author: ANN CRAWFORD McCLURE, Justice.

text:
    CITY OF MIDLAND, Appellant, v. Patricia SULLIVAN and Michael Sullivan, Individually and Michael Sullivan as Next Friend of Adam Sullivan, Appellees.
    No. 08-99-00341-CV.
    Court of Appeals of Texas, El Paso.
    July 27, 2000.
    Opinion Overruling Rehearing Sept. 28, 2000.

      G. Chadwick Weaver, Keith Stretcher, City Atty., Mark A. Flowers, Asst. City Atty., Leslie G. McLaughlin, Midland, for Appellant.
    Staci Cazanne Pirnar, Steven K. Dewolf, Dallas, for Appellees.
    Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Patricia Sullivan and Michael Sullivan, individually, and Michael Sullivan as next friend of Adam Sullivan, brought suit against the City of Midland under the Texas Tort Claims Act, alleging that the City’s failure to properly design, construct, and maintain the crosswalk and warning signs at Midland High School resulted in injuries to Adam when he was struck by a motor vehicle. Raising three issues for review, the City brings an interlocutory appeal from the denial of its plea to the jurisdiction based on sovereign immunity. See Tex.Civ.PRAC. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2000); see Texas Department of Transportation v. Jones, 8 S.W.3d 636, 638 (Tex.1999)(governmental defendant may contest in a plea to the jurisdiction whether the state has waived immunity from suit). We affirm in part and reverse in part.

FACTUAL SUMMARY

Adam was struck by a motor vehicle at 7:27 a.m. on October 9, 1997, as he walked through a school crosswalk near Midland High School. He suffered serious injuries to his head, legs, arms, face, and shoulders, as well as internal injuries. Although Adam’s “zero hour” classes began at 7:30 a.m., the school zone signs did not activate the school zone thirty minutes in advance of classes, contrary to a City policy.

On March 30, 1998, the Sullivans filed suit against the City of Midland under the Texas Tort Claims Act alleging that the school zone, crosswalk, and warning signs failed to adequately warn drivers of crossing pedestrians. The Sullivans alleged that sovereign immunity had been waived because Adam’s injuries were caused by a condition or use of real or tangible personal property owned and/or controlled by the City. See Tex.Civ.Prac. & Rem.Code Ann. § 101.021(2)(Vernon 1997). They additionally relied on the waiver provision found in Tex.Civ.Prac. & Rem.Code Ann. § 101.060(a)(2)(Vernon 1997) relating to the condition of a traffic sign, signal, or warning device. The City answered and filed special exceptions claiming that the Sullivans’ pleadings did not demonstrate a waiver of sovereign immunity. The trial court sustained the special exceptions on September 8, 1998, and ordered the Sulli-vans to replead in order “to provide [the City] notice as to how the real property in question may have contributed to the cause of the occurrence in question.” The Sullivans filed their Second Amended Original Petition on October 13, 1998, alleging that certain defects and inadequacies of the school zone markers and warning signs proximately caused the accident. More specifically, the Sullivans alleged that although the “zero hour” classes began at 7:30 a.m. and the City had a policy of activating all school zones thirty minutes prior to classes, this particular school zone was not in operation at the time of the accident. They also alleged that the pavement markers identifying the school zone and crosswalk were not clearly visible to motorists and did not comply with the Manual for Uniform Traffic Control Devices (MUTCD). On November 2, 1998, the City filed a plea to the jurisdiction asserting that the Sullivans’ pleadings did not allege how the City’s tangible personal or real property was the instrumentality that directly caused Adam’s injuries. The Sullivans not only filed a written response but again amended their pleadings to include an allegation that the City had knowledge of the defective and inadequate condition of the warning signs and pavement markers but failed to take corrective action. They alleged an additional claim based upon the City’s action in providing a school zone, crosswalk, and warning sign which lacked an integral safety component, specifically, visible pavement markings and a sign which would have activated the school zone prior to the beginning of the “zero hour” classes. The trial court denied the plea to the jurisdiction on August 30, 1999. The City challenges that ruling in this interlocutory and accelerated appeal.

WAIVER OF SOVEREIGN IMMUNITY UNDER SECTION 101.021(2)

In its first issue for review, the City contends that the Sullivans have failed to allege a waiver of sovereign immunity under Section 101.021(2) of the Texas Tort Claims Act because they have not alleged that a condition or use of tangible personal or real property directly caused Adam’s injuries. Since governmental immunity from suit defeats a trial court’s subject-matter jurisdiction, the City argues that the trial court erred in failing to grant its plea to the jurisdiction. See Jones, 8 S.W.3d at 639; see Lamar University v. Doe, 971 S.W.2d 191, 196 (Tex.App.— Beaumont 1998, no pet.)(when a lawsuit is barred by sovereign immunity, dismissal with prejudice for want of jurisdiction is proper).

