COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
THE UNIVERSITY OF TEXAS SYSTEM OPERATING AS THE UNIVERSITY OF TEXAS AT EL PASO , Appellant ,

v. KENNETH PALOMINO , Appellee. § § § § § § No. 08

- 15

- 00004

- CV

Appeal from the 210th District Court

o f El Paso County , Texas (TC# 2013DCV3710 )

O P I N I O N Kenneth Palomino was working on a class project in the university machine shop, using one side of a double

- ended pedestal grinder to polish a piece of metal, when his hand was caught in the grinder and crushed. Palomino sued the university under the Texas Tort Claims Act, alleging in part that t he university was liable for negligently providing him with a grinder that “was devoid of any protector guard [

. ] ” We must determine whe ther this case falls within the Tort Claims Act’s “use” exception to governmental immunity under the integral safety component doctrine

. We conclude that it do es not and that the university’s immunity was not waived by the Texas Tort
Claims Act. Accordingly, we reverse the trial court’s order to the extent it denied the university ’s plea to the j urisdiction and dismiss Palomino ’s claims.2 BACKGROUND Kenneth Palomino wa s an engineering student at the University of Texas at El Paso (UTEP) . Palomino injured his hand while using a double

- ended pedestal grinder in the UTEP engineering machine shop. A double

- ended pedestal grinder is often used to remove excess

w elding material from a metal piece in order to clean up or “ dress ” the welds. A double

- ended pedestal grinder has two grinding wheels, one on either side of a central motor. Typically, a double

- ended pedestal grinder is set up to grind smaller pieces of metal with the wheel on the left side, and larger pieces with the wheel on the right. Palomino was working on a class project, when he decided to use the pedestal grinder to

remove excess welding material from one - inch square steel tubing he had just welded . The metal piece was still hot and difficult to hold, so Palomino used thick welding gloves to hold the piece while grinding it

. Palomino chose to use the wheel on the right side of the pedestal grinder set for grinding larger pieces. Palomino ha d not received instruction in the use of the pedestal gri nder,

nor had he asked his instructor to demonstrate its use. Palomino alleges that the piece of metal he was grinding was “sucked in” by the grinding wheel, pulling in his hand and crushing it in t he
process . Palomino sued UTEP , 1 alleging in part that UTEP was negligent in failing to provide a protecto r guard on the pedestal grinder. 2 Palomino alleged in particular that UTEP had

1 In his original petition, Palomino named the defendant as “The University of Texas System, Operating as the University of Texas at El Paso.” In its answer, UTEP noted tha t it had been misidentified as “T he University of Texas System Operating as T he University of Texas at El Paso. ” T he trial court also noted this discrepancy in its order on UTEP’s plea to the jurisdiction

. W hile UTEP is a n institution of higher education within The University of Texas S ystem and is under the management and control of the board of regents of The University of Texas System, it is a separate legal entity for purposes of suit. See T EX
. E DUC
. C ODE A NN
. §§ 65.02 (West Supp. 201 6 ), 69.02 (West 2002). In any event, both UTEP a nd The University of Texas System are immune from suit unless the Tort Claims Act has waived that immunity. Univ. of Texas at El Paso v. Moreno , 172 S.W.3d 281, 284 (Tex. App.

– El Paso 2005, no pet.)

.3

negligently provided him “with an unguarded and unsafe double

- ended pe destal grinder.”
Palomino iden tified two components that he asserted were integral to the s afe use of the pedestal grinder

— a “protector guard” and a “safety rest , ” which could be used to stabilize the metal piece being ground. The evidence is undispu ted that both a protector guard and a safety rest had been installed

on t he pedestal grinder in question. Tho se safety components, however, were installed only on the left side of the pedestal grinder with the wheel for grinding smaller pieces. T he right sid e of the pedestal grinder with the wheel for grinding larger pieces , which Palomino chose to use , did not contain any similar protective components

. UTEP presented evidence that this was the typical set up for double

- ended pedestal grinders in machine sho ps across the country, and its experts testified the grinder was not missing any integral safety components and was safe to operate. UTEP filed a plea to the jurisdiction based on governmental immunity and submitted jur isdictional evidence , asserting in pa rt that Palomino’s claim did no t fall within the integral safety component doctrine because that doctrine is limited to cases in which a safety component is completely lacking as opposed to being merely inadequate. UTEP also asserted that Palomino’s
other claim s ( alleging a failure to adequately maintain and manage t he pedestal grinder and to properly instruct and supervise students i n its u se) did not fall within in any waiver of immunity under the Texas Tort Claims Act. After hearing, the trial court granted UTEP’s plea to the jurisdiction in part and dismissed all of Palomino’ s claims except with respect to Palomino’s

