### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-07-00681- CV

Texas School f

or the Blind an d Visu ally Impaire d, App ellant

v. Mel Dugosh, Ind ividu ally and as Ind ependent Executor of the Estate of Christopher Dugosh; and Richard Dugosh, In divid ually, Ap pellees 1

F ROM TH E P ROB ATE COURT NO . 1 O F TRAVIS CO UNTY NO. 845 15A, H ONO RAB LE GUY S. H ERMAN, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

The dispositi ve issue in this appea l is whether sovere ign immunit y bars a wrong fuldeath and survival action arising from the choking death o f a resident at the Texas School for the Blind and Visually I mpaired (TSBV I ). For the rea sons we explain here in, we are compelled to conclude that it does. Consequently , beca use t he trial court below held t o the contrary in deny ing

a plea to the jurisdiction asser ted by TSBVI , we must reve rse the court’s order deny ing the plea and rende r judg ment dismiss ing the action.

TSBVI ’s notic e o f ap p eal identified appellee s as “Mel Dug osh and Richard Dug osh, 1 I ndividually and as next friend of C. D.” We have corr ecte d the caption to ref lect that Mel Dug osh is appea ring in her capa city as independe nt executor of Christopher’s estate rathe r than as next friend.BACK GR OUND On May 3, 1985, Christophe r Dug osh was born with profound developmenta l defe cts that included Cornelia de L ang e sy ndrome (a g enetic disorder that can manifest throug h numerous phy sical and intellectual limit ations), defor med arms and han d s , sever e mental reta rdation, hear ing and vision impairments that his persona l phy sician classified as deaf ness and b l i n dness, orthopedic limit ations, g rowth lim it a ti o n s , a n d v a r io u s c o n d it io n s a f

f e c ti n g h is g a s tr ointestinal trac t. 2 During Christopher’s first eig hteen y ear s, his pare nts, Richard and Mel Du g osh, serve d as his primary car eg ivers, aided by what Richard termed som e “o ff and on” nursing support. On Aug ust 17, 2003, his pare nts enrolled Ch ri stopher at TSBVI , wher e he lived in a dormitory environment with other students. Prior to enrollment, Christopher’s phy sician advised TSBVI of his many medical conditions and war ned that Christopher was at risk of “choking .” Consequently , the phy sician cautioned, Christopher require d a “toddler” diet with “no milk, beef , small portions.” Wit hin a half hour following his evening meal on May 19, 2005—six teen day s af t er his twentieth birthday —Christopher beg an g asping for air, collapsed, and ultimately died. Emerg ency responde rs who wer e summoned to the scene repor ted that they fo und what appea red
to be piece s of brocc oli in Christopher’s mouth. A subsequent autopsy reve aled that Christopher’s “upper airwa

y was packed with chunks of poorly chewed food m ater ial including a porti on of t he end of a hot dog measuring 1 inch all around

. . . piece s of brocc oli measuring up to 1-1/2 inches in dimension as well as simil ar piece s of dumplings.” S i m i l ar l y , Christopher’s “esopha g us was packe d with abundant amount of poorly chew ed larg e portions of brocc oli, hot dog s, dumplings and

At ag e 20, Christopher wa s four fe et, five inc hes in heig ht and weig hed 66.5 pounds. 2 2other solid food mat er i al

. ” I t is undisputed that TSBVI personne l had g iven Christopher piece s

of brocc oli, hot dog , and fre nch fries (the latter corr esponds to the medical examiner’s repor t of “dumplings” ) during his evening meal. The medical examiner identified the cause of Christopher’s death as the “re sult of asphy x ia due to choking on bolus [a mass] of food. A contributing condition is Cornelia de L ang e sy

ndrome.”
Mr. and Ms. Dug osh, individually as Christopher’s heirs and wrong ful-death benef iciarie s, and Mel Dug osh, in her capa city as the independe nt administrat o r of Christopher’s
est ate, (collectively , the Dugoshes) sued TS BV I seeking monetary damag es for what they all ege d

was neg lige nce or g ross neg lige nce of TSBVI personne l that p roxi mately cause d Christopher’s death. TSBVI interposed a plea to the jurisdiction asser ting that the Dug oshes’ claims wer e barr ed 3 by sovere ign immunit y . I n support of its plea, TSBVI advanc ed two arg uments. First, it arg ued that the Dug os h es h ad failed to alleg e fac ts that would demonstrate a neg lige nt “condition or use” of tang ible persona l proper

ty that proxi mately cause d Ch ri s t o p h er ’s death, so as to come within the waiver of sovere ign immunit y contained in section 101.021(2) of the civil prac tice and reme dies code. See Tex. C i v . P ra c. & Rem. Code Ann. §§ 101.021(2), .025 (West 2005). Second, TS BV I
arg ued that the TSBVI employ ees imp l i ca t ed b y the Dug oshes’ alleg ations, and from whom the instit ution’s liability would derive , wer e shi elded by officia l immunit y u nder the education code. See id. § 101.021(2) (wa iver tied to whether g overnme ntal unit “would, wer e it a p ri v at e p erson,

See Tex. Civ. Prac. & Rem. Code Ann. §§ 71.0 0 1 -0 04 (wrong ful-dea th statute), .021 3 (survival statute) (West 2008). 3be liable to the claimant acc ording to Texas law”) ; DeW itt v. Harris County , 904 S.W .2d 650, 654 (Tex. 1995).

W i t h t h eir plea to the j urisdiction, TSBVI moved t o dismiss the Dugoshes’ clai m s under chapte r 74 of the civil prac tice and reme dies code, in the view that the Dug oshes’ claims wer e “hea lth car e liability claims” and that the Dug oshes had failed to serve the expert repor t require d by that chapte r. See Tex. Ci v. Prac. & Rem. Code Ann. § 74.351 (West 2005 & Supp. 2009).

Following a hear ing in which both sides prese nted evidenc e, the probate court denied both TSBVI ’s plea to the jur i s d i ct i o n an d its chapte r 74 dismiss al motion. I n its order , the court included the f

ollowing pe rtinent “finding s” or c onclusions:

1. Plaintiffs have prese nted fac ts wher ein the condition and the use of tang ible persona l proper

ty are such that a claim can be made pursuant to the statutory waiver of sover eig n immunit y

under the Texas Tort Claims Act; * * * 3. Plaintiffs’ claims are not subject to the expert repor t require ments of Texas Medica l L iability

Act; and 4. the immunit y provi s i ons set out in Texas Educa tion Code §§ 22.0511 & 22.052 are irrele vant to Plaintiffs’ claims as Def endant is not an independe nt school district.
This appea l ensued. See id. § 51.014(a) (8), ( 9) (West 2008).

DISCUSSIO N
T S BV I b ri n g s three issues on appea l that corr espond to the three g rounds for dismiss al it urg ed below. I n its third issue, TSBVI arg ues that the probate court err ed in deny ing its

4plea to the jurisdiction beca use t he Dugoshe s do not asser t that any thing c onstitut ing a

“condition

or use” of tang ible persona l proper ty proxi mately cause d Christopher’s death, so as to come within the sovere ign- immunit y waiver of section 101.021(2). I n its second issue, TSBVI contends that it conclusively established that the personne l implicated by the Du go s h es’ claims wer e shielded by officia l immunit y , thus establishing that it would not be vicar iously liable under Texas law for those actions and there by neg ating a waiver under section 101.021(2). Finally , in T SBVI ’s first issue, it

asser ts that the probate court abused its discretion in deny ing its motion to dismiss under chapte r 74 of the civil prac tice and reme dies code. I n a cross-point, the Dug oshes asser t that the probate court abused its discretion in excluding cer tain d ep o s i t i o n excerpts they soug ht to introduce during the hea ring

. TSBVI ’s third issue and the D ug oshes’ c ross-point are dispositi ve.

Stand ard of review

A plea to the jurisdiction challeng es a trial court’s authority to adjudicate a plaintiff’s

cause of action. See Texas Dep’ t of Parks & W ildlif e v. Mi randa , 133 S.W .3d 217, 225-26 (Tex. 2004). Analy sis of whether this authority exis ts beg ins with the plaintiff’s live pleading s. Id.
at 226. The plaintiff has the initial burden of alleg ing fac ts that aff irmatively demonstrate the trial court’s jurisdiction to hear the cause . Id. (citing Texas Ass’n of Bus. v. Texas Air Control Bd. , 852 S.W .2d 440, 446 (Tex. 1993) ). Whether the plaintiff met this burde n is a question of law that

we revie w de novo. Id. We construe the pleading s liberally and look to the pleade r’s intent. Id. I f the pleading s do not contain sufficie nt fac ts to aff irmatively demonstrate the trial court’s jurisdiction but do not aff

irmatively demonstrate incurable defe cts in jurisdiction, the i ssue i s one of pleading