Standard of Review

A plea to the jurisdiction is a dilatory plea by which a party contests the trial court’s authority to determine the subject matter of the cause of action. City of Saginaw v. Carter, 996 S.W.2d 1, 2 (Tex.App. — Fort Worthy 1999, no pet.); State v. Benavides, 772 S.W.2d 271, 273 (Tex.App. — Corpus Christi 1989, writ denied). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject-matter jurisdiction. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); City of Saginaw, 996 S.W.2d at 2. In the context of suit against a governmental unit, the plaintiff must allege consent to suit either by reference to statute or express legislative permission. Jones, 8 S.W.3d at 638; Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex.1970); Texas Parks & Wildlife Dept. v. Garrett Place, Inc., 972 S.W.2d 140, 143 (Tex.App. — Dallas 1998, no pet.). The question of subject-matter jurisdiction is a legal question which we review de novo. City of Saginaw, 996 S.W.2d at 2; Texas Dept. of Health v. Doe, 994 S.W.2d 890, 892 (Tex.App. — Austin 1999, pet. dism’d by agr.); see Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999)(ripe-ness, as an element of subject-matter jurisdiction, is a legal question subject to de novo review). In reviewing the trial court’s denial of a plea to the jurisdiction, we look solely to the allegations in the petition and accept them as true. See City of Saginaw, 996 S.W.2d at 2-8; Firemen’s Ins. Co. v. Board of Regents of Univ. of Tex. Sys., 909 S.W.2d 540, 541 (Tex.App.— Austin 1995, writ denied). We do not examine the merits of the case. See City of Saginaw, 996 S.W.2d at 3. If the petition does not allege jurisdictional facts, the plaintiffs suit is subject to dismissal only when it is impossible to amend the pleadings to confer jurisdiction. City of Saginaw, 996 S.W.2d at 3; see Texas Ass’n of Bus., 852 S.W.2d at 446; Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex. App. — Austin 1994, writ denied).

Liability Under the Tort Claims Act

A municipality such as the City of Midland is immune from liability for its governmental functions unless that immunity is specifically waived. City of La-Porte v. Barfield, 898 S.W.2d 288, 291 (Tex.1995); Gonzales v. City of El Paso, 978 S.W.2d 619, 622 (Tex.App.-El Paso 1998, no pet.). By designating warning signals, the regulation of traffic, engineering functions, and the maintenance of traffic signals, signs, and hazards as governmental functions, the Legislature has imbued these functions with immunity unless a claim falls within one of three specific areas of liability for which immunity is waived by Section 101.021 of the Tort Claims Act — use of publicly owned vehicles or other motor-driven equipment; a condition of real property (premises liability); and the condition or use of tangible personal property. See Medrano v. City of Pearsall, 989 S.W.2d 141, 144 (Tex. App.— San Antonio 1999, no pet.); McKinney v. City of Gainesville, 814 S.W.2d 862, 865 (Tex.App. — Fort Worth 1991, no writ). The basis for liability in the latter two areas is found in Section 101.021(2) of the Tort Claims Act which provides that a governmental unit in the state is liable for:

(2) 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.Cxv.PRAc. & Rem.Code Ann. § 101.021(2)(Vernon 1997). However, in the case of a claim arising from the absence, condition, or malfunction of a traffic or road sign, signal, or warning device, a governmental unit will retain its immunity unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice. Tex.Civ.Prac. & Rem. Code Ann. § 101.060(a)(2)(Vernon 1997). Thus, Section 101.060(a)(2) imposes a limitation on the waiver of immunity provided by Section 101.021(2).

To state a claim involving the “condition” of property, the plaintiff must allege that defective or inadequate property caused the injury. Salcedo v. El Paso Hospital District, 659 S.W.2d 30, 31-32 (Tex.1983); Garrett Place, 972 S.W.2d at 143. The injury must be proximately caused by the condition or use of the property. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.1998), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998); Garrett Place, 972 S.W.2d at 143. Proximate cause consists of both cause in fact and foreseeability. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). Cause in fact means that the defendant’s act or omission was a substantial factor in bringing about the injury which would not otherwise have occurred. Union Pump, 898 S.W.2d at 775. The requirement of causation is more than mere involvement. Bossley, 968 S.W.2d at 343; Garrett Place, 972 S.W.2d at 143. Property does not cause injury if it does no more than furnish the condition that makes injury possible. Bossley, 968 S.W.2d at 343; Garrett Place, 972 S.W.2d at 143.