2 Palomino also alleged UTEP was negligent in failing to adequately maintain and manage t he pedestal grinder, and in failing to properly instruct and supervise students i n the u se of the pedestal grinder

.4

“allegation that the dou ble

- sided pedestal grinder in question lacked an integral safety component.” DISCUSSION UTEP contends the trial court erred in refusing to dismiss Palomino’s remaining integral

- safety

- component claim because he failed to present any evidence that the doub le

- ended pedestal grinder lacked an integral safety component. In particular, UTEP points out that to establish a waiver of sovereign immunity with respect to tangible personal property not actually used by a governmental employee , a plaintiff must demons trate that an integral safety component

was entirely missing from the prope rty provided to him, and not merely inadequate. UTEP
argues that because the uncontroverted evidence shows that the pedestal grinder was not entirely lack ing an integral safety com ponent , we must reverse and dismiss Palomino’s remaining claim

. 3 We agree. Tort Claims Act and Standard of Review UTEP is a governmental entity, and the doctrine of governmental immunity shields it from liability for the negligence of its employees absent a waiver of that immunity. See Texas A&M Univ. v. Bishop , 156 S.W.3d 580, 583 (Tex. 2005); Esparza v. Univ. of Texas at El Paso , 471 S.W.3d 903, 908 (Tex. App.

– El Paso 2015 , no pet. ) (“ As a governmental entity, UTEP is generally immune from suit. ”)

. As a governmental unit, UTEP is immune from both suit and liability for negligence unless the Texas Tort Claims Act has waived that immunity. Univ. of Texas at El Paso v. Moreno , 172 S.W.3d 281, 284 (Tex.App.

– El Paso 2005, no pet.) ; see Sampson v. Univ. of Texas at Austin , No. 14

- 0745 , 2016 WL 3212996, at *2 (Tex. June 10, 2016)

3 UTEP al so contends Palomino failed to show that his injuries were proximately caused by the lack of an integral safety component. We do not reach this contention since it s resolution is un necessary to the final disposition of the appeal. See T EX
. R. A PP
. P. 47.1.5

(“a governmental unit is immune from suit unless the Tort Claims Act expre ssly waive s immunity”). Immunity from suit implicates a court’s subject matter jurisdiction. Sampson , 2016 WL 3212996, at *2; Rusk State Hosp. v. Black , 392 S.W.3d 88, 91 (Tex. 2012). “Whether a court has subject matter jurisdiction is a question of law , properly asserted in a plea to the jurisdiction.” Sampson , 2016 WL 3212996, at *2; Tex. Dep’ t of Parks & Wildlife v. Miranda , 133 S.W.3d 217,
225

- 26 (Tex. 2004). Where, as here, evidence is presented with a plea to the jurisdiction, the court reviews the relevant evidence and may rule on the plea as a matter of law if the evidence does not raise a fact issue on the jurisdictional question, a standard tha t generally mirrors the summary judgment standard. Harris Cty. Flood Control Dist. v. Kerr , No. 13

- 0303, 2016 WL 3418246, at *4 (Tex. June 17, 2016)

. The Integral Safety Component Doctrine The Tort Claims Act expressly waives immunity from suit in three areas: (1) use of publicly owned automobiles; (2) injuries arising out of a condition or use of tang ible personal property; and (3) premises defects. Sampson , 2016 WL 3212996, at *2; Miranda , 133 S.W.3d at
22 5

. In particular, t he Tort Claims Act waives a governmental unit’s immunity from suit when personal injury or death is caused by a “use of tangibl e personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.021(2) (West 2011). As noted by the Texas Supreme Court, t his provision has led to vigorous debate over the
proper scope of the waiver and has “ spawned a host of cases expl oring the outer bounds of this ‘use’ exception to governmental immunity. ” City of N. Richland Hills v. Friend , 370 S.W.3d 369,6

372 (Tex. 2012 ) ; see also Sampson , 2016 WL 3212996, at *4 ( “For four decades, Texas jurists have repeatedly expressed concerns about the difficulty of discerning the Legislature ’ s intended meaning behind the words ‘condition or use’ as they appear in the . . . Tort Claims Act.” ) (quoting Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 49 (Tex. 2015) ). But, certain rules have emerged from the myriad of cases exploring the “use” exception to immunity

