Appellant Dennis Christilles sued appellee Southwest Texas State University in the district court of Hays County for personal injuries pursuant to the Texas Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19 (Supp.1982). Upon motion, the district court withdrew the case from the jury and rendered judgment that Christilles take nothing. This Court will reverse that judgment and remand the cause for trial.
When injured, Christilles was a drama student at the University engaged in a dress rehearsal of Cat On A Hot Tin Roof. Christilles' participation in the production was a requirement for his course of study. Christilles portrayed Brick Pollitt, who walked on crutches because his ankle was broken. In one scene, Christilles was to have an argument with the character Big Daddy, who pulls the crutch away from Christilles, causing him to fall.
The production was directed by a member of the University's faculty, Dr. John E. Clifford, who had total responsibility for direction and who made all production decisions. Clifford purposely decided to use an actual drinking glass in the scene in place of a glass substitute often used in theater productions. Clifford's thinking was that
After appellant rested his case, counsel for the University made the following motion:
The district court rendered the take nothing judgment, which the court stated was based upon the second ground recited in the motion and upon the rationale of Velasquez v. Jamar, 584 S.W.2d 729 (Tex.Civ.App. 1979, no writ) and Chief Justice Greenhill's concurring opinion in Lowe v. Texas Tech University, 540 S.W.2d 297, 301-3 (Tex. 1976).
At common law the state, of course, was not liable for torts committed by its employees and agents. E.g., State v. Hale, 146 S.W.2d 731, 735 (Tex.1941). In 1970, the legislature enacted the Texas Tort Claims Act. Section 3 of the statute provides for waiver of governmental immunity in the use of publicly owned automobiles and premise defects. That section also provides that the state is liable, subject to certain exceptions, for money damages for death or personal injury proximately caused from "some condition or some use of tangible property, real or personal." As observed by Chief Justice Greenhill, the language of § 3 has been difficult to construe and apply, particularly in those cases, as in the present appeal, wherein a plaintiff has alleged liability arising from "some condition or some use" of personal or real property. Lowe, 540 S.W.2d at 301.
As Chief Justice Greenhill stated in Lowe, section 3 does not waive the state's immunity defense each time a state agent or employee has committed a tort and some personal property is involved, else section 3 would be virtually an absolute waiver of the state's immunity because some direct or indirect use of property can be identified in almost every personal injury case. The legislative history of the Act plainly did not contemplate such a result. Lowe, 540 S.W.2d at 301-2.
Velasquez v. Jamar, supra, recognized Lowe as standing for the proposition that whenever a plaintiff alleges property supplied by the state is defective or inappropriate for the purpose for which it is used, section 3 applies. 584 S.W.2d at 732; see also Brantley v. City of Dallas, 545 S.W.2d 284, 286 (Tex.Civ.App.1976, writ ref'd n.r. e.). The construction of § 3 in these cases comports with the literal language of the Act and its command that its provisions be liberally construed. Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 13 (1970).
The University urged and the district court concluded that Christilles was required to plead and prove the glass, itself, was in some manner defective.
Christilles pleaded and produced some proof, pursuant to Velasquez and Lowe, that his injury resulted from the use of, or condition of, property either defective or inappropriate (use of breakable drinking glass rather than a safer one). Christilles claims, correctly, that a jury could conclude that the drinking glass selected by the director was inappropriate under the circumstances. We are of the view this is a character of "use" of property contemplated by section 3.
The University maintains by cross-point, in effect, that the district court erred in not sustaining its motion upon authority of section 14(7) of the Texas Tort Claims Act. Section 14(7) exempts from liability:
The Supreme Court, in Terrell v. State, 588 S.W.2d 784 (Tex.1979), stated the purpose of the section 14(7) exemption was:
Id. at 787. Section 14(7) therefore retains the state's sovereign immunity when governmental officials or employees determine what policy will be, but not when those officials or employees carry out the specifics of a particular policy. Id. at 788; see generally Comment, The "Policy Decision" Exemption of the Texas Tort Claims Act: State v. Terrell, 32 Baylor L.Rev. 403 (1980).
The Federal Tort Claims Act contains a similar exclusion for discretionary functions performed by federal employees. 28 U.S. C.A. § 2680(a) (1965). The federal courts have attempted to determine what discretionary activity comes within the exception and have formulated a "planning — operational" distinction in which negligent discretionary acts of federal employees at the policy making or "planning" level afford no basis for liability, while the negligent exercise of discretion at the working or "operational" level is subject to liability. See W. Prosser, Handbook of the Law of Torts § 131, at 973 (4th ed. 1971). The difficulty with this analysis is that specific "operational" details are frequently decided at the "planning" level, and thus are exempt from liability. Perhaps the correct analysis of which decisions or discretionary functions are exempt from liability is made by Professor Kenneth C. Davis:
3 K. Davis, Administrative Law Treatise § 25.08, at 403-4 (Supp.1982).
In analyzing the discretionary function exception, it then should be determined whether a particular matter of discretion is one committed to the executive or legislative branches of government which the court should not second-guess. If the decision is not of this type, the government remains liable for its employees' negligent exercise of discretion. Under the Texas Tort Claims Act, of course, the state's liability is limited even further because a plaintiff must also show the state employee's
In the present appeal, Dr. Clifford, the director of the play, decided to use an actual drinking glass in the scene. Christilles alleged this decision was negligent and introduced evidence that the professor could have chosen other safer substitutes. The professor's decision to use the glass was obviously not a determination of governmental policy of the type the legislature, the governor, or other state executive officials make. It involved the exercise, in Professor Davis' words, of "professional" or "occupational" discretion. As Terrell v. State, supra, makes clear, this character of discretion does not come within the exception to the state's liability created in section 14(7). The district court's judgment could not have been properly based on the ground Dr. Clifford's selection of glass was a discretionary act under section 14(7).
The judgment is reversed and the cause is remanded to district court for trial.
That this construction of § 14(7) is proper is bolstered by a review of the "discretionary function" exemption of the Federal Tort Claims Act in 28 U.S.C.A. § 2680(a) (1965).
Section 2680(a) differs from § 14(7) of the Texas act because it exempts both "the exercise and performance" and "the failure to exercise or perform" a discretionary function or duty of a federal agency. In different words, under the federal act both the negligent performance — misfeasance, and the negligent non-performance — nonfeasance, of discretionary duties are exempt from liability. Under the Texas act, however, a proper interpretation of § 14(7) indicates only negligent nonperformance of a discretionary act is immune.
Nevertheless, courts and litigants have viewed § 14(7) as applying to affirmative acts as well as to failures to act by state employees and agents. The section has been difficult to apply because its language does not specify which discretionary acts are exempted from liability. Conceivably, almost all acts of government employees and agents involve a certain degree of discretion, so unless § 14(7) is to be construed as a blanket exemption from liability of all choices made by state employees (a result plainly not contemplated by the Act), the exemption must apply to a narrower set of discretionary acts.