Direct Causation

The City focuses its causation arguments on two different theories of recovery pled by the Sullivans: (1) that the defective or inadequate condition of tangible personal and real property proximately caused Adam’s injuries; and (2) that the City provided a school zone, crosswalk, and warning sign which lacked an integral safety component. Citing Bossley, the City argues that the Sullivans have incorporated the magic words of the Tort Claims Act but have failed to allege “how a condition or use of the City’s tangible personal or real property directly caused Adam Sullivan’s injuries.... ”

In Bossley, a mental patient who had previously attempted to take his own life escaped from a county mental health facility through a door left unlocked as an employee exited during her lunch hour. During the subsequent pursuit by mental health facility personnel and police, the patient leaped into the path of a truck and was killed. The patient’s estate and his parents sued the county mental health facility and certain of its employees. In response to the defendants’ motion for summary judgment based on immunity grounds, the plaintiffs alleged that their claims came within the statutory waiver of immunity under Section 101.021(2) of the Tort Claims Act. Bossley, 968 S.W.2d at 341. Specifically, they alleged that their son’s death was caused by the employee unlocking the outer door without first locking the inner door or checking on the patient’s whereabouts. Id. The trial court granted the motion. Id. The Dallas Court of Appeals reversed the summary judgment, finding that the involvement of some condition or use of tangible property was sufficient to waive immunity under Section 101.021(2). Id. citing Bossley v. Dallas County Mental Health and Mental Retardation, 934 S.W.2d 689, 695 (Tex.App.— Dallas 1995). The Supreme Court reversed the intermediate court because the requirement of causation is more than mere involvement of tangible personal or real property. Bossley, 968 S.W.2d at 343. Property does not cause injury if it does no more than furnish the condition that makes the injury possible. Id. The Court noted that although the patient’s escape through the unlocked doors was part of a sequence of events that ended in his suicide, the use and condition of the doors were too distant geographically, temporally, and causally from the patient’s death to be said to have caused it. Id. Finally, the Court pointed out that the real substance of the plaintiffs’ complaint was that the patient’s death was caused not by the condition or use of property, but by the failure of the county mental hospital staff to restrain him once they learned he was suicidal. Id.

Likening this case to Bossley, the City maintains that the school zone and its attendant markers and warning signs were merely involved in the occurrence and did nothing more than furnish the condition which made the injury possible; they were not the actual instrumentality which caused Adam’s injuries. The City also urges that Bossley stands for the proposition that the tangible personal or real property in question must directly cause the injury or death. We disagree with the City’s interpretation of Bossley and its purported application to the facts here.

While the Supreme Court insisted in Bossley that proximate cause under Section 101.021(2) requires more than mere involvement of tangible personal or real property, it did not hold that the property be the actual instrumentality of the personal injury or death. Nor did it create some new requirement for a showing of proximate cause under Section 101.021(2). Instead, it adhered to traditional notions of proximate cause by finding that the unlocked doors were too attenuated from the patient’s death to be said to have caused it. See Union Pump, 898 S.W.2d at 775 (noting that at some point in the causal chain, the defendant’s conduct or product may be too remotely connected with the plaintiffs injury to constitute legal causation); Michael v. Travis County Housing Authority, 995 S.W.2d 909, 912-15 (Tex.App.— Austin 1999, no pet.)(noting that causation standard under Section 101.021(2) is that of proximate cause, not direct cause, immediate cause, or sole cause, and rejecting argument that Bossley requires showing that the property in question directly inflicted the injury).

We find Bossley distinguishable for the following reasons. Here, the pleadings allege that the motorist was unaware of the school zone and the likelihood that a student might be in the crosswalk due to the defective and inadequate condir tion of the pavement markers and the warning signs. Accordingly, the motorist traveled at an excessive rate of speed and was not on the lookout for students in the crosswalk. As alleged, the condition of the property, while not the sole factor, is nevertheless a substantial factor in bringing about Adam’s injuries. The condition of the property is not so distant geographically, temporally, and causally from the accident as to require a conclusion that legal causation does not exist. The Sulli-vans are not attempting to use a complaint regarding the condition of the property and its tangential involvement in the incident to bring a non-actionable claim within the Tort Claims Act. The gravamen of the Sullivans’ complaint actually relates to the defective and inadequate condition of the property, not to the negligent conduct of some City employee. The City’s first argument is without merit.

The City also contends that the Sullivans’ cause of action pertaining to the lack of an integral safety component in the school zone, crosswalk, and school zone sign fails to confer jurisdiction upon the trial court because it does not state a claim falling within Section 101.060. In asserting this cause of action, the Sullivans rely on the rule that a governmental unit may waive immunity under the use of tangible personal property portion of Section 101.021(2) if it provides equipment which is defective because it lacks an integral safety component. See, e.g., Robinson v. Central Texas MHMR Center, 780 S.W.2d 169, 171 (Tex.1989)(state liable for employee’s provision of swimming attire that did not include life preserver because that was use or condition of tangible personal property); Lowe v. Texas Tech Univ., 540 S.W.2d 297, 300 (Tex.1976)(university liable for providing uniform without knee pad to football player because it was use or condition of tangible property); Overton Memorial Hospital v. McGuire, 518 S.W.2d 528, 529 (Tex.1975)(negligently providing hospital bed without bed rails is condition or use for which government is liable under Tort Claims Act); Texas Department of Mental Health & Mental Retardation v. McClain, 947 S.W.2d 694, 697 (Tex.App. — Austin 1997, writ denied)(lockers with removable metal rod and wheelchair with removable foot pedal lacked an integral safety component and the entity’s negligent provision of the property proximately caused the plaintiffs injury). The Supreme Court has described Robinson and Lowe as the outer bounds of what it has defined as use of tangible personal property. Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex.1996). While the Sullivans assert that this rule also applies to a condition or use of tangible real property such as the traffic and warning signs at issue here, none of the cases cited by them stand for that proposition and we are not inclined to extend the rule. Further, to the extent this theory of recovery relates to the use of the warning and traffic signs, it does not state an actionable claim under Section 101.060(a)(2) because it does not relate to the condition of the warning signs. The trial court erred in denying the City’s plea to the jurisdiction but only as to this theory of recovery. Accordingly, Issue One is overruled in part and sustained in part.