. For example, t o state a claim for a “use” of t angible personal property under the Tort Claims Act, the injury , as in the present case, must be contemporaneous with the use of the tangible personal property

— “[u]sing that property must have actually caused the injury.” Sampson , 2016 WL 3212996, at *4 (quoting Tex. Dep’ t of Crim . Justice v. Miller , 51 S.W.3d 583, 588 (Tex. 2001) ). Further, a llegations of mere non

- use of property cannot support a “use” claim
under the Tort Claims Act. Id. (citing T ex. Nat. Res. Conservation Comm’ n v. White , 46 S.W.3d 864, 869

- 70 (Tex. 2001) ) ; see also Friend , 370 S.W.3d at 372 (“ It is well settled that mere nonuse of property does not suffice to invoke section 101.021(2) ’ s waiver. ”)

. Moreover, a governmental unit “does not ‘use ’ tangible personal property . . . within the meaning of section 10 1.021(2) by merely providi ng, furnishing, or allowing . . . access to it.” Sampson , 2016 WL 3212996, at *4 (quoting Rusk State Hosp. , 392 S.W.3d at 98 ). Important to this case, however, the Supreme Court has explained that non - use and furnishing access to tangible personal property are distinguishable from situations in which a governmental unit “provided equipment that lacked an integral safety component.” Id. In some cases, the Supreme Court has held that when a plaintiff alleges that the state has pro vided him property that lacks an integral safety compo nent, immunity is waived under S ection 101.021(2).
See Friend , 370 S.W.3d at 372.7

This integral safety component doctrine had its genesis in Lowe v. Tex. Tech Univ. , 540 S.W.2d 297 (Tex. 1976), in which the plaint iff complained that Texas Tech University failed to give him a knee brace with his football uniform. Id

. at 298. The Supreme Court concluded that because a k nee brace was, in light of Lowe’ s previous knee injury, an integral part of his football uniform, the failure to furni sh it constituted a use of property sufficient to invoke the waiver of immunity in S ection 101.021(2). Id. at 300. Subsequently in Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169 (Tex

. 1989) , the Supreme Court held that the provision of swimming gear to an epileptic patient without a life preserver also established waiver. Id

. at 171

. But , as the Supreme Court has later explained , “ our recent holdings have limited the precedential value of those two cases. ” Friend , 370 S.W.3d at 372. For example, i n Kerrville State Hosp. v. Clark , 923 S.W.2d 582 (Tex. 1996) , the Supreme
Court stated that Lowe and Robinson represented “the outer bounds of what we have defined as use of tangible pe rsonal property.” Id. at 585. “The precedential value of these cases is therefore 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.” Id. Later, in Texas A& M Univ. v. Bishop, 156 S.W.3d 580 (Tex. 2005) , the Supreme Court further explained that in deciding Lowe and Robinson , “ we did not intend to allow both use and non

- use ( i.e. , failure to provide a more effective safety feature) to effect a waiver of immunity under the Act.” Id . at 584. Rather, providing equipment that lacks “an integral safety component” represents “the outer bounds of what we have defined as use of tangible personal property,” an d the Court will apply its precedent “ narrowly only when an integral safety component is entirely lacking rather than merely inadequate

. ” Id

.8 Analysis UTEP relies heavily on the Supreme Court’s decision in Bishop to support its contention that Palomino ’s remaining claim does not fall within the integral safety component doctrine because the double

- ended pedestal grinder was not completely lacking in a safety component, but at most was merely inadequate in having its safety components on only one side.
In Bishop , the plaintiff, while acting in a university drama club product ion, was inadvertently stabbed in the chest when a fellow actor missed the stab pad the plaintiff wore that was intended to deflect the blow. 156 S.W.3d at 581

. The director of the play, who was an independent contractor, had decided to use a real knife for dramatic effect in the final climatic

scene. Id . at 581, 582. The Supreme Court held that the faculty advisors’ alleged failure to properly supervise the pro ps that the director chose did not constitute a use of tangible personal property under the Tort Claims Act. Id

