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McCord v. Mem'l Med. Ctr. Hosp. - 750 S.W.2d 362 (Tex. App. 1988)


The waiver of governmental immunity provided by Tex. Civ. Prac. & Rem. Code Ann. § 101.021 is limited by Tex. Civ. Prac. & Rem. Code Ann. § 101.057. This limitation provides that claims arising out of assault, battery, false imprisonment, or any other intentional tort are not actionable. § 101.057(2)


Plaintiff Nicolas K. McCord, a former patient of defendant Memorial Medical Center Hospital ("MMC"), filed a lawsuit in Texas state court alleging that he suffered injuries when a security guard employed by MMC assaulted him. According to McCord, he entered MMC's facilities to receive medical treatment. Upon leaving the hospital premises, the security guard detained him and then beat him with a nightstick, handcuffs and fists. McCord asserted four causes of action against MMC in his petition: false imprisonment, assault, malicious prosecution, and negligent hiring and supervision of employees. MMC filed a motion for summary judgment contending that McCord's causes of action were not within the limited waiver of governmental immunity provided by the Texas Tort Claims Act ("Act"). McCord failed to timely respond to MMC's motion, which was granted by the trial court. The trial court held that MMC was a governmental agency and that McCord had failed to state a cause of action within the limited waiver of governmental immunity provided by the Act. McCord appealed, challenging the legal sufficiency of MMC's summary judgment proof.


Was summary judgment properly granted to MMC?




The appellate court affirmed the lower court's judgment. The court found that the evidence was sufficient to support summary judgment. The court found that the affidavit filed by MMC was sufficient to establish that it was a political subdivision of the State. As such, the court found that MMC was not liable for damages unless the wrongful conduct fell within the statutory waiver of governmental immunity. The court also held that McCord's claim of an intentional tort was not actionable pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2), which limited the statutory waiver under § 101.021. The court also rejected McCord's claim that the trial court should have considered all other material on file which was not before it at the summary judgment hearing. The court found that it was the duty of McCord, as non-movant, to present any fact issues to the trial court to defeat MMC's motion. 

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