Act. 2. The evidence establishes DMS had no actual knowledge of an unreasonably dangerous condition. Even if Juarez had alleged actual knowledge of an unreasonably dangerous condition, DMS submitted uncontroverted evidence that it had no such actual knowledge. 58 The board had been in the room for many years and appeared to be sturdily positioned against the wall. 59 Berastain had never seen it fall before and had no reason to believe it might fall. 60 Munson, the employee responsible for DMS s risk management activities, testified that, prior to the incident involving Juarez, no employee or client had ever reported the whiteboard had been involved in an injury or was otherwise 55 56 57 58 59 60 First Amended Petition, V(4) (emphasis added). CR at 61. Texas Dep t of Transp. v. Mackey, 2011 Tex. App. LEXIS 5694, *17 (Tex. App.-El Paso 2011, pet. filed) ( Section 101.022(a) of the TTCA limits the government s duty to prevent injury from premises defects to those of which it has actual knowledge. ). Moreover, assuming the unattached whiteboard was an unreasonably dangerous condition (which it was not), Juarez s knowledge of the condition of the whiteboard was equal to that of DMS. In his affidavit, Juarez testified that he noticed the unattached board in the room about a year before it fell on [him]. Juarez affidavit, 6. CR 46. To establish premises liability, Juarez was required to demonstrate DMS had actual knowledge of the dangerous condition, and that he did not. Mackey, 2011 Tex. App. LEXIS 5694, *17 (emphasis added). Berastain affidavit, 9. CR at 37; Munson affidavit, 9. CR at 31-32. Berastain affidavit, 9. CR 37. Id. at 9. 11

dangerous. 61 When the government submits evidence challenging plaintiff s assertion of waiver of immunity, the trial court is required to examine that evidence to determine whether it has jurisdiction. 62 Absent a fact issue on the element in question, the trial court must grant the Plea to the Jurisdiction. 63 Here, DMS submitted evidence that it lacked actual knowledge of an unreasonably dangerous condition and Juarez completely failed to controvert DMS s evidence. Consequently, the trial court erred in denying the Plea to the Jurisdiction. C. DMS s immunity is not waived under the negligent use or condition of tangible property prong of the Tort Claims Act. In amending his Petition and in responding to the Plea to the Jurisdiction, Juarez appeared to contend DMS s immunity was also waived under the negligent use of tangible personal property prong of the Tort Claims Act (though he never cited this language of the statute in his pleading). 64 Specifically, the statute waives immunity for personal injury... so caused by a condition or use of tangible personal... property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. 65 To support a claim based on the negligent use of personal property prong, the plaintiff must establish (1) that the property was used or misused by a governmental employee acting within the scope of his or her employment and (2) that the 61 62 63 64 65 Munson affidavit, 9. CR at 31-32. Teague, 344 S.W.3d at 437. Id. See First Amended Petition, IV ( A large whiteboard, personal property of Metrocare, which was not properly secured, fell on Mr. Juarez s head without warning. ). CR at 60. TEX. CIV. PRAC. & REM. CODE 101.021(2). 12

use or misuse of the property was a contributing factor to the injury. 66 Thus, the negligence of the government employee must be the proximate cause of the injury and must involve a condition or use of tangible personal property under circumstances where there would be private liability. 67 1. The First Amended Petition does not allege DMS s use of the whiteboard caused Juarez s injury. The First Amended Petition identifies a number of purported failures on the part of DMS: a failure to properly secure [the] whiteboard ; a failure to warn Juarez of an unsafe condition; a failure to discover the unsafe condition and remove it; a failure to inspect the conference room for unsafe conditions; and a failure to provide a safe conference room. 68 But these purported failures do nothing to establish that DMS s actual use of the whiteboard caused Juarez s injury. 69 Juarez s only effort to allege a causal use of property is his contention that DMS used the whiteboard in an unsafe manner by not securing it to avoid it falling. 70 But this is not an allegation of affirmative use rather, it is another way of describing DMS s purported failure to make the conference room safe. These allegations sound in premises liability, not ordinary negligence. And certainly not the type of negligent use of personal property demanded by the Tort Claims Act. Distilled to their essence, Juarez s allegations rely on the fact that 66 67 68 69 70 Gonzales v. City of El Paso, 978 S.W.2d 619, 623 (Tex. App.-El Paso 1998, no pet.). Id. See First Amended Petition, V. CR at 60-11. Texas Sch. for the Blind v. Dugosh, 2010 Tex. App. LEXIS 2207, *34 (Tex. App.-Austin 2010, pet. filed) (whatever use may mean, it cannot mean a failure to use or non-use of the personal property involved in the incident). See First Amended Petition, V(6). CR at 61. 13

an item of personal property (the whiteboard) was involved in his injury. But the causal nexus requires more than the mere involvement of the property; the [property s] use must have actually caused the injury. 71 The term use means to put or bring [the object] into action or service or to employ [the object] for or apply [it] to a given purpose. 72 Nowhere does Juarez allege that affirmative use of the whiteboard by a DMS employee actually resulted in his injury. 2. The evidence established that no negligent use or condition of the whiteboard caused Juarez s injury. Even had Juarez adequately alleged that the use of the whiteboard caused his injuries, the underlying evidence would belie this assertion. As she stated in her affidavit, Berastain was the only DMS employee in the room when the whiteboard fell. 73 Berastain did not use the board at all during the counseling session and was sitting at least ten feet away from it at the time it fell. 74 Though he submitted an affidavit in support of his response to the Plea, Juarez did not contradict Berastain s assertions. 75 Juarez did testify, however, that he noticed the board in the room about a year before it fell and had seen writing on it from time to time. 76 The implication of this statement (though not elaborated upon in Juarez s trial court briefing) is that someone wrote on the board and, accordingly, it must have been used at some point. Indeed, common sense would 71 72 73 74 75 76 Teague v. City of Dallas, 344 S.W.3d at 439. Texas A&M Univ. v. Bishop, 156 S.W.3d 580 (Tex. 2004). Berastain affidavit, 8, CR 24. Id. Affidavit of Adolfo Juarez. CR 45-48. Id. at 6. 14