LEGISLATIVE AND DISCRETIONARY FUNCTIONS

In the second issue, the City maintains that the Sullivans’ theory of recovery pertaining to the failure of the crosswalk to comply with the mandates of MUTCD and the failure of the school zone to be operative thirty minutes prior to the beginning of the “zero hour” classes does not demonstrate a waiver of immunity because the pleadings describe non-actionable legislative and discretionary actions, and further, the pleadings do not allege what notice the City had of the alleged defects. We turn to the pleadings:

Plaintiffs further allege that the City owed a duty pursuant to the Texas Tort Claims Act, Section 101 et seq. to design, construct and install the crosswalk in accordance with the mandatory provisions outlined in Section 7C-3 of the Manual for Uniform Traffic Control Devices (‘MUTCD’). The City was aware that the crosswalk did not comply with the requirements set forth in Section 7C-3 of the MUTCD. Further, the City owed a duty to maintain and repair the pavement markers installed by the City at the crosswalk location. The City conducted inspections of the crosswalk and was aware that the pavement markers were worn down, broken and in need of replacement. Despite such knowledge, the City failed to replace the damaged pavement markers and/or to bring the crosswalk into compliance with the MUTCD, so as to give accurate and sufficient warning to drivers of possible student-pedestrian traffic and, as a result, failed to protect Adam Sullivan while he was in the crosswalk. The defective condition created by the City’s failure to design, construct and install the crosswalk in accordance with the MUTCD and/or its failure to maintain and repair the pavement markers created an unreasonable risk of harm to Adam Sullivan.
Plaintiffs further allege that the City owed Adam Sullivan the duty to warn him of the dangerous condition of the crosswalk and school zone or to make the conditions safe pursuant to Texas Tort Claims Act Section 101.022 and 101.060 et seq. Adam Sullivan was not aware that the crosswalk was not in compliance with the mandates of the MUTCD and that the pavement markers were not visible to drivers traveling south along ‘A’ street nor was he aware that the school zone was not operating at the time he crossed the street on his way to class. The City, however, had actual notice of the dangerous condition created by the school zone and the crosswalk. The City knew that Midland High had zero hour classes starting at 7:30 a.m. and that the school zone would not protect students crossing the street for those classes. The City also knew that the crosswalk was not in compliance with the mandates of MUTCD Section 7C-3 and that the pavement markers needed to be replaced and/or repaired. Despite such knowledge, the City did not take any action to warn Adam Sullivan of the dangerous condition of the school zone or the crosswalk nor did it exercise ordinary care to make the condition safe. The defective conditions of the crosswalk and school zone created an unreasonable risk of harm to Adam Sullivan.

Placement of Signs is Discretionary

Citing State Department of Highways & Public Transportation v. King, 808 S.W.2d 465, 466 (Tex.1991), the City first argues that the placement of traffic signs or warning devices is discretionary, and therefore, there is no liability arising out of either their placement or the failure to place them. Under Section 101.060(a)(1), a governmental unit is not liable for the failure to initially place a traffic or road sign, signal, or warning device if the failure is a result of the discretionary action of the governmental unit. Tex.Civ.PRAC. & Rem.Code Ann. § 101.060(a)(l)(Vernon 1997). In King, which involved the failure to place a sign near an intersection so as to prevent a motorist from entering a one-way access road while traveling the wrong direction, the Supreme Court held that MUTCD did not establish a mandatory duty to install particular traffic control devices. This case, however, does not concern the initial placement of the warning signs but rather addresses their condition after having been placed, i.e., the visibility of the pavement markers due to disrepair and the failure of the school zone sign to activate the school zone thirty minutes prior to class. See Tex.Civ.PRAC. & Rem.Code Ann. § 101.060(a)(2)(Vernon 1997). Therefore, the City’s reliance on Section 101.060(a) and King is misplaced.