5sufficie ncy and the plaintiffs should be aff orded the opport u n i t y t o amend. Id. at 226-27. I f, on the other hand, the pleading s aff irmatively neg ate the exis tence of jurisdiction, t h en a p l ea to the jurisdiction may

be g rante d without allowing the pla intiffs an opportunity to amend. Id. at 227. When de ciding a plea to the jurisdiction, we may consider evidenc e that the parties have submitt ed and must do so when nece ssary to resolve the jurisdictional issues. Bland Indep. Sch.
Dist. v. Blue , 34 S.W .3d 547, 555 (Tex. 2000). I n fa ct , i n a p l ea to the jurisdiction, a party may
prese nt evidenc e to ne g ate the exis tence of a jurisdictional f act alleg ed in the pleading s. Miranda , 1 33 S.W .3d at 227. To the extent the challeng e implicates the merits of the plaintiff’s ca u s e o f action, as here , the party asser ting the plea has the burden of neg ating a g enuine issue of materia l fac t

as to the jurisdictional fac t’s exi s t en ce , t h e same burden a movant must meet to preva il on a traditional summary -judg ment motion. See id. at 227-28. Whether t he party meets t his burden is

a question of law that we revie w de novo. Id. at 228. I n making this deter mination, we take as true all evidenc e favor able to the pleade r and indulge ever y rea sonable infere nce and resolve any doubts in the pleade r’s fa

vor. Id. 4
Sovereign im m uni ty: ge neral conce pts

Although the historical orig ins of the doctrine are found i n conce pts of roy alty that

are fore ign to Americ an constitutional sy stems, sovere ign immunit y is nonetheless deeply rooted in the Tex as co m m on law, althoug h its underlying rationale s have evolved considera bly , and it still

A somewhat differ ent standard applies when a challeng e to a jurisdictional fac t’s exis tence 4 does not implicate the merits of the pleade r’s cause of action. University of Tex. v. Poindexte r ,

___ S.W .3d ___, No. 03-04-00806CV, 2009 W L 1 8 9 6 0 7 1 , at *3 (Tex. App.—Austin J uly 3, 2009, no pet.). 6stands as a barr ier ag ainst suits an d l i ab i l i t y for money damag es from the State, its ag encie s

and instit utions, or state personne l in their officia l capa cities. See City of Round Rock v. W

hiteaker , 241 S.W .3d 609, 626 (Tex. App.—Austin 2007, pet. denied) (citing City of Galve s t o n v. State , 217 S.W .3d 466, 468 (Tex. 2007) ; Reata Constr. Corp. v. City of Dallas , 197 S.W .3d 371, 374-75 (Tex. 2006); Tooke v. City of Mex ia , 197 S.W .3d 325, 331-32 (Tex. 2006); Hosner v. De Y oung , 1 Tex. 764, 769 (1846))

. The primary contempora ry justificat i o n fo r sovere ign immunit y is that individual citizens should bear the risk and cost of what are delicate ly terme d t h e governme nt’s “improvident acts” beca

use it is considere d benef

icial to insulate the g overnme nt (and the taxpay ers who fund it) from the civil liability private- sector persons would fac e for the same acts. W hiteaker , 241 S.W .3d at 626 (citing Reata Constr. Corp ., 197 S.W .3d at 375; Tooke , 197 S.W .3d at 331-32).

Where it applies, and unless it is waived, so v er eign immunit y from suit deprive s a trial c ourt of subjec t-matter jurisdiction. Id. Consequently , beca use they seek to re cover

money d am ages from TSBVI (which, they do not dispute, is a state instit ution), the Dug oshes’ suit implicates sovere ign immunit y , which, unless waived, deprive s the probate court of subject-matter jurisdiction over their suit. See id.

Whil e sovere ign immunit y is a common-law doctrine that is ultimately within the Texas Supre me Court’s province to modify or even abrog ate, see Texas Dep’ t of Crim. J ustice

v. Miller , 51 S.W .3d 583, 592-93 (Tex. 2001) (He cht, J ., concur ring ), the high court has nonetheless defe rre d to the leg islature to decide when, if, or how to waive such immunit y wher e it applies, in the view that this body is better suited to weig h the publ ic-policy considerations that bear u p o n t h ose judgme nts. See W

hiteaker , 241 S.W .3d at 626-27 (“ [T] he judiciar y has def err ed to the leg islature

7to decide when, if, or t o what ex tent to waive immuni ty , as t h es e d ec i sions entail s ensitive policy

judgme nts conce rning the use of public resour ces and g overnme ntal fu n ct i o n s that are the proper d o m ai n o f the leg islative rathe r than judicial branc h.”); see also City of Galveston , 271 S.W

. 3 d
at 469 (empha siz ing that waiver of im munity “depe nds entirely upon statute”) (quoting Dallas County Mental Health and Mental Retardation v. Bossley , 968 S.W .2d 339, 341 (T ex . 1 9 98)). Relatedly , it is said that there exis ts a “hea vy presumption in favor of immunit y ,” City of Galveston , 271 S.W .3d at 469, an d t h at “spec ial rules of construction apply ” to statutes that are asser ted to be waiver s of immunit y

—“no statute sh o uld be construed to waive immunit y absent ‘cle ar and unambig uous lang uag e.’” State v. Oakley , 227 S.W .3d 58, 62 (Tex. 2007) (quoting Tex. Gov’t Code Ann. § 311.034 (West 2005 & Supp. 2009).
The Dugosh es’ c laim s

To establish the probate court’s subject-matter jur i s d i ct i on, the Dug oshes have relied on one of the leg islative waiver s of sovere ign immunit y found in t h e t o rt cl aims act, section 101.021(2) of the civi l prac tice and reme dies code. That provision partially waives a “g overnme ntal unit’s” immunit y from suit and liability for “per sonal injury and death so cause d by 5

a condit i o n or use of tang ible persona l or rea l proper ty if the g overnme ntal unit would, wer e it a private person, be liable to the claimant acc ording to Texas law.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (wa iving liability ); see id. § 10 1

. 0 2 5 (waiving immunit y from suit “to the extent of

The Dug oshes do not dispute that TSBVI is a g o v er n m en t al unit. See Tex. Civ. Prac. 5 & Rem. Code Ann. § 101.001(3)( A) , (D ) (W est 2005) (def ining “g overnme ntal unit” under tort claims ac t). 8liability cre ated by this chapte r”)

. To establish a waiver of TSBVI ’s s o v er ei gn i mmunity under 6 section 101.021(2), the Dug oshes had the initial burden of alleg ing fac ts aff irmatively demonstrating that (1) a neg lige nt or other c ulpable “c ondition or use” of ( 2) “ta ng ible persona l or rea l property ” (3) proxi mately cause d Christopher’s death; and (4) TSBVI would be liable to them under Texas law for these acts or omissions if it wer e a private person. See Dallas County Mental Health & Mental Retardation v

. Bossley , 968 S.W .2d 339, 343 (Tex. 1998) ; Lowe v . Texas Tech U niv. , 540 S.W .2d 297, 299 (Tex. 1976). To meet this burden , t h e Dug oshes attempted to asser t two theories they contend constitute the requisite “condition or use” of tang ible persona l proper ty nece ssary to waive immunit y under section 101.021(2)—( 1) the TSBVI personne l who prepa red, served , or “fe d” Christopher his last meal neg lige ntly or with g ross neg lige nce g ave him piece s of food much larg er than he could safe ly consume, g iven his limit ations and conditions, proxi mately causing his choking d ea th; and (2) the TSBVI personne l neg lige ntly or with g ross neg lige nce administered a fa t al overdose of medica tion to C hristopher.
Food piece sizes Pleading allegations Reg arding their first wa iver theor y , the Dug oshes pled the f ollowing f

acts:

At the time o f h i s death, Christopher Dug osh was a student at [TS BV I ]. Christopher was blind, deaf and profound l y i m paire d due to birth defe cts. His I Q was betwee n 20 and 25. His arms and leg s wer e defor med and he was far below the weig ht and heig ht for his ag e.

See also id. §§ 101.023(a) (West 2005) (limits on State’s liability exposure ), .024 6 (West 2005) (no wa iver for exemplary

damag es). 9The Dug oshes attache d a waist-up photogr aph of Christ o p h er to their petition. I t shows

phy sical fea tures including the form and config uration of Christopher’s arms. Eac h of Christopher’s

arms is bent sharply upwar d from the elbow are a, in a manner somewhat rese mbling a wing

on a baby bird

. Eac h arm ends in a single thumblike digit that is bent sharply downwar d from the wrist ar ea. The Dug oshes continued:

Mr. and Mrs. Dug osh informed TSBVI , throug h its employ ees, that Christopher should be g iven small food port i o ns beca use his birth defe cts made it difficult for him to dige st food and he was at risk for choking

. Mr. and/or Mrs. Dug osh demonstrated to T SBVI ’s employ ees the siz e of the food Christopher s h o u l d be g iven and told them that he should be g iven a toddler’s diet. M r. an d Mrs. Dug osh also provided a book to T S BV I t hat contained information on Christoph er ’s co ndition. That book also stated that Christopher was to be fed a t o d d ler’s diet. TSBVI ’s employ ees wer e also provided a diag ram or draw ing o f the siz e of Christopher’s food. TSBVI ’s employ ees car ing for Christopher knew or should have known that Christopher’s food was to b e cu t u p in small piece s, i.e., piece s smalle r t han the hot dog s and brocc oli serve d and fed to Christopher by Cogbur n and Smith on May

19, 2005. Chris Cogbur

n and Carl Smit h wer e responsible for Christ o p h er’s car e on the night that he day [si c] that he died, May 19, 2005. Cogbur n and Smit h wer e employ ees of