dictate that a whiteboard in a conference room would, from time to time, be used for its ordinary purpose to display written material. The implication derived from Juarez s testimony, however, does nothing to establish that this purported use actually resulted in Juarez s injuries, i.e., that some Metrocare employee writing on the board at some time in the past did something to the board to actually cause it to fall and injure Juarez on March 3, 2009. As this Court recently stated: When an alleged cause is geographically, temporally, or causally attenuated from the alleged effect, that attenuation will tend to show that the alleged cause did no more than furnish the condition that made the effect possible. 77 Here, Juarez has not even identified a cause; he has merely implied that, in the past, while writing on the board, someone employed by DMS may have negligently done something that may have caused the whiteboard to fall. But this raft of evidentiary unknowns is too leaky a vessel to sustain Juarez s burden under the negligent use prong of the Tort Claims Act. There must be a clear nexus between the governmental employee s use of the property and the actual cause of the injury otherwise immunity is not waived. 78 Evidence establishing that nexus is nonexistent in this case. Recognizing the evidence did not demonstrate a negligent use of the whiteboard, Juarez also argued in the trial court that a defective condition of the whiteboard caused his injury and, thus, waived DMS s immunity. According to Juarez, the defect was 77 78 Teague, 344 S.W.3d at 438 (quoting City of Dallas v. Hillis, 308 S.W.3d 526, 532 (Tex. App.-Dallas 2010, pet. denied)). Teague was a motor vehicle case, but the causation standard is the same under the personal property prong. Id. 15

DMS s failure to secure the whiteboard to the wall to make the conference room safe. 79 Again, these allegations sound in premises liability not negligence. Moreover, in those few cases where Texas courts have found a waiver of immunity due to a defective condition of tangible personal property, they have only done so when the government provides equipment to the plaintiff for his use but the equipment is defective because it lacks an integral safety component. 80 For example, in Robinson v. Central Texas MHMR Ctr., the supreme court held the government s immunity was waived when it provided swimming attire to plaintiff that lacked a life preserver (an integral safety component ), resulting in the plaintiff s death. 81 Since Robinson, however, the supreme court has made clear that the precedential value of these cases are limited to claims in which a plaintiff alleges that a state actor has provided property that lacks an integral safety component and that the lack of this integral component led to the plaintiff s injuries. 82 In this case, Juarez does not allege DMS provided the whiteboard to him for his use and that it lacked some sort of integral safety component. Indeed, the evidence clearly established that the whiteboard was not being used by anybody (much less Juarez) at the time it fell. Nor do the pleadings or evidence demonstrate the whiteboard lacked an integral safety component. In other words, there was nothing missing from the whiteboard that should have been there. Rather, Juarez argues it should have been 79 80 81 82 Juarez s Supplemental Answer in Opposition at pages 2-4. CR 66-68. Univ. of North Texas v. Harvey, 124 S.W.3d 216, 222 (Tex. App.-Fort Worth 2003, pet. denied.). 780 S.W.2d 169, 171 (Tex. 1989). See also Lowe v. Texas Tech Univ., 540 S.W.2d 297, 300 (Tex. 1976) (football uniform provided by university without knee brace lacked integral safety component, triggering a waiver of immunity). Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1995). 16

attached to the wall. But this contention does not come within the cabined boundaries of the few cases, like Robinson, holding that a defective condition of tangible personal property can waive immunity. Thus, Juarez cannot escape DMS s immunity through a defective condition of personal property argument and the trial courted erred in denying Metrocare s Plea to the Jurisdiction. VII. PRAYER Neither Juarez s First Amended Petition (filed in response to DMS s Plea to the Jurisdiction) or the evidence support a waiver of DMS s immunity under the Tort Claims Act. When a plaintiff has been provided an opportunity to amend his petition after the government files its Plea to the Jurisdiction and the amended pleading still does not allege facts that would constitute a waiver of immunity, the plaintiff s claim should be dismissed with prejudice. 83 Consequently, the trial court s order denying DMS s Plea to the Jurisdiction should be reversed and judgment rendered dismissing Juarez s claims with prejudice. 83 Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2003). 17

Respectfully submitted, VINCENT LOPEZ SERAFINO JENEVEIN, P.C. /s/ Joel E. Geary Joel E. Geary Texas Bar No. 24002129 1601 Elm Street, Suite 4100 Dallas, Texas 75201 214/979-7400 214/979-7402 Facsimile jgeary@vilolaw.com COUNSEL FOR APPELLANT DALLAS METROCARE SERVICES CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been served upon Julian V. Buenger, JULIAN V. BUENGER, P.C., 4344 Congress Avenue, Dallas, Texas 75219, as attorneys for Appellee, electronically pursuant to Local Rule B(c) and by certified mail, return receipt requested on the 7 th day of November, 2011. #236995 000327-00008 /s/ Joel E. Geary Joel E. Geary 18

APPENDIX Tab Document A. August 22, 2011 Amended Order Denying Defendant s Plea to the Jurisdiction 19

ACCEPTED 225EFJ016580482 FIFTH COURT OF APPEALS DALLAS, TEXAS 11 November 7 P1:43 Lisa Matz CLERK