. at 581. The Court noted that it had recently concluded that a “governmental unit does not ‘use’ personal property merely by allowing someone else to use it and nothing more.” Id . at 583 (quoting San Antonio State Hosp. v. Cowan , 128 S.W.3d 244, 246 (Tex. 2004)). The Court concluded that to the extent the plaintiff was claiming the faculty advisors allowed the director to provide the knife by failing to properly supervise the production, such negligent supervision, without more, did not constitute a “use” of personal property under the Tort Claims Act that would waive the university’s immunity. Id

. The plaintiff also claimed, however, that his case was analogous to Robinson and Lowe i n which immunity was waived when a state actor provided equipment that lacked an integral safety component. Id . at 584. The Supreme Court disagreed, noting that it had previously said those cases represent “the o uter bounds of what we have defined as use of tangible personal property,”9

and that the Court has applied them narrowly only when the integral safety component is entirely lacking rather than merely inadequate. Id . (quoting and citing Clark , 923 S.W.2d at 585). The Supreme Court noted that in Clark it had held that prescribing a medication less effective that an alter native treatment does not mean that the medicine provided lacked an integral safety component. Id . The Court explain ed it had already deter mined in Clark that claims of failing to provide a more effective safety feature would not effect a waiver of immunity under the Tort Claims Act. 4 Id . The Supreme Court held that similarly, the plaintiff’s claim in Bishop that the knife was inherently unsafe without an adequate stab pad did not mean that an integral safety component was lacking for purposes of a waiver of immunity under the Tort Claims Act. Id

. Similarly, in the present case, Palomino’s claim that the ped estal grinder was unsafe because it lacked safety components on the right side does not mean that an integral safety component was entirely lacking for purposes of a waiver of immunity under the Tort Claims Act.
T he evidence is undisputed that the double

- sided pedestal grinder did in fact have two integral safety components installed

— a protector guard and a safety rest , al beit they had been installed only on the left side of t he pedestal grinder. The pedestal grinder was therefore not “entirely lacking ” a n integral safety component. Palomino’s contention that a protector guard or a safety rest should have also been installed on the right side of the pedestal grinder is a claim that the safety components that were installed were “merely inadequate ” to prot ect him and remit s to a claim that UTEP failed to provided him a “ more effective safety feature. ” Accordingly, Palomino

4 The Supreme Court distinguished Lowe and Robinson , explaining that for those cases to apply , the Court would have to assume the university in Lowe would have waived immunity even if it had provided a knee brace if Lowe could have shown another type of knee brace would have better protected him, and that the Court would have to assume that MHMR i n Robinson would have waived immunity even if it had provided a life preserver if Robinson could have shown that MHMR should have provided him with a better one. 156 S.W.3d at 584 (quoting Clark , 923 S.W.2d at 585)

.10

has f ailed to show that his claim falls within the Tort Claims Act’s “use” exception to governmental immunity under the integ ral safety component doctrine. Palomino contends this case is controlled by Tex. State Tech. College v. Beavers , 218 S.W.3d 258 (Tex.App.

– Texarkana 2007, no pet.). In Beavers , the college student was enrolled in a diesel engine testing and repair class and was i njured when he and a fellow student attempted to flip a diesel engine over by using a hydraulic hoist furnished by Texas State Technical College (TSTC). Id . at 260. Beaver’s hand was seriously injured when it was caught between the hoist leg and the engi ne. Id . Despite not finding any evidence that an integral safety component was completely lacking, the Texarkana Court of Appeals held that TSTC had “used” tangible personal property in such a manner as to waive immunity under the Tort Claims Act. Id . a t 265, 267. We believe there are several differences that distinguish Beavers from the present case. First, the court in Beavers noted that TSTC’s sole argument on appeal was that immunity was waived only if a state employee was physically operating the personal property at the time of the injury. Id . at 266. Here, UTEP recognized the narrow exception to that rule and clearly placed into issue Palomino’s failure to bring his case within the integral safety component doctrine. Second, in Beavers there w as evidence presented from three experts that the hydraulic hoist furnished by TSTC was defective, while in the present case, the only expert evidence presented showed that the double

- sided pedestal grinder was not missing any integral safety components bu t was set up in the accepted fashion with protective devices on one side only. Most important, in Beavers the court held that TSTC had not “merely” furnished the hydraulic hoist in large part because the student had been instructed and directed in its use. Id . at 265 (posing the issue to be decided as: “Does the governmental unit ‘use’ the tangible personal11

property when it negligently places equipment . . . into service, instructs the student in its use, and directs the student to use the property?”). I n the present case, the instructor testified that he did not have time to instruct the class in the use of the double