Failure to Allege a “Condition” Under Section 101.060

Complaining that the Sullivans have not alleged any defective conditions of the crosswalk and warning signs, the City urges that the pleadings have not stated a premises defect claim under Section 101.060(a)(2). Similar to its argument raised in the first issue, the City also contends that the condition of the warning signs and school zone signs is not really a premises defect but is merely a condition of the City’s premises which furnished the circumstances in which the accident occurred. In support of the latter argument, it cites Laman v. Big Spring State Hosp., 970 S.W.2d 670 (Tex.App. — Eastland 1998, pet. denied). There, Laman was admitted to the Southwest Psychiatric Services Unit at the Big Spring State Hospital. After she became agitated, combative, and delusional, the staff escorted her to a “change-of-environment” room which was located in the men’s side of the unit. A doctor prescribed a sedative and Laman was left alone in the unlocked room after she fell asleep. A short time later, Laman was raped by a male patient. She filed suit against the state hospital, alleging that she was injured as a result of a condition or use of the room in which she was assaulted, the room having been: (1) unlocked with the door open to the men’s hall; (2) unstaffed; and (3) occupied only by a heavily-sedated female patient. Laman alleged that the condition of the room constituted a premises defect, that the use of the room in that condition constituted a misuse of tangible property, and that the use of the room constituted the negligent implementation of policy. Laman, 970 S.W.2d at 671. The trial court granted summary judgment in favor of the State based upon sovereign immunity. The Eastland Court of Appeals found that the facts did not support a cause of action for a premises defect because they did not involve a defect, shortcoming, or imperfection of the room or the door. Id. at 672. We first find Laman factually distinguishable. Second, we reject the City’s argument to the extent it raises the same contention addressed in Issue One.

In urging that the Sullivans have failed to allege a premises defect cause of action because they do not describe a defect or shortcoming in the crosswalk or warning signs, the City relies exclusively on the definition of “premises defects” found in Billstrom v. Memorial Medical Center, 598 S.W.2d 642, 646 (Tex.Civ.App. — Corpus Christi 1980, no writ):

The word ‘premises’ is commonly defined as ‘a building or part of a building with its grounds or other appurtenances.’ The word ‘defect’ is commonly defined as a ‘shortcoming, imperfection’ or ‘want of something necessary for completeness.’

While we do not disagree with Billstrom’s definition of premises defect, the case did not involve Section 101.060(a)(2). The term “condition” as it is used in Section 101.060(a)(2) refers to the maintenance of a sign or signal in a condition sufficient to properly perform the function of traffic control for which it is relied upon by the traveling public. Lawson v. McDonald’s Estate, 524 S.W.2d 351, 356 (Tex.Civ.App. — Waco 1975, writ ref`d n.r.e.); see also Creek v. Texas State Dept. of Highways and Public Transp., 826 S.W.2d 797, 802 (Tex.App. — Houston [14th Dist.] 1992, writ denied). Further, the term refers to either an intentional or inadvertent state of being. Sparkman v. Maxwell, 519 S.W.2d 852, 857-58 (Tex.1975). Applying this rule, the question is whether the Sulli-vans’ pleadings allege that the pavement markers and school zone warning signs were installed and maintained in a condition insufficient to properly perform the function of traffic control for which they are relied upon by the traveling public.

We find that the pleadings adequately state such an allegation.

The Sullivans first alleged that the pavement markings lacked visibility due to their state of disrepair, and consequently, failed to warn the motorist that students might be crossing at that particular point in the school zone. We find that this allegation adequately states a premises defect cause of action based upon a condition of a warning sign.

The Sullivans also alleged that the school zone sign, due to its failure to activate the school zone at 7 a.m., failed to properly perform its intended function of requiring motorists to reduce their speed and be alert for students in the crosswalks. Citing Bellnoa v. City of Austin, 894 S.W.2d 821 (Tex.App.— Austin 1995, no writ), the City argues that when a sign accurately reflects a legislative enactment, such as the operative time period for the school zone, and it operates as intended by the governing body, then the complaint does not involve a “condition” of the sign. In support of its argument, the City directs our attention to Midland City Ordinance 7150 which establishes the boundaries, hours, and applicable speed limits of all school zones within the Midland city limits, and more specifically, sets the hours of the Midland High school zone at 7:30 am. until 4:30 p.m. with a speed limit of 20 miles per hour.

In Bellnoa, two children were struck by a privately owned and operated vehicle while attempting to cross the street. One later died from his injuries. The parents sued the City of Austin, alleging various acts of negligence relating to the regulation of traffic. The trial court granted summary judgment in favor of the municipality based on sovereign immunity. On appeal, the plaintiffs alleged that the municipality was negligent in raising the speed limit from 30 to 40 miles per hour. Bellnoa, 894 S.W.2d at 825. The Austin Court of Appeals determined that the municipality could not be held liable for posting a traffic sign which accurately reflected the new speed limit, thus rejecting the plaintiffs’ theory that the sign misled the public into believing that the new speed limit was safe and reasonable and that such a discrepancy was a “condition” of the sign. Id. The posted sign was merely an indication of the legal speed limit, and the source of the problem was the setting of the speed limit, not the posting or condition of the sign. Id. Furthermore, the municipality’s decision to raise the speed limit was not actionable under the Tort Claims Act. Id. at 826.

