This is an appeal from a summary judgment. During the 1983-84 school year, appellant Andrea Marie Delaney attended the University of Houston on an athletic scholarship to play volleyball. The scholarship provided for her educational, housing and meal expenses, and Ms. Delaney was housed in Settegast Dormitory, an on-campus facility. Prior to the Easter recess, Ms. Delaney contacted the dormitory management several times to report that an exterior door was being propped open to allow access because a key was broken off in the lock. However, the door was not repaired. Ms. Delaney remained at the University during Easter recess due to compulsory volleyball practice. On the night of March 12, 1984, a man entered the propped-open door, found his way to Ms. Delaney's room and raped her at gunpoint.
Ms. Delaney sued the University for breach of contract and tort damages. The University filed a motion for summary judgment stating that her claims were barred by the Texas Tort Claims Act. The trial court granted the University's motion, stating that all of the claims, including those for breach of contract and for tort damages, were barred as a matter of law by the Act, specifically Tex.Civ.Prac. & Rem.Code Ann. § 101.057(2) (Vernon 1986). Ms. Delaney appealed and we affirm the summary judgment.
The summary judgment rule provides a method of summarily terminating a case when it clearly appears that only a question of law is involved and that there is no genuine issue of fact. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962). Summary judgments are reviewed according to the following rules:
Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).
Ms. Delaney challenges the summary judgment with four points of error. The first three points have to do with the trial court's disposition of her contract and tort claims and are argued together. Ms. Delaney specifically argues that the trial court erred in granting the University summary judgment on her breach of contract claim; on her claim for torts caused by the University during the course and scope of its proprietary activities in running a dormitory; and on her additional claims under the Texas Tort Claims Act.
The state is not liable for torts of its officers or agents in the absence of a constitutional or statutory provision therefor. Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976). State universities have been held to be agencies of the state and to enjoy sovereign immunity. Bagg v. University of Texas Medical Branch at Galveston, 726 S.W.2d 582, 584 (Tex.App.—Houston [14th Dist.] 1987, writ ref'd n.r.e.); Lowe, 540 S.W.2d at 298. The Texas Tort
Preliminarily, Ms. Delaney argues that the University offered no summary evidence to support any of its contentions but instead relied on its pleadings. She asserts that pleadings do not constitute summary judgment proof. In Hidalgo v. Surety Sav. and Loan Ass'n, the supreme court stated that pleadings simply outline the issues but are not evidence, even for summary judgment purposes. 462 S.W.2d 540, 543 (Tex.1971). However, the court also noted the following:
Id. at 543 n. 1. The University maintains that it specially excepted to Ms. Delaney's pleadings because she failed to state a cause of action under the Tort Claims Act. When she insisted on characterizing her claim as one arising from contract and not from sexual assault, the University relied on deficiencies in her pleadings and, in line with Hidalgo, moved for summary judgment. We find no problem with the summary judgment proof in this context.
In point of error one, Ms. Delaney argues that the trial court erred in granting the summary judgment on her breach of contract claims. Prior to matriculation, Ms. Delaney signed a housing and food service contract with the University. She contends the University has judicially admitted that the contract is legally enforceable because language in the document states that it is "legal and binding." She further argues that the University is liable for breach of contract regardless of its status as a state agency because the Texas Education Code provides that the University can sue and be sued on the basis of contractual obligations. She argues that the doctrine of sovereign immunity is therefore inapplicable.
The Board of Regents indeed has the power to sue and be sued in the name of the University. Tex.Educ.Code Ann. § 111.33 (Vernon Supp.1990). However, by granting permission to be sued, the legislature did not thereby admit liability or create liability in favor of the plaintiff, but merely granted permission to test the matter through the courts. State v. Brannan, 111 S.W.2d 347, 349 (Tex.Civ.App.—Waco 1937, writ ref'd); see also Jones v. Texas Gulf Sulphur Co., 397 S.W.2d 304, 307 (Tex.Civ.App.—Houston 1965, writ ref'd n.r.e.) (statute merely provides that a navigation district and its commissioners may sue and be sued in the courts of this state; it does not in any way militate against their governmental immunity).
