On June 29, 2012, the Texas Supreme Court issued an opinion in City of North Richland Hills v. Laura Friend, et al., No. 11-0367, wherein it held that the failure of a city-owned water park to provide a defibrillator did not waive the city’s immunity, because it did not constitute the “use of tangible personal property.” See Texas Tort Claims Act section 101.021(2).
The claim arose as the result of Sara Friend collapsing on July 14, 2004 at a city-owned water park in North Richland Hills, Texas. The city employees responded with oxygen and air-way equipment, but did not retrieve the portable Automatic External Defibrillator (AED) device that was present at the water park. Friend did not receive defibrillation until 21 minutes later, when the fire department arrived. Friend died shortly thereafter.
Friend’s estate sued several defendants, including the city and some of its employees, claiming gross negligence in failing to retrieve and timely use the AED that proximately caused Friend’s death.
The city argued that the Friends’ negligence claim does not fit within the narrow waiver of immunity provided by the Tort Claims Act. Sections 101.021 and 101.022 allow suits against governmental units only in cases involving the operation or use of motor vehicles, § 101.021(1), premises liability, § 101.022, or the “condition or use of tangible personal . . . property,” § 101.021(2).
The trial court denied the city’s plea to the jurisdiction, and the court of appeals affirmed.
The Texas Supreme Court, in limited prior decisions, has held that when a plaintiff alleges that property used by the state lacks an integral safety component, immunity is waived under section 101.021(2). See Lowe v. Texas Tech, 540 S.W.2d 297, 300 (Tex. 1976); see also Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169, 171 (Tex. 1989).
However, the Texas Supreme Court has recently described these cases as representing the outer bounds of what has been defined as use of tangible personal property, and limited these particular rulings to cases 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– which was not the case in this matter. The Court reaffirmed its prior holding that the legislature intended governmental units to be liable for negligently using harmful property, but not for failing to use it.
The Texas Supreme Court held the claim does not within the waiver of immunity, reversed the court of appeals, and dismissed the Friends’ claims.
