Clark v. Sell

In Clark v. Sell, 228 S.W.3d 873 (Tex. App.--Amarillo 2007, pet. filed), the plaintiff sought damages on behalf of a patient who sustained injuries to his arm as he lay on that arm for a prolonged, drug-induced sleep. The plaintiff alleged that the injuries were caused because the three nurses in question did not "arouse," "fully assess," or "periodically turn" the patient. Id. at 875. The Amarillo court explained that the suit could not be brought under any available waiver provision of the TTCA: "In other words, they supposedly neglected to perform certain medical services, and that neglect resulted in his injuries. Given the nature of her allegations, we see no nexus between the injuries in dispute and a premises defect, motor vehicle, or condition or use of property . . . ." Id. Important in the Clark opinion is the apparent absence of a nexus between the use of tangible personal property and the injury which was sustained. It is not sufficient that a vehicle, premises defect, or piece of property simply be involved in some way; rather, one or another of these must be a proximate cause of the underlying injury. Id. at 874-75. Since the nurses failed to satisfy the requirements of Tex. Civ. Prac. & Rem. Code Section 101.106(f), the court affirmed the trial court's denial of the nurses' motion to dismiss. Clark, 228 S.W.3d at 875.