Jeff Fox, Individually and d/b/a Freshwater Fish, Inc. v. Tropical Warehouses, Inc.--Appeal from County Court at Law No. 2 of Denton County

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Laws-info.com » Cases » Texas » 2nd District Court of Appeals » 2003 » Jeff Fox, Individually and d/b/a Freshwater Fish, Inc. v. Tropical Warehouses, Inc.--Appeal from County Court at Law No. 2 of Denton County

State: Texas

Court: Texas Northern District Court

Docket No: 02-03-00113-CV

Case Date: 11/20/2003

Plaintiff: STEPHANIE LOVELL

Defendant: THE STATE OF TEXAS--Appeal from 319th District Court of Nueces County

Preview:The University of Texas Health Science Center at San Antonio v. Linda M. Bruen--Appeal from 37th Judicial District Court of Bexar County
MAJORITY | MAJORITY CONCURRING OPINION Nos. 04-01-00520-CV & 04-01-00792-CV THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO, Appellant v. Linda M. BRUEN, Appellee From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 99-CI-13572 Honorable Robert L. Eschenburg, II, Judge Presiding Opinion by: Sarah B. Duncan, Justice Concurring opinion by: Phil Hardberger, Chief Justice Sitting: Phil Hardberger, Chief Justice Sarah B. Duncan, Justice Karen Angelini, Justice Delivered and Filed: June 28, 2002 I concur in the majority's opinion that Bruen's claim regarding UTHSC's failure to use a theater rope is a non-use of property for which immunity is not waived. However, I disagree with the majority's analysis of the reason immunity is not waived with respect to Bruen's complaint about the condition of the ramp. With regard to Bruen's claim about the dangerous condition of the ramp, I agree that UTHSC has immunity under section 101.056 of the TTCA but not for the reason given in the majority opinion. UTHSC retains immunity under section 101.056 for the failure to perform an act that it is not required by law to perform and for its decision not to perform an act if the law leaves the performance or nonperformance to its discretion. Tex. Civ. Prac. & Rem. Code Ann. 101.056 (Vernon 1997). In this case, altering the ramp to comply with the ADA requirements was only one option available to UTHSC under section 35.150 of the ADA regulations. 28 C.F.R. 35.150(b)(1) (listing methods that a public entity may use to comply with ADA requirements). Therefore, the ADA regulations left the decision with regard to whether the ramp should be altered to UTHSC's discretion. Since the alteration of the ramp's design was only one of several options available to UTHSC, the law did not require UTHSC to alter the ramp, and UTHSC retained immunity. See Tex. Civ. Prac. & Rem. Code Ann. 101.056 (Vernon 1997). This concurrence should not be read that immunity is retained where compliance with the ADA regulations requires the alteration of a facility's design, whether the plaintiff is disabled or not. Under the facts in this case, alteration of the ramp's design simply is not mandatory under the law. For these reasons, I would reverse the trial court's order and dismiss the underlying claims for lack of jurisdiction.

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PHIL HARDBERGER, CHIEF JUSTICE PUBLISH

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