TSBVI and we re acting in the course and scope of their employ ment with TSBVI on the date of Christopher’s death. On May 19 , 2 0 05, TSBVI employ ees including Chris Cogbur n and Carl S m ith selec ted, boug ht, prepa red, cooked and cut Christ o p h er Dug osh’s food for his dinner meal and fed that food to Christopher to eat. Christopher had defor med arms and could not eat wi t h out assistance from Cogbur

n and Smit h. Cogbur

n and Smit h cut piece s of brocc oli and hot dog and fed such food to Christopher Dug osh to eat. The siz e of the brocc oli was 1 1⁄2 inches long and the s ize of t he hot dog wa s 1 i n ch al l around. Approxim ately four piece s of brocc oli and hot dog wer e g iven to Christopher by Cogbur n and Smit h. Christopher was g iven fre nch fr ies which we re not c ut into sm all piece s. Christopher choked on the brocc oli, hot dog s and other food prepa red, serve d and provided to him by Cogbur n and Smit h. The 1 1⁄2 " piece s of brocc oli and 1 inch all around piece s of hot dog wer e far larg er than the portions that would be consistent

10with a toddler diet, wer e larg er than the siz e of the piece s of food demonstrated to the

staff of TSBVI by Mr. and/or Mrs. Dug osh and wer e larg er than the siz e of the food o n t h e diag ram or draw ing available to Cogbur n and Smit h on the d at e o f Christopher’s death

. C og burn and Smit h’s neglig ence in providing 1 1⁄2" pieces of brocco l i and 1 inch all around piece s of hot dog to Christopher was a proxi mate cause of Christopher’s c hoking, a sphy x iation, and dea th.

There is no dispute that the Dug oshes sufficie ntly alleg ed that the acts or omissions of which they complain wer e committed by TSBV I p er s onnel acting within the scope of their employ ment and for which the instit ution, wer e it a private employ er, would be leg ally responsible.
Nor is there any dispute t h at the food portions these employ ees prepa red, serve d and/or “fe d” to Christopher wer e the “tang ible persona l proper ty ” of TSBVI under section 101.021(2). Howeve r, 7
TSBVI has challeng ed whether the fac ts the Dug oshes alleg e constitute a “condition or use” of the food portions and whether they have demonstrated a sufficie nt causa l nexus betwee n any such
neg lige nt or wrong ful “use” or “condition” and Christopher’s death by choking

. Be fore turning to
t h ese leg al questions, we must first take into acc ount the jurisdictional evidenc e that the parties prese nted to the probate court. See Miranda , 133 S.W .3d at 227; Bland Indep. Sch. Dist. , 34 S.W .3d at 555.

See University of Tex. Med. Branch at Galveston v. Y ork , 871 S.W .2d 175, 178 (Tex. 1994) 7 (“A lthough ‘tang ible’ i s not define d in t h e T o rt C laims Act, there can be li ttle doubt that tang ible persona l property

ref ers to something that has a c orpore al, conc rete , and palpa ble exist ence .”). 11Jurisdictional evidenc e How Christopher wa s “fe d” Although TSBVI did not dispute that its personne l had cooked, prepa red, cut i n t o piece s, and ser v ed t h e food on which Christopher later choked, TSBVI prese nted evidenc e in an attempt to neg ate a

ny alleg ation that its personnel had placed food either directly in Christopher’s mouth or onto his eating utensil. TSBVI ’s evidenc e included documents ref lecting the status of Christop h er ’s l i fe skills at various junctures during his time at TSBVI ; an excerpt from the deposition of Ker im Pierce , one of the TSBVI employ ees involv ed wi t h Christopher’s car e; the medical ex aminer’ s autopsy repor t; an d an affidavit from Monte Chambers, R.N., the di rec tor of 8
TSBVI ’s Hea lth Cente r. Chambers’s aff idavit attache d medical- history forms from Christopher’s
p e r s o n a l p h y sician descr ibing Christopher’s conditions and imp a ir me n ts

— a n d in c lu d in g th e w a

r n in g
t h at Christopher was at risk of “choking ” and require d a “toddler” diet with “no milk , b ee f, small portions.” The Dug oshes, in turn, prese nted, in addition to the afor ementioned photogr aph of Christopher, live testimony from Christopher’s fathe r, appellee Richard Dug osh, and Carl Smit h

9 and Chris Cogbur

n, the TSBVI personne l implicated by the Dug oshes’ pleading alleg ations. TSBVI also elicited important testimony from Smit h and Cogbur n on cross-e x amination. Both sides wer e also permitted to re ad some de position ex cer pts into t he re cord.

The repo rt wa s i n cluded in medical rec ords that had been subpoenae d from 8 Christopher’s psy chiatrist. As discussed below, the copy of t he report i n evidenc e i n cluded some handwr itten notes.

The Dug oshes also in t ro d u ced a photogr aph of the adapte d spoon Christopher used 9 at TSBVI , discussed below. 12Smit h and Cogbur n ack n o wl edg ed that, as the Dug oshes had alleg ed, they wer e the TSBVI personne l who had been responsibl e for prepa ring and serving Christopher his last meal and that this meal had consisted of brocc oli, a hot dog , and fre nch fries. Smit h, who had been Christopher’s “primar

y residenc e instructor,” admitted that he had prepa red the hot dog and broken i t i n to four piece s for Christopher to consume. He further stated that either he or C o gb u rn h ad simil arly broken the fre nch fries into piece s. Cogb u rn , i n turn, admitted that he had prepa red the brocc oli and cut it into piece s, althoug h he could not reme mber the number of piece s. Smit h further admitted that beca

use of Christopher’s limit ations, Christopher was depende nt on them to prepa re, cut, and serve his food, as he “had no way of cutting his own food himself and fee ding it to himself.” Smit h and Cogbur

n likewise acknow ledg ed that they had rema ined in close proxi mity to Christopher while he wa s eating

.

TSBVI prese nt ed evidenc e that by the time of Christopher’s last meal, he had b ec o m e proficie nt in using an adapte d spoon to scoop up food and move it to his mouth. The Dug oshes introduced a photogr aph of the spoon into evidenc e. The photogr aph shows a spoonlike device with a strap that was used to attach it to Christopher ’s arm. I n his deposition, Ker im Pierce

rec ounted that Christopher’s spoon had “sort of revolutionized his eating beca use it allowed him to be independe nt in scooping his food and eating it, wher eas previously

. . . he had been fed mostly .” TSBVI also in

tr o d u c ed two documents on its letterhe ad titled, “Residential Annual Report of Present Competencies.” Eac h document contains a summary of Christopher’s “streng ths” and “nee ds” with
respe ct to “domestic” and “re cre ational/leisure” “basic skills” and identifies various “priority are as”

or g oals for Christopher’s further development in these are as. The f irst of these doc uments, dated

13Fe bruar

y 26, 2004, identifies among Christopher’s “dome stic” skills streng ths, “Chris has lear ned
to eat very eff

ectively with an ad ap t ed s p o o n , and can use an adapted cup to drink.” The second, dated J anuar

y 10, 2005, states, “Chris has lear ned to eat very neatly with an adapte d spoon, and does

so with no assistance except to aff ix the spoon to his arm.” Eac h documents contains both Richard and Mel Dug osh’s signatures, along with those of var ious other TS BV I educators and counse lors, verify ing that eac h had been prese nt at a meeting to discuss the “proc eeding s and rec ommendations,” understood wha t had bee n discussed, and a g ree d with the proce eding s and re commendations.

Cogbur n square ly denied that he ever assisted Christoph er i n getting food into his mouth. TSBVI ’s counsel was also permit ted to rea d into the rec ord an excerpt from Smit h’s deposition in which Smit h simil arly denied that any one helped Christopher fee d himself during his last meal. Howeve r, Cogbur n’s testimony was inconsistent and somewhat equivoca l as to whether 1 0 he ever assisted Christopher in g etting food onto his spoon. I nitially , when asked by the Dug oshes’ counsel whether he helped Christopher with g etting the hot dog or brocc oli into his mouth, Cogbur n admitted that “I help him with the spoon” by “putting the spoon on the plate and helping him g et the food on it.” I n response to further questioning, Cogbur

n observe d that food would sometimes fall off Christopher’s spoon while he was try ing to eat it. He was then asked by the Dug oshes’ counsel whether he would help Christopher g et the food back on the spoon in t h at s i t u ation. Cogbur n

Smit h testified: 1 0 Q: [by

the Dug oshes’ c ounsel] Did Chris feed himself tha t night with his spoon or did someone he lp him? A: He f

ed himself.