Furthermore, regardless of the breach of contract characterization, the claims in this case arise out of an intentional tort. In Townsend v. Memorial Medical Center, a patient was raped in an elevator by an orderly while being transported from one floor to another. 529 S.W.2d 264, 265 (Tex. Civ.App.—Corpus Christi 1975, writ ref'd n.r.e.). The patient stated a cause of action under the Tort Claims Act by alleging an injury that involved the use of a motor-driven vehicle and also the condition and use of tangible property.
Id. at 267; see also Trevathan v. State, 740 S.W.2d 500, 502 (Tex.App.—Houston [1st Dist.] 1987, writ denied). Therefore, the trial court did not err in finding that Ms. Delaney's contract claims were barred by the Act. Point of error one is overruled.
In point of error two, Ms. Delaney argues that the trial court erred in granting the University summary judgment on her claims for torts caused by the University during the course and scope of its proprietary activities in running a dormitory.
Certain governmental entities, particularly municipalities, function in a dual capacity. Generally, activities carried on pursuant to the state's obligation to promote the general welfare of the public or which are voluntarily assumed for the benefit of the public are performed in a governmental capacity. Activities performed primarily for the benefit of the inhabitants of the affected entity or agency are proprietary. Genzer v. City of Mission, 666 S.W.2d 116, 119-20 (Tex.App.—Corpus Christi 1983, writ ref'd n.r.e.). Negligent performance of proprietary functions can result in liability. See City of Gladewater v. Pike, 727 S.W.2d 514, 519 (Tex.1987). Governmental functions, however, are immune to the extent that immunity is not waived by the Tort Claims Act. Genzer, 666 S.W.2d at 119.
Although absolute governmental immunity has been substantially modified in recent years, thus far in Texas, the proprietary/governmental distinction has not been applied to acts performed by the state. The rationale has been stated thusly:
State v. Brannan, 111 S.W.2d at 348; see also Hodge v. Lower Colorado River Auth., 163 S.W.2d 855, 856 (Tex.Civ.App.— Austin 1942, writ dism'd by agr.) ("It is equally well settled, however, that a county is a governmental agency and as such is immune from liability for all torts, just as is the State itself, unless such liability is created by statute."); Benson v. Dallas County Flood Control Dist., 301 S.W.2d 729, 732 (Tex.Civ.App.—Dallas), rev'd on other grounds, 157 Tex. 617, 306 S.W.2d 350 (1957) (delineates rule of liability for cities and towns versus that for counties and states: the latter are not liable whether agents are acting in governmental or proprietary capacities). Consequently, the state is not liable for torts of its officers or agents in the absence of a constitutional or statutory provision. Lowe, 540 S.W.2d at 298.
In her brief, Ms. Delaney cites a very similar New York case, Miller v. State, 62 N.Y.2d 506, 467 N.E.2d 493, 478 N.Y.S.2d 829 (1984), and urges us to consider it as controlling authority here in the absence of a specific Texas precedent. In Miller, a student at the State University of New York was raped by an assailant who entered her dormitory through an unlocked door. 62 N.Y.2d at 510, 467 N.E.2d 493, 478 N.Y.S.2d 829. She sued the state for damages, and the trial court found liability based on her theory that the state was acting in a proprietary capacity as a landlord. The intermediate court, however, reversed on the grounds that although the plaintiff sought to recover based on the state's liability as a landlord, the claim was actually based on the state's failure to provide
The New York Court of Appeals, in turn, reversed the intermediate court and held the state liable. The court found error in the characterization of the claim as one sounding solely in inadequate police protection. Id. at 512, 467 N.E.2d 493, 478 N.Y.S.2d 829. The court found further that when the state operates housing, it is held to the same duty as private landlords in the maintenance of physical security devices in the building itself. Id. at 509, 467 N.E.2d 493, 478 N.Y.S.2d 829. The court recognized that the state acts in a dual role—in a proprietary capacity as a landlord by its ownership and control of the SUNY campus and in a governmental capacity by providing police protection through the appointment of campus security officers. Id. at 512, 467 N.E.2d 493, 478 N.Y.S.2d 829. However, the court also noted the following:
Id. at 512-513, 467 N.E.2d 493, 478 N.Y.S.2d 829. Finally, the court pointed out that when the liability of a governmental entity is at issue, it is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred that governs liability. In Miller, the negligent act under the landlord theory of liability was the failure to lock the outer doors of the dormitory. Id. at 514, 467 N.E.2d 493, 478 N.Y.S.2d 829.