- sided pedestal grinder. Further , Palomino testified the instructor was not around when he wanted to use the grinder, and that
in stead , a teaching assistant told him he could “go ahead ” when he asked if he could use the grinder to dress the weld on the metal piece he had just welded

. 5 Thus, unlike the plaintiff in
Beavers , Palomino was neither instructed nor, more importantly, directed in h is use of the double

- sided pedestal grinder.
W e know of no decision other than Beavers in which a court has concluded that furnishing personal property is somehow transformed into a “use” of property whe n the governmental unit has instructed the plaintiff in the use of that property. The Texas Supreme Court has never found a waiver under those circumstances, and it appears unlikely the Court would do so given its consistent limitations on the integral safety component doctrine and repeated warnings that t he doctrine is to be narrowly applied “only when an integral safety component is entirely lacking rather than merely inadequate.” Bishop, 156 S.W.3d at 584. In this respect, we have determined , in the college

- instruction context , that only an instructor’s direct and mandatory control over the student’s actions could possibly result in a waiver of immunity. El Paso Cmty. College Dist. v. Duran , 2015 WL 4480867, at *4 (Tex.App.

– El Paso July 22, 2015, pet. filed). In Duran , the college had provided the plaintiff with a motorcycle to use in a motorcycle safety class offered by the district. Id

. , at *1. Duran fell and suffered a broken shoulder while driving the motorcycle during the second day of instruction. Id

.

5 We note that Palomino did not make any negligence allegations in his petition concerning the teaching assistant , but rather based his claims solely on the negligence of his instructor.12

Duran sued the college al leging it had waived its immunity through the “operation or use” of a

motor

- driven vehicle. Id . We concluded that because Duran was driving the motorcycle at the time of her injury, immunity was not waived since the “operation or use” of the motor vehicl e must be that of a governmental employee , and not a third person. Id

. , at *2. Duran argued, however, that her instructors had effectively “operated or used” the motorcycle through their class instruction by controlling the manner and method by which she and the other students would use or operate the motorcycle. Id

. , at *2. Duran relied on two cases in which the courts had determined that immunity was waived by the Tort Claims Act even though a government employee was not operating the vehicle that caus ed the plaintiff’s injuries. See County of Galveston v. Morgan , 882 S. W .2d 485, 490

- 91 (Tex.App.

– Houston [14 th Dist.] 1994, writ denied) (county employee “operated and used” truck because the employee was responsible for signaling the driver and control ling his operation of the truck that resulted in plaintiff’s injuries); City of El Campo v. Rubio, 980 S.W.2d 943, 946

- 47 (Tex.App.

– Corpus Christi 1998, pet. dism’d w.o.j.) (police officer “operated or used” vehicle when he ordered plaintiff, an
unlicens ed driver, to drive vehicle and follow him back to the police station resulting in plaintiff’s injuries). We concluded that Duran’s reliance on the se two case s was misplaced because the government employees in both case s were considered to have used or op erated the vehicle only because they exercised direct and mandatory control over the driver’s actions. Id

. , at *4. While the instructors in Duran’s class directed her operations of the motorcycle in the sense they were teaching her how to drive it, Duran was not being compelled to obey their instructions. Id

. , at *4. Duran did not plead or present any jurisdictional evidence that she had no choice by to follow their directions, and the only penalty Duran would have incurred for non

- compliance was dismis sal13

from the class. Id

. , at *4. We concluded therefore that Duran failed to establish a waiver of immunity under the Tort Claims Act because she had failed to show that her instructors had exercised direct and mandatory control over her actions

. Id

. , at *4. Similarly, Palomino has not shown that any UTEP employee exercised direct and mandatory control over his use of the pe destal grinder or that he h ad no choice but to follow any such directions. At most, Palomino has only raised a fact issue that a teaching assistant told him he could “go ahead” and use the grinder. Accordingly, Palomino has failed to establish a waiver of immunity under the Tort Claims Act. We therefore grant UTEP’ s issue on appeal. CONCLUSION Because UTEP’s immunity was not waive d by the Texas Tort Claims Act under the integral safety component doctrine , we reverse the trial court’s order to the extent it denied UTEP’s plea to the jurisdiction on Palomino’s integral safety component claim and dismiss all of Palomino’s claims for l ack of jurisdiction.

STEVEN L. HUGHES, Justice August 24, 2016 Before McClure, C.J., Rodriguez, and Hughes, JJ.