14responde d, “I don’t rec all if I —if that was something I would do.” L ater , the Dug oshes’ counsel
returne d to that question, and Cogbur n persisted in deny ing rec ollection of what he would do when food fell off of Christopher’s spoon. Then, during cross-e x amination by TSBVI ’s counsel, Cogbur n divulge d that if “the hot dog falls off onto the table,” he would “put it back on the plate,” but ag ain claimed that he did not rec all what he would do when food fell off Christopher’s spoon. Howeve r, with continued questioning by TSBVI ’s counsel, Cogbur n beg an repe atedly deny ing that he place d food either in Christopher’s mouth or on his spoon. At that juncture, Cogbur n also insisted that the lack of rec ollection he had previously acknow ledg ed concer ned whether, when returning dropped food to Christopher’s plate, he might have place d the food onto Christopher’s spoon if the spoon was positioned there. 1 1

The following exchang e betwe en Cog burn and TSB VI ’s counse l is il lustrative: 1 1 Q: Did y ou ever

lift food from Christopher’ s plate and put it into his mout h? A: No. What I do is I —I make s u re t h e p i eces are cut and acc essible for the kids. Q: Okay . So y ou prepa red the food? A: I prepa

re the food. Q: And y ou put it in t he plate? A: And I

put it in t he plate. Q: But y ou don’t— A: And t h e i f h e—the hot dog falls off on to the table I put it back on to the plate. Q: On the plate, oka

y ? 15A: Yea h. Q: But not on to the spoon? A: I don’t rec all—I don’t—that’s—that’s a

— Q: I s that what y ou’re say ing y ou don’t rec all about? A: That’s what I ’m say ing I don’t rec all. And I don’t—I don’t do that. I don’t —I don’t put the food on the spoon a nd I don’t lift it to t he kids’ mouth. Q: Okay

. A: My

—my not rec alling is the—putting it on to the plate when there is a spoon on the plate. Tha t’s a g ray are a, putting on the plate. Q: You rec all may

be—and I —and I ’m not try ing to f

eed y ou words, I ’m try ing to fig ure out what it is that y ou don’t rec all. And the Court—the Court needs to know this too. A: Yea

h. I don’t rec all––I don’t put the food on the spoon and I don’t fee d the kids. Q: Okay

. A: What I don’t rec all is—I mean, I put the food on the plate and—. . . A: I think I ’m making this more complicated beca use I don’t put the food on the spoon. What made me say I don’t rec all is that the—t h e spoon is on the plate, I put the food on the plate , it ge ts on the spoon. I t’s not— Q: I understand. A: I f that make s sense. Q: I understand. So if y ou — if a piec e of f ood had g otten out of

the plate a

nd y ou—like on the table a

nd y ou put it back on the plate— A: Uh-huh.

16As for Richard Dug osh, he testified that during the eig hteen y ear s when he and Mel

w e r e Ch r is to p h e r ’ s p r im a

r y c a r e g iv e r s , Ch

r istopher had require d continual monitoring and assistan c e when eating , even when using an adaptive spoon, and “wouldn’t be able to fee d himself.” Richard elabor ated that becau s e o f the difficulties Christopher encounte red in using his arms, food would roll or fall off his spoon. Consequently , Richard rec ounted, a car eg iver would need to rema in with Christopher while he ate and put food back on the spoon when it f ell off. Howeve r, while Richard indicted that it would sometimes be nece ssary to administer medication to Christopher by spooning it into his mouth, as he “would spit it out” otherwise, Richard did not testify that car eg ivers would place food direc tly

into his m outh. Richard further asser

ted, without citing sp ecif ic fac tual support, that the extent
to which Christopher require d assistance when eating rema ined unchang ed afte r Christopher moved to T SBVI

. During cross-e x amination, howeve r, Richard conce ded that he had no persona l knowledg e of how Christopher ate his meal on t h e ev en ing he died. Richard also acknow ledg ed

s ig n in g th e tw o p r e v io u s ly d is c u s sed TSBVI “Residential Annual Reports of Present Competencies.”

Q: —if the spoon might have been in the—in the plate or on the plate y ou might have actua lly put it on the spoon in that circ umstance. I t’s not that y ou would have de liberate ly

put it on the spoon. I s that what y ou wer e say ing? A: Yea

h. That’s wha t I don’t rec all too, it’s not—I don’t—I ’m not— Q: You don’t re call that with spec ificity ? A: I don’t rec all the specific ity and the g rada tion of the spoon—the spoon is like this and the hot dog rolls on the spoon. I t’s just that I don’t rec all. That’s—I don’t put the food on the spoon and I d o n ’t assi st a kid with delivering the food to his or her mouth. I don’t—

17I n addition, the Dug oshes’ counsel was permitted to r ead into the rec ord an excerpt

from the deposition of Mary L ou Rink, the TSBVI ’s dietician at the time of Christopher’s death, to the eff ect that Christopher’s conditions nece ssitated that some o n e rema in with him while he ate and 1 2

an excerpt from Cogbur

n’s deposition in which he stated that, afte r he and Smit h prepa red the food, “We fe d Chris.”

On this rec ord, we conclude that TSBVI has met its burden of conclusively neg ating
any alleg ation that Smit h or Cogbur n place d food direc tly into Christopher’s mouth with a n eating utensil or otherwise. See Miranda , 133 S.W .3d at 227-28. TSBVI prese nted evidenc e that neither Smi t h n o r Cogbur

n “fe d” Christopher in this manner , and the Dug oshes prese nted no evidenc e
t h at t h ey did. The conclusion that Smit h or Cogbur n “fe d” Christopher in some manner , with o u t
more, is insufficient to raise a fac t issue as to whether they did so by placing food in his mouth. See id. ; Ryland Group, Inc. v. Hood , 924 S

. W

. 2 d 1 2 0 , 122 (Tex. 1996) (per curia m). Howeve r, we conclude —espec ially in light of Cogbur n’s testimony

—t h at T S BV I has not met its burden to

Rink testified: 1 2 Q: Somebody

would be ther e with him [ Christopher]? A: Uh-huh. Q: Why

would they

be ther e with him? A: Well, a toddler diet, somebody would need to be fee din g, y ou know, be sitti ng there with him while he ate. Q: Why

would somebody

need to be there with him while he ate? A: Be cause he couldn’ t eat by himself.

18conclusively neg ate the alleg ation that Cogbur n “fe d” C hristopher by placing food on his adapte d
spoon and helping him put food back on the spoon when it fell off. Consequently , we presume the truth of that alleg ation—along with the Dug oshes’ unchalleng ed alleg ations that Smit h and Cogbur n
prepa red Christopher’s meal and cut the brocc oli and hot dog into the siz ed piece s descr ibed in the medical exami n er’ s repor t—when analy

zing whether the Dug oshes have asser ted the require d “condition or use” of tang ible persona l property under se ction 101.021(B ). See id.

Causal nexus between the food and Christopher ’s dea th
T S BV I p re s en t ed ev i d ence in an attempt to establ i s h t h at s ev er al m i n u t es passed betwee n the time that Christopher finished eating and when h e fi rs t b egan choking

. The medical ex ami ner’ s repor t ref lects a contempora

neous acc ount from Smit h that Christopher ate dinner at approximately 4:50 p.m., was play ing in his room at approx imately 5:05 p. m., and then, at approx imately 5:26 p.m., ran down the hallway g asping for air and collapsed in front of S mith. Cogbur n simil arly testifi ed t h at t h e choking event occur red 15-20 minutes afte r Christopher had finished eating. Acc ording to Cogbur n, “When C hris finished eating he we n t i n t o his room and I clea ned his plate and the—the table and I went into the common are a and was talking and watching
TV with the kids and Ker im and Mike Be ninge r [another TSBVI staffe r]. And then Chris came out

an d t h en went—he came into the common are a and then went back into his room and then came back out ag ain a couple minutes later and that’s when h e looked—he looked like he was having trouble and that’s when Ker im and Mike went and assisted him.” Cogbur n indicated that there was

no question Christopher had finished his meal and swallowed all of his food befor e g oing to his room. The Dug oshes did not present e vidence to controver t that at least fif

teen to twenty

minutes

19elapse d betwee n the t ime Christopher finished his meal and when he beg an showing signs of

choking and that Christopher ha d even be en play ing in his room for

approximately

15-20 minutes in the meantime.

On the other hand, Cog burn ac knowledg ed that Christopher ha d reg urg itated some of his food befor e he choked and had reg urg itated “just a dribble” while still eating

. As previously noted, the medica l examiner later f ound “poorly

chew ed” por

tions of food materia l—“including a portion of the end of a hot dog measuring 1 inch all around . . . pie ces of brocc oli measuring up to 1-1/2 inches in dimension as well as simil ar piece s of dumplings”—“ packe d” in both Christopher’s
upper airwa

y and his es o p h agus. I t was “asphy x ia due to choking on bolus of food,” with his Cor nelia de L ang e sy

ndrome a “contr ibuting condition,” that the medical examin e r c o n c lu d e d c a u s e d Christopher’s dea

th.

Cutti ng -up of the f

ood Finally , beca

use it b ec o m es signific ant to our analy sis below, we note that TSBVI
prese nted uncontrove rted e vidence that either Smith or Cogbur n broke the fre nch fr ies into pieces befor e serving them to Christopher. Whil e the Dug oshes had pled that “Cog burn and S m ith cut piece s of brocc oli and hot dog ” (which the jurisdictional evidenc e confirme d), they also had alleg ed that “Christopher was g iven fre nch fries which wer e not cut into small piece s.” The latter alleg ation is neg ated by the uncontrove rted evidenc e that Smit h or Cogbur n did, in fac t, brea

k the fre nch fries into pieces be fore serving them to Christopher. See M iranda , 133 S.W .3d at 227-28.

20Analysis
We now consider whether the fact s p l ed by the Dug oshes and not conclusively
neg ated by

TSBVI invoked the proba te cour t’s jurisdiction by

establishing a

“condition or use” of tang ible persona l proper

ty attributable to TSBVI that proxi mately cause d Christopher’s death. See Miranda , 133 S.W .3d at 226-28.

