33rd / 424th District Courts

The following is taken from the online Sup. Ct. emails of synopses of cases and is of broad enough interest to replicate here.

03-0448

Texas A&M University v. Paul A. Bishop

from Galveston County and the 14th District Court of Appeals, Houston

Justices Brister and Green did not participate

REVERSED AND DISMISSED, opinion by Justice O’Neill:

The principal issues in this
personal-injury suit arising from an accidental stabbing during a
student play are (1) whether the play’s director was an independent
contractor or university employee and (2) whether, if the directors
were independent contractors, the Texas Tort Claims Act’s exception for
the use of tangible personal property is triggered when a student actor
accidentally stabbed another with a knife provided by the independent
contractor during a play the faculty advisors supervised. In this case
Bishop, a student actor, was stabbed by another student during
performance of the play “Dracula.” The play’s director had approved use
of a real knife with a “stab pad,” but the faculty drama club advisors
testified they were unaware of that decision. University policy forbids
dangerous weapons on campus. The court of appeals affirmed the trial
court’s judgment in Bishop’s favor, holding that the faculty advisors
were negligent in supervision of the play and that negligence was a use
of tangible personal property.

The Supreme Court HOLDS that
the advisors’ alleged failure to properly supervise use of the stab pad
does not constitute use of tangible property under the Tort Claims Act
and that the director was an independent contractor for whom the
university is not liable. The drama club faculty advisers did not
themselves “put or bring [the knife] into action or service’” or
“employ [the knife] for or apply [it] to a given purpose,” as the Court
defined “use” of tangible personal property in San Antonio State Hospital v. Cowan,
128 S.W.3d 244, 246 (Tex. 2004). Bishop’s claim that the knife was
inherently unsafe without an adequate stab pad does not mean that an
integral safety component was lacking for waiver purposes under the
Tort Claims Act. The play’s director performed a specialized task,
directing the play, was paid by the job, furnished props, had no
contract and was not on the university’s tax rolls. The university’s
right to terminate the director demonstrates only a minimal degree of
control and is no evidence of control detailed enough to indicate the
director had employee status.

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