The instant case presents the reverse situation. According to the summary judgment evidence, the City traffic engineer recommended that the school zones begin operation thirty minutes in advance of classes. The City adopted the recommendations of the City traffic engineer as its policy in Municipal City Ordinance 7150. Before the advent of “zero hour” classes, the Midland City Council had determined that the school zone should not begin operation until 7:30 a.m. — thirty minutes in advance of 8 o’clock classes. Unfortunately, the City Council failed to update Municipal City Ordinance 7150 and the school zone hours to take into account the promulgation of “zero hour” classes. Because the ordinance is erroneous and contrary to the City’s own policy, this case is distinguishable from Bellnoa. Although the school zone signs are consistent with the ordinance, and thus, were functioning as designed, they were not functioning as desired or intended since the school zone did not come into operation thirty minutes in advance of classes as contemplated by the City traffic engineer and the ordinance. Compare Sparkman, 519 S.W.2d 852 (a stop light that displayed a red left-turn arrow, which confused some motorists into proceeding left on red, was a “condition” of the light for which the municipality could be held hable under the Texas Tort Claims Act) with Alvarado v. City of Lubbock, 685 S.W.2d 646, 648-49 (Tex.l985)(erroneous sign which stated that speed limit was 55 miles per hour when actual speed limit, as provided by city ordinance, was 50 miles per hour, involved absence of or condition of traffic sign for which governmental immunity has been waived). Accordingly, the trial court did not err in denying the City’s motion for summary judgment as related to this ahegation.

Design of and Failure to Repair the Crosswalk

The City, citing Section 101.056 of the Civil Practice and Remedies Code, next contends that the Sullivans’ complaints regarding the design of the crosswalk and the poor visibility of the pavement markers are not actionable because they are nothing more • than complaints about discretionary decisions made by the City traffic engineer and the City Council. According to Section 101.056, waiver of sovereign immunity does not apply to a claim based on:

(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or
(2) a governmental unit’s decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.

Tex.Civ.PRAc. & Rem.Code Ann. § 101.056 (Vernon 1997).

Whether a governmental activity is discretionary is a question of law. State v. John San Miguel, 2 S.W.3d 249, 251 (Tex.1999). The State preserves its immunity for formulating policy because it is a discretionary act. Id. Decisions about highway design and the type of safety features to install are discretionary policy decisions. Id. citing Maxwell v. Texas Dep’t of Transp., 880 S.W.2d 461, 463-64 (Tex.App. — Austin 1994, writ denied). A court should not second-guess a .governmental unit’s decision about the type of marker or safety device that is the most appropriate. Id.

Before addressing which, if any, of the Sullivans’ allegations concern discretionary actions on the part of the City, it is necessary to consider the Sulli-vans’ contention that Section 101.056 does not apply to its claim regarding the condition of a warning device under Section 101.060(a)(2). The First Court of Appeals has held in two cases that Section 101.056 does not apply to claims arising from the absence of a warning device if the government knew of the problem and failed to act within a reasonable time. See Reyes v. City of Houston, 4 S.W.3d 459, 462 (Tex.App. — Houston [1st Dist.] 1999, pet. filed); Hams County v. Demny, 886 S.W.2d 330, 332 n. 1 (Tex.App. — Houston [1st Dist.] 1994, writ denied). This position is compelling when we consider that Section 101.060(a)(1) specifically provides immunity for the decision to initially place a traffic or road sign, signal or warning device if the failure is a result of discretionary action on the part of the governmental unit. Significantly, this retention of immunity due to the exercise of discretionary power is not found in Section 101.060(a)(2) or (a)(3). If Section 101.056 applies to Section 101.060 in its entirety as suggested by the City, then subsection (a)(l)’s language regarding discretionary action is redundant and the legislature’s decision not to include this same language in subsections (a)(2) and (a)(3) is rendered meaningless. In interpreting a statute, we must presume that the legislature intended for the entire statute to be effective. See Tex. Gov’t Code Ann. § 311.021(2)(Vernon 1998). Furthermore, an interpretation which refuses to apply Section 101.056 to claims under Section 101.060(a)(2) is consistent with other case law. While a governmental unit has discretion whether to initially place a sign or warning signal, it has a duty to exercise reasonable care in implementing a decision to install such a device. See Zambory v. City of Dallas, 838 S.W.2d 580, 582 (Tex.App. — Dallas 1992, writ denied). Accordingly, we agree with the First Court of Appeals that Section 101.056 does not apply to a claim brought under Section 101.060(a)(2).

The next question is whether the claims relating to the design of and failure to repair the crosswalk are brought under Section 101.060(a)(2). In addressing this issue, it is helpful to distinguish between the Sullivans’ complaints regarding the design of the crosswalk and the poor visibility of the pavement markers due to their state of disrepair. As we have already determined, the allegations pertaining to disrepair of the pavement markers relates to their condition as that term is used in Section 101.060(a)(2). Accordingly, the trial court did not err in rejecting the City’s argument that this is an exercise of discretionary power.