“Use ” of the food? The leg islature has n ev er define d the term “use” under section 101.021(2), and Texas courts have been vexed for deca des by the term’s vag ueness and arbitra ry opera tion. See,
e.g ., University of Tex. Med. B r a n ch a t Ga lveston v. Y ork , 871 S.W .2d 175, 178 (Tex. 1994) (summarizing the supreme court’s “long and arduous history ” of strug g ling to construe section 101.021(2) and of reque sting the leg islature to clar ify the provision); see a l s o Mi l l er , 51 S.W .3d at 589-93 (He cht, J ., concur ring ) (conc luding that “it is simply impossibl e for the courts
to meaning fully construe and consistently apply the use-of -prope rty standard in the Tort Claims Act” and attributing the problem principally to the absenc e of any discerna ble g uiding leg islative policy
reg arding when or why

sovere ign immunity

should be waived i n a particular case)

. Despite these challeng es, the supreme court over the deca des has enuncia ted p ri n ci p l es that g ive us some
g uidance here

. L acking a leg islative definition of “use,” the supreme court has applied the ordinary meaning of the term—“to put or bring into action or service ; to employ for or apply to a g iven

21purpose.” San Antonio State Hosp. v. Cowan , 128 S.W .3d 244, 246 & n.10 (Tex. 2004). The court 1 3 has further rea soned from the context of the leg islature’s use of “use” in section 101.021(2) that the
g overnme ntal unit whose conduct is challeng ed must itself be the “user ” of the proper ty to waive immunit y . Id. at 246.

As a g ener al rule, a g overnme ntal unit’s act of furnishing tang ible persona l proper ty
to a person for him to use is not considere d a “use” of the p ro p er t y b y t h e unit that can waive immunit y under section 101.021(2). Two stark illust rations of this rule’s rec en t application by the Texas Supreme Court are provided in Dallas County v. Posey , 290 S.W .3d 869, 870 (Tex. 2009) (per curia m), and Cowan , 128 S.W .3d at 245-47. Both Posey an d C o w an involved suits ag ainst
g overnme ntal units arising from suicides by patients or inmates in unit-owned fac iliti es. I n both

case s, the individual use d persona l pr operty furnished or provided by the g overnme ntal unit to kill h i m s el f. Posey , 290 S.W .3d at 870 (inmate hung himself with liga ture he devised from fr ay ed

rec eiver cord of telephone in his cell); Cowan , 128 S.W .3d at 245-47 (mental hospital patient hung himself with suspender s and walker that hospital had returned to him). I n eac h case , the supreme
court held that the g overnme ntal unit did not, by furnishing or providing the proper ty to the dece dent, “use” the proper

t y s o as t o come within section 101.021(2)’ s waiver of immunit y . See Posey , 290 S.W .3d at 870 (no “use” of telephone beca use “the county did no more than place Posey in a cell with a corde d telephone, which he used to commit suicide”) ; Cowan , 128 S.W .3d at 245-47 (“A

Acc or d City of Rock

wall v. Hughes , 246 S.W .3d 621, 625-26 (Tex. 2008) (whe n 1 3 construing statutes, we rely on the plain meaning o f the text , unless a differ ent meaning is supplied by leg islative definition or is appar ent from context, or unless such a construction leads to absurd r esults). 22g overnme ntal unit does not ‘use’ persona l proper ty mere ly by allo wi n g s o m eo n e else to use it and nothing more. . . . By providing Cowan his walker and suspende rs, the Hospital did not ‘use’ them within the meaning of section 101.021(2).” ). This was so, signific antly , even though the plaintiffs in both Posey and Cowan had alleg ed and/or prese nted evidenc e that the deced en t had
prese nted a suicide risk that the gover nmental uni t was neg li gen t i n i gn o ring when furnishing the dece dent the prope rty

. Posey , 290 S.W .3d at 870-72; Cowan , 128 S.W .3d at 245.

On the other hand, the supreme court has continued to r ecog nize what it now terms

a nar row e x ception to the rule that a g overnme ntal unit’s act of furnishing persona l proper ty to an individual to use is n o t a “u s e” of that proper ty by the g overnme nt—immuni ty is waived under section 101.021(2) for “claims in which a plaintiff allege s that a st ate actor has provided proper ty that lacks an integ ral safe ty component and that the lack of this integ ral safe ty component led to the plaintiff’s injuries.” Cowan , 128 S.W .3d at 247 (quoting Kerrville State Hosp. v. Clark , 923 S.W .2d 582, 5 85 (Tex. 1996)). This exception derive s from an ear lier line of case s in which the
supreme court had held that g overnme ntal units’ n egl i gent provision of defe ctive or defic ient protec tive equipment was a “condition or use” (i t did not specify whether it was one, the other,

or both) of persona l proper ty that waived immunit y under section 101.021(2). Robinson v. Central
Tex. MHMR Ctr ., 780 S.W .2d 169, 169, 171 (Tex. 1989) (MHMR cente r’s provision of swim attire lacking life prese rver to epileptic child prone to seizures constituted a “condition or use” that waived im munity ); Lowe , 540 S.W .3d at 298-300 (university ’s provision of protec tive g ear to football p la y e r that did not include specia l protec tion for his i n j u red knee constituted a “condition or use” that waived immunit y

); Ove rton Mem ’l Ho s

p. v. McG uire , 518 S.W .2d 528, 528-29 (Tex. 1975)

23(per curia m) (hospital’s provision of bed for patient that was not equipped with side ra i l s wa s a

“condition or use” of proper ty that waived immunit y

). Although the literal lang uag e and rea soning

o f these decisions wer e arg uably broade r, the supreme court has subsequently clar ified that “t h e
prec edential value of [ Robinson , Lowe , and Ove rton ] is

. . . limit ed to claims in which a plaintiff alleg es that a state actor has provided proper ty that lacks an i nteg ral safe ty component and that the lack of

this int eg ral c omponent led t o the pl aintiff’s injuries.” Clark , 923 S.W .2d at 585 (a lso terming the case s “per

h ap s t h e outer bounds of what we have define d as use of tang ible
persona l property .”).

Unde rl y ing the supreme court’s contempora ry view of these decisions is its

rea soning that whateve r “use” may mean under section 101.021(2), it c annot mean a failure to use

or “ non -use” of persona l proper ty

. See id. A rela ted conce rn is that “use” of persona l proper ty under section 101.021(2) cannot mean every form o f n egl ige nce committed by a gover nmental uni t that happens to involve persona l proper ty in some way , as this would expand what the leg islature plainly intended as a limit ed waiver of immunit y into eff ectively a g ener al waiver

. See id. at 585-86 (“The re
cannot be a waiver of sovere ign immunit y in e very case in which medica l tr eatment is pr ovided in

a public fac ility

. . . . I f such a complaint wer e enoug h to constitute the use of tan gi b l e p er s o n al
proper ty under the Act, the doctrine of sovere ign immunit y would be rende red a n u l l i t y .”) (citing
Lowe , 540 S.W .2d at 302 (Gre enhill, C.J., conc urring ) (“I t is difficult to imag ine a tort case which does not involve the use, or nonuse, of some item of rea l or persona l proper ty ; and to me, if there is

a waiver in all case s wher e some item o f p er s o n al p ro p erty is either used or not used, there is virtually an unre stricted wa iver of immunit y .”))

. Driven by these conce rns, the supreme c ourt has

24soug ht to distinguish betwee n a g ov er n m en t al unit’s aff irmative act of furnishing or providing
persona l proper

ty that completely lacks an “integ ral safe ty component,” which it continues to reg ard

as waiving immunit y under Robinson , Lowe , and Ove rton , from a g overnme ntal un i t ’s fa i l u re to provide persona l proper

ty , or provide better, safe r, alterna tive persona l proper ty , which it reg ards as

a non-use of proper

ty that does not waive immunit y . See Texas A& M Univ. v. Bishop , 156 S.W .3d 580, 583-84 (Tex. 2005) (alleg ation that university provided student actor s knife without adequate “stab pad” did not asser

t “use” of the knife by university or complete absenc e of integ ral safe ty component, but a “non-use ” by failing to provide a more eff ective safe ty fea ture); Clark , 923 S.W .2d
at 585 (mental hospital’s p re s cribing oral medication alleg ed to be less eff ective than alterna tive injectable trea tment complained of a non-use of proper ty , a failur e t o provide a more eff ective tr eatment)

.

TSBVI equate s this case with Posey and C o w a n , u rging that it did no more than provide food for Christopher’s use, but itself made no “use” of the food. I t further asser ts that there

are no alleg ations the food was “def ective” or lacking in a

ny “integ ral safe ty component” and that,
to the extent the siz e of the food piece s coul d b e co nsidered a “saf ety component,” the Dug oshes complain not of a complete absenc e of that component but o n ly of TSBVI ’s failure to provide a better alterna tive—Smi th a n d Co g b urn cut or broke the food into piece s, but alleg edly wer e neg lige nt in failing to provide smaller, safe r pieces

. T h us, TSBVI conclude s, the Dug oshes’ claims would be g overne d by Bishop and Clark , and would constitu t e cl ai m s fo r non-use rathe r than use of
persona l property

. Bishop , 156 S.W .3d 583-84; Clark , 923 S.W .2d at 585.