Ms. Delaney argues that if we apply the Miller continuum to this case, there is no question that she has a cause of action against the state in its proprietary function as a landlord for its failure to maintain a secure outside door. She makes a cogent argument. However, as previously noted, Texas does not acknowledge that a state may act in a proprietary as well as a governmental capacity. While the concept of state sovereignty is articulated in cases which pre-date the trend to abolish absolute governmental immunity, more recent cases continue to follow that analysis. For example, the University cites Townsend v. Memorial Medical Center as dispositive. 529 S.W.2d at 264. In Townsend the court found that the intentional tort exception prohibited a cause of action under the Tort Claims Act. The court also indicated that the hospital's alleged negligence could not have been a proximate cause of the injury because the rape was an intervening cause. Id. at 266-67.
In Trevathan v. State, the court upheld a summary judgment for the state on a tort claim resulting from an assault in a bath house at a state park. 740 S.W.2d at 500. The plaintiffs alleged negligence in the state's failure to provide adequate security, namely to lock the entry gate and to provide locks for the bath house, proper lighting and adequate patrolling. Id. at 502. The court found that the Trevathans' claim clearly arose from the failure to provide, or failure in the method of providing, police protection, which is yet another bar to a cause of action under the Act. Id.; see TEX.CIV.PRAC. & REM.CODE ANN. § 101.055(3) (Vernon Supp.1990). The court also rejected the Trevathans' argument that the intentional tort exception was inapplicable to third party assaults and, further, rejected their defective premises argument because it was the conduct of the assailant that proximately caused the injury, exclusive of
Id. (emphasis added).
Because Texas does not apply the proprietary/governmental dichotomy to functions performed by the state, we reluctantly agree that Ms. Delaney has no cause of action against the state for torts allegedly caused by the University during the course and scope of its activities in running a dormitory. Point of error two is therefore overruled.
In point of error three, Ms. Delaney argues that the trial court erred in granting summary judgment on her additional claims under Tex.Civ.Prac. & Rem.Code Ann. §§ 101.021(2) and 101.022(a) (Vernon 1986). Those sections read as follows:
The University argued that these claims were prohibited by several exceptions in the Act, including the intentional tort exception. Ms. Delaney maintains, however, that statutory construction requires us to limit these more general prohibitionary sections to the extent necessary to allow the claims specifically provided by sections 101.021(2) and 101.022. She also argues that the supreme court has recently ruled that the act should be liberally construed in favor of a waiver of immunity. Robinson v. Central Texas MHMR Center, 780 S.W.2d 169, 170 (Tex.1989).
While Robinson did espouse liberal construction of the Tort Claims Act, that case dealt only with interpretation of section 101.021(2) and did not involve the interaction among sections of the act. That relationship was addressed in Townsend v. Memorial Medical Center. 529 S.W.2d at 264. There the plaintiff alleged an injury that involved the use of a motor-driven vehicle and also the condition and use of tangible property. The court of appeals noted the following:
Id. at 266. The intentional tort exception therefore limits the waiver of immunity provided in section 101.021 and, in point of fact, must also limit the waiver provided in section 101.022.