A different issue is presented, however, by the claim relating to the design of the crosswalk and its failure to comply with MUTCD. To the extent the Sullivans allege that the initial design of the crosswalk is defective because it did not comply with MUTCD, as opposed to a claim related to the negligent installation and failure to maintain the crosswalk and its markers, the claim is not brought under Section 101.060(a)(2) because it does not relate to the absence, condition, or malfunction of a traffic or road sign, signal, or warning device. Furthermore, the design of the crosswalk is a discretionary act for which the City retains its sovereign immunity by virtue of Section 101.056. See San Miguel, 2 S.W.3d at 251 (decisions about highway design and about what type of safety features to install are discretionary policy decisions for purposes of Section 101.056; thus, state’s use of barrel and sign warning system was discretionary act for which state retained sovereign immunity); see also King, 808 S.W.2d at 466 (MUTCD is not mandatory and does not deprive state of discretion in deciding whether to install particular traffic control device). Therefore, the trial court erred insofar as it denied the City’s plea to the jurisdiction as to this allegation. However, the trial court properly concluded that the Sullivans are permitted to maintain their allegation that the City negligently installed and maintained the crosswalk. See San Miguel, 2 S.W.3d at 251 (distinguishing between complaint based on State’s decision to use barrels as warning device, which is discretionary and not actionable, and claim that State negligently placed the barrels); Villarreal v. State, 810 S.W.2d 419, 421 (Tex.App.—Dallas 1991, writ denied)(noting that once the decision has been made to erect a particular sign, it must conform to the specifications of MUTCD).

Posted Time Period on School Zone Signs

Finally, we address the City’s contention that the Sullivans, by alleging that the time posted on the school zone warning sign is a condition of property which contributed to Adam’s injuries, are attempting to complain about the legislative decision of the City Council in setting the time period of the school zone. The Sullivans maintain that their pleadings properly state a cause of action for negligent implementation of a discretionary policy. We agree with the Sullivans. They alleged

[T]hat the City owed a duty to correct the condition of the school zone and the school zone sign pursuant to Texas Tort Claims Act Section 101 et seq. The City had a non-discretionary policy and practice of starting all school zones at least thirty minutes prior to the start of classes. The City knew that the school zone on ‘A’ street was in violation of this policy. Despite such knowledge, the City failed to properly activate the school zone at the scene of the accident pursuant to the City policy and failed to properly mark and maintain the school zone and signage to reflect changes in school start times so as to give accurate and sufficient warning to drivers of possible student-pedestrian traffic and, as a result, failed to protect Adam Sullivan while he was in the school zone. The defective condition created by the City’s failure to activate the school zone and school zone sign in accordance with established City policy created an unreasonable risk of harm to Adam Sullivan.

It is well established that a municipality can be held liable for the negligent implementation of a discretionary act. See Zambory, 838 S.W.2d at 582 (where plaintiff brought suit against municipality under Section 101.060(a)(2) due to absence of traffic signal, city not entitled to sovereign immunity on ground that decision to delay installation of traffic signal was based on discretionary power because fact issue existed with regard to whether city had already determined that it should install a traffic signal, and thus, suit involved negligent implementation of a discretionary decision for which there is no sovereign immunity). Decisions incidental or related to the implementation of a discretionary or policy-formulated decision are not immune from liability. Id. citing State v. Terrell, 588 S.W.2d 784, 788 (Tex.1979). While the City’s decision to establish a school zone and its hours of operation are certainly discretionary acts, it is subject to suit for negligent implementation of these decisions. The above allegations related to the failure of the City to update the school zone signs in accordance with its own policy and prior determination states a claim for negligent implementation of a discretionary decision. Therefore, the trial court did not err in denying the City’s plea to the jurisdiction. For all of these reasons, Issue Two is sustained in part and overruled in part.

NON-USE OF PROPERTY

In its final issue, the City asserts that the design of a crosswalk at variance with MUTCD does not waive governmental immunity because MUTCD is not real property or tangible personal property such that its non-use is not actionable under the Tort Claims Act. Similarly, the City argues that the asserted failure to follow its own policy does not constitute non-use of property under the Act. As pointed out by the Sullivans, this portion of the pleadings does not expressly allege and cannot reasonably be interpreted as containing any allegations related to the non-use of property, including non-use of MUTCD. Accordingly, Issue Three is overruled.

CONCLUSION

Having sustained Issues One and Two in part, we reverse the order of the trial court and dismiss the Sullivans’ allegations related to the use of the warning and traffic signs, and the initial design of the crosswalk, because it would be impossible to amend the pleadings to confer jurisdiction. Having overruled the remaining arguments raised in Issues One and Two, and Issue Three in its entirety, we affirm the trial court’s order as so modified.