25I n response , the Dug osh es attempt to distinguish Posey and Cowan by sug g esting

that Cogbur

n and Smit h had g rea ter involvement with the food tha n did the g overnme ntal units in those case s. They urg e that “Cog burn and Smit h selec ted, p u rc h as ed , cooked, prepa red and cut the oversized hot dog s and brocc oli.” Th ey fu rt her asser t that beca

use “Christopher’ s arms wer e defor med,” TSBVI “had to fee d the brocc oli and hot dog s to Christopher” and as s i s t h i m in consuming it. As we h ave previously explained, TSBVI neg ated any alleg ation that TSBVI employ ees place d the food in Christopher’s mouth, but still befor e us are the Dug oshes’ alleg ations that TSBVI cooked, prepa red, cu t an d serve d the food and that Cogbur n assisted Christopher in
g etting t h e fo o d onto his adapte d spoon. These are alleg ations, the Dug oshes rea son, that “the oversized brocc oli and hot dog s wer e ‘put into service ’ and employ ed for a ‘g iven purpose’ by employ ees of TSBVI .” They additionally sug g est that this case is g overne d by Ove rton , the “integ ral safe ty component” case that involved a hospital patient being place d into a bed lacking safe ty rails. See O verton Me m’l Hosp. , 518 S.W .2d at 528-29.

Guided by the Texas Supreme Court’s rec ent jurisprudenc e delineating the meaning of “use” of tang ible persona l proper ty under section 101.021(2), we must conclude that the Dug os h e s

asser t claims of T S BVI ’s ordinary neg lige nce or non-use of persona l proper ty , not a “use” of
proper ty for which section 101.021(2) waives immunit y . Whil e TSBVI cooked, cut, and prepa red the food and even helped Christopher g et it onto his spoon, i t remains that it was Christopher, not TSBVI , that ultimately put the food to its intended use by eating it. See Bishop , 156 S.W .3d at 583- 84 (althoug h fac ulty advisers allowed use of rea l knife in student theatric al production, the advisors “did not themselves ‘put or b ri n g [ the knife] into action or service ’ or ‘employ [t he knife] for or

26apply [i t] to a g iven purpose,’ as we have said the term ‘use’ intends.”) (modification in or igina l).

Alterna tively , even if it could be said that Smit h and Cogbur n “use d ” t h e fo o d i n some sense by
prepa ring , cutting or brea

king it into piece s, and g iving it to Christopher, such “uses” in themselves would lack the requisite causa l nexus t o C h ri stopher’s choking and death. Every thing turns, under the Dug oshes’ theor y of liability

and wa iver, on the fa ct that Christopher ate the food. This is a use of the food by Christopher, not a use by T S BVI

. To this extent, this case is analog ous to Posey and Cowan

. We rec og nize that under the Dug oshes’ pleading s and the jurisdictional evidenc e, as viewed throug h the prism of our standard of revie w, Christopher was highly if not totally depende nt
upon Smit h and Cogbur

n for the food that he ate and had mental, visual, and auditory impairments that would have reduc ed his capa city to asce rtain the risk of eating the food he was g iven. Howeve r,
we must u l t i m ately conclude that Posey and Cowan are not distinguishable on that basis. I n both Posey and Cowan , the dece dent was vulnera ble to suicidal impulses, y et the supreme court held that the g overnme nt unit’s act of fur nishing him with the very proper ty he used to kill himself was not

a “use” of that proper

ty and that it was instead the dece dent himself who had “used” the proper ty
to fata l ends. Posey , 290 S.W .3d at 870-72; Cowan , 128 S

. W

. 3 d at 2 45. Christopher was in an i d en tical position to the dece dents in Posey and Cowan as far as the rele vant “use” of tangi b l e
persona l property

is conce rned.
To the extent the Dug oshes are attempting to complain of the absenc e of an “integ ral safe ty component” in the food Christopher was g iven (i.e., the absenc e o f p i ec es sufficie ntly small for Christopher to consume safe ly ), we agr ee with TSBVI that this complaint would be

27g overne d by Bishop and Clark and would not fa ll within t he Ove rton line of ca ses. Assuming the siz e of the food piece s is a “saf ety component” fo r p u rp o s es o f this rule, the Dug oshes complain (o n ce t h e jurisdi ctional evidence is considere d) not of t he complete absenc e of such a compone n t (i.e., that Smit h and Cogbur n failed to cut or brea

k the brocc oli, hot dog s, or fre nch fries into piece s
at all), but of TSBVI ’s failure to use a safe r or better alterna tive component (i.e., g iving Christopher smaller, safe r piece s and/or using kitchen utensils to cut the piece s smaller). See Bishop , 156 S.W .3d 583-84; Clark , 923 S.W .2d at 585.

The rea l substance of the Dug oshes’ complaint is that TSBVI neg lige ntly failed to ins t ru ct an d supervise Smit h and Cogbur n in prepa

ring Christopher’s food and/or that Smit h and Cogbur

n neg lige ntly failed to car

ry out those instructions, not that TSBVI “used” the food in the

sense require d to waive immunit y under section 101.021(2). See Bishop , 156 S.W .3d 583. The mere fac t that these alleg ed ac t s o f neg lige nce involved or conce rned the tang ible persona l proper ty of food is not enoug h to waive TSBVI ’s immunit y u n d er s ec t i on 101.021(2), and to hold otherwise “would be tantamount to abolishing [sovereig n] immunit y , contra ry to the limit ed waiver the
L eg islature cle arly

intended.” Id. (quoting Clark , 923 S.W .2d at 585).
I n urg ing that T S BV I “u s ed” the food in some respe ct rele vant to waiver under section 101.021(2), the Dug oshes also rely on a decision of the Texarkana Court of Appea ls,
Texas State Technical College v. Beav ers , 218 S.W .3d 258 (Tex. App.—Texarkana 2007, no pet.).
I n Beav ers , a student in a diesel eng ine testing and repa ir course was injured while using a hy draulic hoist as part of his course i n s truction. He sued the colleg e for neg lige nce and soug ht to establish waiver of the colleg e’s sovere ign immunit y by alleg ing his injuries had been proxi mat el y ca u s ed

28by the colleg e’s “use” of the hoist. Whil e holding that the student’s claims did not fa l l wi t h in

the complete absenc e of an “integ ral safe ty component” e x ception for persona l property

furnished
to an individual to use, id

. at 263-65, the Texarkana court nonetheless conclude d that the colleg e had “used” the hoist throug h the manner in which it had utiliz ed th e h o i s t as part of the student’s

course instru ct i o n . S

ee id. at 265-67. We do not believe these fac ts involving a colleg e’s use of an ins tructional aid in a class are analog ous to TS BV I ’s p ro v i s i on of food for Christ opher to eat. Consequently , we are no t p er suaded that Beav ers counsels a depar ture from our analy sis

an d conclusion that the Dug oshes have not asser ted claims within the use-of -prope rty waive r o f section 101.021(2)

.

We hold that t h e Du goshes have not asser ted claims that Christopher’s death was proxi mately cause d by TSBVI ’s neg lige nt “use” of tang ible persona l proper ty so as to come within section 101.021(2) ’s waive r of sove reig n immunit y .

“Condition” of the food?
Even if t h ey h ave not asser ted a claim of neg lige nt “use” of tang ible
persona l proper

ty , th e D u g oshes urg e, they have nonetheless complained of a “condition” of proper ty for which immunit y is waived under section 101.021(2)—the food p i ec es that Christopher was

serve d o r “fed” wer e too larg e for him to consume safe ly

. As with “use,” the leg islature did not define what a “condition” of proper ty means under section 101.021(B ), so Texas courts have looked
to the ordinary meaning of the term—“e ither an intentional or an inadver tent s t ate of being .” Sparkman v. Maxwell , 519 S.W .2d 852, 858 (Tex

. 1 9 7 5 ). Wit h respe ct to neg lige nce clams

conce rning rea l proper

ty , it is established th at s ec t ion 101.021(2) incorporates premises-liability

29conce pts and limit ations. See City of Austin v. Leggett , 257 S.W .3d 456, 462-63 (Tex. App.—Austin 2008, p et. denied)

. Reg arding “conditions” of persona l proper ty for which section 101.021(2) waives immunit y , the Texas Supreme Court has stated that “condition” implies that the proper ty is “def ective or inadequa te,” Salcedo v. El Paso Hosp. Dist. , 659 S.W .2d 30, 32 (Tex. 1983), and that such defe ct or i nadequa cy “pose[s] a hazard in the intended and ordinary use of the proper ty .” Posey , 290 S.W .3d at 872. Wit h this, the supreme court has emphasized the require ment of a causa l

nexus betwee n the “condition” and the injury made the basis for suit. See id .; Bossley , 968 S.W .2d
at 343. This nexus require s “more than the mere involvement of proper ty ; rathe r, the condition must
actua lly have c aused the injury .” Posey , 290 S.W .3d at 872. As it did with “use” of tang ible persona l proper ty section 101.021(2), Posey provides

a rec ent illust ration of the supreme court’s view reg arding “conditions” of tang ible persona l proper ty that can waive immunit y under section 101.021(2). The dece dent in Posey was place d in a county

jai l h o l d i n g cell containing a land-line telephone whose handheld rec eiver was connec ted to the phone by a cord. The cord had exposed wires. The dece dent killed himself by fashioning a liga ture by running the telephone rec eiver throug h the ex p o s ed wires. See id. at 870-72. I n addition to al leg ing that the county had “used” the phone by g iving it to the decedent, the dece as ed ’s p ar en t s

asser ted that the exposed wires wer e a “condition” of the phone that had proxi mately cause d the d ec ea s ed ’s d ea t h. See id. I n reje cting that theory as a matter of law, the supreme court acknow ledg ed that the exposed wires might have been a “condition”—“ a hazard in the intended and ordinary use of the proper ty ”—inasmuch as they “posed an elec trical hazard to a n ordinary user of the telephone.” Id. at 872. Nonethele ss, the court rea soned, the require d causa l nexus betwee n that

30condition and the death was lacking —“the exposed wires here did not cause the injury ; they instead constituted no more than a condition of the proper ty that was then used by Posey to form a liga ture for suicide .” Id.