Ms. Delaney also argues in point of error three that her claims were not barred by the police protection and discretionary acts exceptions of the Tort Claims Act as argued by the University in its motion for summary judgment. However, because we agree with the trial court that the intentional tort exception does bar liability in this instance, it is not necessary that we address this argument. Point of error three is overruled.
Finally, in her fourth point of error, Ms. Delaney maintains that if it is determined that the trial court also granted the University's claim concerning improper service, then that decision is reversible error because the University was properly served. In its motion for summary judgment, the University argued that it was entitled to judgment as a matter of law because Ms. Delaney failed to comply with the two-year
We further deny Ms. Delaney's motion that this court take judicial notice of certain facts and provisions contained in the Code of Ordinances for the City of Houston as the Code is not relevant to our decision in this case.
The University is not liable in contract or in tort as a matter of law, and there is no genuine issue of material fact. We therefore affirm the summary judgment.
ELLIS, Justice, dissenting.
On motion for rehearing, the original dissenting opinion is withdrawn and is replaced with the following opinion.
I respectfully dissent. The supreme court recently confirmed that the Texas Tort Claims Act should be liberally construed in favor of a waiver of immunity. Robinson v. Central Texas MHMR Center, 780 S.W.2d 169, 170 (Tex.1989). In keeping with that directive, I would reverse the summary judgment and allow a jury to assess the issues involved.
A governmental unit is liable for "personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." TEX. CIV.PRAC. & REM.CODE ANN. § 101.021(2) (Vernon 1986). Ms. Delaney's injury occurred because of a broken lock, a condition of real property that the University neglected to repair after several requests. Usually, the criminal conduct of a third party is a superseding cause relieving the negligent actor from liability. However, under Texas law, the tortfeasor's negligence will not be excused where the criminal conduct is a foreseeable result of such negligence. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 550 (Tex.1985).
The trial court and the majority found that Ms. Delaney's claims were barred by TEX.CIV.PRAC. & REM.CODE ANN. § 101.057(2) (Vernon 1986), the intentional tort exception to the Act. However, this exception applies only to torts committed by governmental employees. See Estate of Garza v. McAllen Indep. School Dist., 613 S.W.2d 526, 530 (Tex.Civ.App.—Beaumont 1981, writ ref'd n.r.e.) (dissenting opinion). It is therefore not applicable when the intentional tort is inflicted by a third party as in this case.
To this dissent I also add my belief that the state should be held liable for tortious acts resulting from functions that are proprietary in nature. Ms. Delaney was injured through an apparent act of negligence, and her cause of action should not be barred simply because her injury occurred at a state university rather than at a private institution or in an off-campus apartment. Underscoring this inequity is the fact that in Texas we do apply the proprietary/governmental analysis to certain governmental units but not to others. As the Indiana Supreme Court has noted:
Regarding the tort claims at issue in this case, I find the reasoning in Miller v. State, discussed in the majority opinion, to
Viewed in the context of proprietary and governmental functions as defined in Genzer v. City of Mission, 666 S.W.2d 116, 119-20 (Tex.App.—Corpus Christi 1983, writ ref'd n.r.e.) (also discussed in the majority opinion), maintenance of such minimal security measures at Settegast Dormitory is an activity performed primarily for the benefit of the inhabitants of the affected entity or agency, in this case, the students at the University of Houston. The housing operation itself is not mandated by the Education Code. Furthermore, it is supported by dormitory rentals. Gulf Regional Educ. Television Affiliates v. University of Houston, 746 S.W.2d 803, 806 (Tex.App.—Houston [14th Dist.] 1988, writ denied).
I agree with Ms. Delaney's contention that the trial court erred in granting the University summary judgment on her claims for torts caused by the University during the course and scope of its proprietary activities in running a dormitory. If the state is engaged in a proprietary function, it should be on the same footing as any private individual without the shield of governmental immunity. See Bofysil v. State, 44 Mich.App. 118, 205 N.W.2d 222, 230 (1972). I would argue that Ms. Delaney has the right to have a trier of fact decide this issue as well. I would reverse the summary judgment and remand the cause for trial.