As TSBVI points out, the Dug oshes do not alleg e that there was any thing hazardous

or defe ctive about the brocc oli, hot dog , and fre nch fries with respe ct to their ordinary and intended

use as food g ener ally

. I nstead, their complaint is that TSBVI personne l failed to furnish Christopher smaller, safe r piece s of this food (or to cut or brea k the food into smaller piece s). The Dug oshes rely

on the ordinary meaning of “condition” (a particula r mode or state of being ). By alleg ing that “[t] he portions of hot dog s and brocc oli fed to Christopher by Cogbur n and Smit h wer e too larg e” and that this cause d Christopher to choke, the Dug oshes rea son, they “have alleg ed a ‘condition’ of tang ible
persona l property

that was a

proxi mate ca

use of Christopher’ s death.”
We have conclude d above that the Dug o shes’ claims conce rn non-use of tang ible
persona l proper

ty or other neg lige nt acts of TSBVI that are bey ond the scope of section 101.021(2)’ s waiver

. See Bishop , 156 S.W .3d 583-84; Clark , 923 S.W .2d at 585. As we und er s t an d the
Texas Supreme Court’s jurisprudenc e, we do not think that the Dug oshes can establish a waiver und er s ec tion 101.021(2) mere ly by char acte rizing their claims of non-use of persona l proper ty (fa ilure to use a safe r alterna tive of smaller food piece s or to use kitchen utensils to cut the food into smaller piece s) or other g ener al neg lige nce as a complaint about the “condition” of the food portion siz es TSBVI did provide. To so hold would imply that ever y non-use case involving alleg ations of
a gover nmental uni t’s neg ligen ce in failing to provide a safe r alternative could establish waiver if only the plaintiff would couch his complaint in terms of the “condition” of the less-saf e proper ty the

31unit did provide. We do not believe the principles g overning waiver of sovere ign immunit y under

section 101.021(2) work this way

.

I n case s wher e a plaintiff s ee k s to establish waiver of immunit y under section 101.021(2) based on a g overnme ntal unit’s furnishing of tang ible persona l prop er t y for another person to use, the Texas Supreme Court has appea red to require the complete absenc e of an “integ ral safe ty component” to waive immunit y under either the “use” and “condition” prongs of
t h e st atute. The cases giving rise to the “integr al s afe ty component” exception do not d i s t i n gu i s h betwee n “condition or use.” See Robinson , 780 S.W .2d at 169-71; Lowe , 540 S.W .3d at 298-300; Ove rton Mem ’l Hosp ., 518 S.W .2d at 528-29. L ikewise, in its more rec ent case s, the supreme court has char acte rized the “integ ral safe ty component” requi re m en t as part of the “condition” prong ,

or both the “condition” and “use” p ro n g s. See Cowan , 128 S.W .3d at 245 (“Responde nts do not complain of the condition of Cowan’s walker and suspender s. They do not asser t, for example, that the walker and suspender s wer e defe ctive or that they lacke d some safe ty fea ture.” ), 247 (“A s alre ady noted, responde nts make no such claim [of an absent ‘i nteg ral safe ty component’] in this case .”);
Texas Dep’ t of Crim. Justice v. Miller , 51 S.W .3d 583, 58 7 (T ex. 2001) (“The Tort Claims act and our case s have distinguished claims involving the failure to use, or the non-use of proper ty , which do not wa i v e sovere ign immunit y , from claims involving a ‘ condition or use’ of tang ible
persona l proper

ty that cause s injury , which do eff ect a waiver .”) (empha sis a dded). Severa l of our sister cou rt s , at l ea st in rec ent y ear s, have ag ree d with our assessment. See Beav ers , 218 S.W .3d
at 264 n.1 (“Whether the require ment is analy zed under the ‘condition’ or ‘use’ s ec t i o n of [section 101.021(2)], the T ex as Supreme Court has made it clea r that, unless the g overnme ntal

32ag ency h as ‘used’ tang ible persona l proper ty in some other manner so as to waive immunit y ,

mere ly s u p p l y i ng the proper ty for another ’s use, without more, does not waive immunit y unless the supplied proper

ty is c ompletely lacking an integ ral safe ty component.”) ; see also U niversity of
N. Tex. v. Harve

y , 124 S.W .3d 216, 222-24 (Te x . App.—For t Worth 2003, pet. denied) (applying the “integr al s afe ty component” require ment in deter mining whether im munity was waived un der the “c ondition” prong of sec tion 101.021(2)).

Guided by these decisions, we conclude th a t r e g a r d le s s w h e ther the Dug oshes purport
to rely on the “use” or “condition” prong of section 101.021, sovere ign immunit y is not waived for their complaint beca

use it conce rns tang ible persona l proper ty furnished to Christopher for his use,
not proper

ty that TSBVI used, and d o es n o t asser t the complete absenc e of an “integ ral safe ty component” in that proper ty , but only non-use of proper ty or other acts of neg lige nce by TSBVI for which sec tion 101.021(2) does not wa ive immunity

.

I n contending otherwise, the Dug oshes rely on a decision from the San Antonio Court

o f Ap p ea l s t h at has some fac tual simil arities to the prese nt case . See W ebb County v. Sandoval , 88 S.W .3d 290, 29 2-95 (Tex. App.—San Antonio 2002, no pet.) ( Sandoval I ). Sandoval I arose afte r a four- y ear -old child choked to death o n ch i ck en n u g g ets that had been serve d to her by a county -run Head St art progr am. Her pare nts sued t he county seeking damag es. The San A ntonio C o u rt of Appea ls held that the pare nts sufficie ntly alleg ed the requisite “condition” un d er section 101.021(2) by pleading that the chicke n nug g ets wer e “over cooked, too hard and too larg e,” and that this proxi mately

cause d the child to choke to de ath. Id. at 292-95.

33As TSBVI points out, no Texas court to date has followed S a n d o va l for the proposition that alleg ing food i s co o k ed t o be “too hard” or “too larg e” and furnished to another
person to use or consume, causing them to choke, alone states a claim for a “condition” of tang ible
persona l proper

ty th a t w a iv e s sovere ign immunit y under section 101.021(2). And, assuming without deciding that Sandoval I corr ectly ref lects Texas law, there are fac tual distinctions betwee n it and the
prese nt case . Unlike here , there is no indication in Sandoval I that there wer e alleg ations or evidenc e Hea d Start staff ha d cut the chic ken nug g ets into smaller piece s. See id. at 292-95; see also W ebb County v. Sandoval , 126 S.W .3d 264, 265-67 (Tex

. App.—San Antoni o 2003, no pet.) ( Sandoval
II ) (in opinion following further proce eding s afte r Sandoval I , cit ing jurisdictional evidenc e that
nug g ets had been prepa

red and serve d “in a manner consistent with the packag ing instructions”). Thus, as far as the siz e of the nug g ets is conce rned, Sandoval I would arg uably fall within the complete- absenc e-of

-an- “integ ral safety component” line of case s. We also note t hat t he asserted “condition” of the chicke n nug g ets in Sandoval I was one that would tend to cre ate a choking hazard for persons g ener ally and, unlike here , was not solely a function of the particula r dece dent’s inability
to consume them safe ly

. Although the dece dent was a four- y ear -old child—an ag e at which a person is not alway s prone to chew her food thoroug hly and swallow it safe ly —the San Antonio court did
not appea r to view the child’s ag e or rela ted limit ations as rele vant t o i t s analy sis of the asser ted “condition” and its causa l nexus to the child’s death. Her e, as we have noted, the Dug oshes do not 1 4

T h is is e s p e c ia lly appar ent in the court’s opinion following further proce eding s. Following 1 4 Sandoval I

, the county , resuming its eff orts in the trial court, prese nted jurisdictional evidenc e in an attempt to neg ate the causa l nexus betwee n the “c ondition” of the chic ken nug g ets and the c hild’s death. W ebb County v. Sandoval , 126 S.W .3d 264, 266-67 (Tex. App.—San Antonio 2003, no pet.) ( Sandoval II

). This included aff

idavit testimony from Hea d Start personne l to the eff ect that nothing 34alleg e that the food C h ri s t o p h er was s erve d was hazardous to persons ge nera lly , only that TSBVI

was neg lige nt in failing to g ive him smaller, safe r piece s of the food. I n sum, we are not persua ded that Sandoval

chang es our a

naly sis.
We hold that the Dugos h es have not asser ted claims that Christopher’s death was proxi mately cau s ed by a “condition” of t ang ible persona l proper ty TSBVI furnished him, so as t o waive immunity

under se ction 101.021(2).
Drug overdose Pleading allegations
I n addit ion to their alleg ations reg arding the siz e of food piece s Christopher was furnished on the evening he died, the Dug oshes pled that Christopher’s death was also cause d by an overdose (i.e., a

misuse) of medication administ ere d by TSBVI staff:

about the chicke n nug g ets had been unusual or would have reasonably tended to cause a person to choke. The county also prese nted aff idavit testimony from a para medic who had trea ted the child at the scene , who rec ounted that he observe d the food that was remove d from the child’s trac hea and saw a “piec e of chicke n ap p ro x i mately two inches in leng th that seeme d to be partially chew ed.” Id. at 267. Ba sed on his observa tions, the p aramedic opined that “it was obvious that the patient had not chew ed the piece of chicke n sufficie ntly in order to swallow it proper ly .” Id. Ba sed on this uncontrove rted evidenc e, the San Antonio court conclude d that while “[t] he chicke n nug g et blocked [t he child’s] trac hea, .

. . it was the failure to sufficie ntly chew the chicken nugg et t hat caused her injuries.” Id. Consequently , the court rea soned, “the evidenc e, at best, sug g ests Webb County did no more than furnish [t he child] with the condition or objec t (the chic ken nug g et) which made her injuries possible” and, there fore , neg ated the casua l nexus require d to waive sovere i g n immunit y under se ction 101.021(2). Id. Ag ain, the San Antonio court rea ched this conclusion despite the fac t that the dece dent was a four- y ear -old child. And arg uably the same causat i o n analy sis would apply here —espec ially wher e there was undisputed evidenc e that Christopher had actua lly s wallowed his food fiftee n to twenty minutes before he beg an choking

. 35[A] medication (Wellbutrin) wa s provided to Christopher by TSBVI on the date of Christopher’s death. Cogbur n, Smit h and/or other employ ees of TSBVI neg lige ntly withheld Christopher’s presc ribed medication for the purpose of g iving Christopher more than the presc ribed dose of such medication at times when Christopher’s behavior was difficult to control or prese nted problems for TSBVI ’s employ ees. Christopher had a tox ic level of Wellbu trin in his blood stream on the date of his death. The neg lige nce and/or g ross neg lige nce of Cogbur n, Smit h and/or nonmedical employ ees of TSBVI in withholding presc ribed medications and then providing Christ o p h er a tox ic dosag e of Wellbutrin on the date of his death was a proxi mate ca

use of Christopher’ s death.

Jurisdictional evidenc e TSBVI prese nted evidenc e in an attempt to neg ate the Dugo s hes’ alleg ation that Christopher was administered a “toxi c do se” of Wellbutrin. This included the copy of the medical ex am i n er ’s autopsy repor t that TSBVI introduced at the hear ing, which contained a handwr itten notation indicating that this medication was “not at tox ic l evel.” Additionally , in the aff idavit from Nurse C hamber s, she t estified that C hristopher wa s “neve r admini stered more t han his pr escr ibed doses of Wellbutrin, nor was he ever administered tox ic levels of Wellbutrin.” The Dug oshes did not introduce any evidenc e to controve rt T S BV I ’s evidenc e that Christopher had

n o t b ee n administered a tox ic dose of Wellbutrin. To the contra ry , as TSBVI emphasiz es , Richard Dug osh acknow ledg ed during cr o s s-examination that he was unawa re that his attorney had added this alleg ation to the Dug o s h es ’ cl aim s and that he could not identify any evidenc e to support that alleg ation.

W e conclude that TSBVI met its burden of neg ating , as a matter of law, t h e Dug oshes’ alleg ation that its personne l proxi mately cause d Christopher’s death by administering

36a fata l overdose of Wellbutrin. See Miranda , 133 S.W .3d at 227-28

. C o n s eq u ently , sovere ign

immunit y is not waived as to this alleg ation.
The Dugosh es’ c ross-point

I n their cross-point, the Dug oshes ar g ue that the probate court abused its discr etion in excluding excerpts from two depositions they soug ht to introduce during the evidentiar y hear ing. The first set of excerpts was from the deposition of Mary L ou Rink, TSBVI ’s dietician at the time of Christopher’s death. The second was from the deposition of Robert Ba y ardo, former Travis County Medica l Ex aminer, who perf ormed the autopsy on Christopher and prepa red the repor

t that TSBVI introduced into evide nce.

The hear ing took place over the course of two day s. The repor ter’s rec ord from the hear ing r efle cts that immediately afte r Cogbur n’s testimony conclude d, which was on the second day of the hear ing, the parties took up the matter o f deposition excerpts with the probate court. The

rec ord ref lects that the Dug o s hes’ counsel furnished deposition excerpts to TSBVI ’s counsel and represente d to the court that “I g ave them all to her last night” (i.e., following the first day of the hear ing)

. Following a brea k, TSBVI ’s counsel confirme d with the court that the Dug oshes’ deadline for filing their response to TSBVI ’s plea to the jurisdiction had been nine day s ear lier. Counsel then objected to the Dug oshes’ excepts as “hea rsay ,” “not proper ly authentica ted,” “irre levant,” and “not timely ,” adding that “by rec eiving these at the ear liest last night they serve as a surprise and we have

no opportunity to counter them.” Counsel further objected to Ba y ardo’ s deposition testimony on the
g round that Ba

y ardo had not been proper ly desig nated as an expert. TSBVI ’s counsel also tender ed

a list of pag e and line objections to the excerpts. I n response , the Dug oshes’ counsel offe red to prove
37up the authenticity of the excerpts but disputed that he had any duty to d es i gn at e deposition pag e

and line numbers prior to the evidentiar y hear ing. The probate court sustained TSBVI ’s objection
t o t he excerpts’ admission. Subsequently , in response to an inquiry from the Dug oshes’ counse l , the court indicated that, in fac t, counsel had been require d to desig nate the deposition excerpts prior to the hear ing. On ap p ea l, the Dug oshes complain that “the Court allowed TSBVI to introduce deposition ex cer

pts” and “ stated that it would permit Appellee s to introduce de position ex cer pts.” They add that “[t] he deposition excerpts wer e rele vant and proper ly authentica ted,” “[n] o scheduling order require d the desig nation of deposition excerpts befor e the hear ing,” and that “Dr

. Ba y ardo was desig nated as an expert.” This is the entirety of the Dug oshes’ arg uments in support of their crosspoint. TSBVI responds that the Dug oshes waived their cross-point by failing to adequately brief it. See Tex. R. App. P. 38.1(h). On this rec ord, we need only hold that the Dug oshes have not met their burden of demonstrati n g t h at t h e district court abused its discretion in excluding their deposition excerpts. We overr

ule the Dug oshes’s cr oss-point.

CONCLUSION As the Texas Supreme Court has observe d, whether immunit y is wai v ed by section 101.021(2) turns on “proble matic” distinctions betwee n “use” and “no n -use” of tang ible
persona l proper

ty , Miller , 51 S.W .3d at 588-89, that lac k g rounding in any coher ent policies

as to why immuni t y s h o u l d b e wa ived in a particula r case as opposed to another

. See id. at 591 (He cht, J ., concur

ring ). Yet it rema ins that “the L eg islature drew that line in the Tort Claims Act,” Miller , 51 S.W .3d at 589, and it is our dut y to apply it, like we are bound to apply t h e d o ct ri ne of

38sovere ign immunit y , unless and until the Texas Supreme Court or t h e L egislature instructs us

otherwise. See Petco Animal Supplies, Inc. v. Schuster , 144 S.W .3d 554, 564 (Tex. A pp.—Austin 2004, no pet.).
Ba sed on the fore g oing analy sis, we sustain TSBVI ’s third issue and hold that the Dug oshes have not asser ted a claim for which sovere ign immuni t y i s wa i v ed under section 101.021(2). Consequently , they have not invoked the probate court’s s u b j ec t -matter jurisdiction, so we must reve rse the probate court’s order deny ing TSBVI ’s plea to the jurisdiction.
Fur thermore , beca

use the Dug oshes’ fac tual alleg ations have either been neg ated as a matter of law

or aff irmatively demonstrate that their claims are based on TSBVI ’s n o n-use of tang ible persona l
proper ty or other neg lige nce for which sovere ign immunit y has not be en waived, we must rende r 1 5 judgme nt dismiss ing the Dug oshes’ claims with prejudice

. See Texas A& M Univ. Sys. v. Koseoglu , 233 S.W .3d 835, 840 (Tex. 2007); Miranda , 133 S.W .3d at 227. Be cause these holdi n gs are dispositi ve of this appe al, we do not r eac h TSBVI ’s other issues. See Tex. R. App. P . 47.1.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Bob Pembe rton, J ustice
Be fore Chief J ustice L aw, Justi ces Pury ear and Pember

ton; Chief J ustice L aw not par ticipating
Reverse d and Rende red Filed: Mar ch 26, 2010

I .e., under the Dug oshes’ pleading s and uncontrove rted jurisdictional evidenc e, Cogbur n 1 5 and S mith cut or broke the brocc oli, hot dog, a nd fre nch fr ies befor e serving them to Christopher, and thus did not furnish food entire ly lacking this “integ ral saf ety component.” 39