OPINION ON MOTION FOR REHEARING

We issued our original opinion on July 27, 2000, in which we affirmed in part and reversed in part the trial court’s order denying the City’s plea to the jurisdiction on sovereign immunity grounds. We find it necessary to address one of the arguments raised by the City in its motion for rehearing.

In its second ground for rehearing, the City challenges our rejection of its argument that the Sullivans’ pleadings do not state a premises defect claim by alleging that the school zone sign failed to activate the school zone at 7 a.m. or thirty minutes in advance of zero hour classes. The City also argues that we exceeded the scope of our review by examining the evidence attached to the Sullivans’ response.

On original submission, the City contended that the portion of the Sullivans’ pleadings alleging a failure of the school zone to be operative thirty minutes prior to the beginning of the “zero hour” classes does not demonstrate a waiver of immunity because the pleadings describe non-actionable legislative and discretionary actions. In support of its argument, the City attached to its brief a copy of Midland City Ordinance 7150 which establishes the boundaries, hours, and applicable speed limits of all school zones within the Midland city limits, and more specifically, sets the hours of the Midland High school zone at 7:30 a.m. until 4:30 p.m. with a speed limit of 20 miles per hour. The City had not attached the ordinance to its plea to the jurisdiction filed in the trial court, nor did it ask that court to take judicial notice of the ordinance. In fact, the City did not make this argument in its plea to the jurisdiction. Nevertheless, the City, citing Bellnoa v. City of Austin, 894 S.W.2d 821 (Tex.App. — Austin 1995, no writ), argued in this Court that when a sign accurately reflects a legislative enactment, such as the operative time period for the school zone, and it operates as intended by the governing body, then the complaint does not involve a “condition” of the sign. City of Midland, at 12 . In their written response to the plea to the jurisdiction, the Sullivans argued that the City’s policy of starting all school zones thirty minutes in advance of classes is not discretionary, and in support of this assertion, they attached a copy of Gary Saunders’ testimony.

Distinguishing Bellnoa, we originally held that while the school zone signs may have been consistent with Municipal City Ordinance 7150, the ordinance itself is erroneous because it is not in compliance with the City’s policy of beginning all school zones thirty minutes in advance of classes. City of Midland, at 12. Thus, the school zone signs were not functioning as intended. Id. The City complains vociferously about our reference to Saunders’ testimony in our original opinion, alleging that it is improper to look outside of the pleadings in passing upon a plea to the jurisdiction. The City, however, fails to address how it is possible for this Court to restrict our review to the face of the Sulli-vans’ pleadings, yet at the same time, consider Municipal Ordinance 7150 in passing on its plea to the jurisdiction. If it is proper for this Court to take the ordinance into account, then ordinary notions of fair play suggest that the Sullivans should be permitted to respond by including relevant evidence in their response. Even if we must exclude the responsive evidence from our review of this issue, the Sullivans’ pleadings specifically allege that the City had a non-discretionary policy of starting all school zones thirty minutes in advance of classes. As set forth in our original opinion, the Sullivans alleged that Midland High had zero hour classes starting at 7:30 a.m., but the school zone was not operating at the time Adam crossed the street on his way to class. Id. at 10. We also set forth the following portion of the pleadings in a different section of the opinion, but they are applicable as well to this issue:

Plaintiffs allege that the City owed a duty to correct the condition of the school zone and the school zone sign pursuant to Texas Tort Claims Act Section 101 et seq. The City had a non-discretionary policy and practice of starting all school zones at least thirty minutes prior to the start of classes. The City knew that the school zone on ‘A’ street was in violation of this policy. Despite such knowledge, the City failed to properly activate the school zone at the scene of the accident pursuant to the City policy and failed to properly mark and maintain the school zone and signage to reflect changes in school start times so as to give accurate and sufficient warning to drivers of possible student-pedestrian traffic and, as a result, failed to protect Adam Sullivan while he was in the school zone. The defective condition created by the City’s failure to activate the school zone and school zone sign in accordance with established City policy created an unreasonable risk of harm to Adam Sullivan. [Emphasis added].

Id. at 12.

Taking these pleadings as true, as we must, we adhere to our holding that while the school zone signs may have been consistent with Municipal City Ordinance 7150, the school zone signs were not functioning as intended because the signs, like the ordinance, were erroneous and not in compliance with the City’s policy of beginning all school zones thirty minutes in advance of classes. The City’s motion for rehearing is overruled.

      . "Zero hour” or "zero period” classes are scheduled before the regular class day begins with "first period.”

      . See Tex.Civ.Prac. & Rem.Code Ann. § 101.0215(20), (21), (30), and (31)(Vernon Supp.2000).

      . Liability for premises defects is implied under Section 101.021(2) because premises defects arise from a condition existing on real property. Lamar University, 971 S.W.2d at 195. See also TexCiv.Prac. & Rem.Code Ann. § 101.022 (Vernon 1997)(specifying duty owed for premise and special defects).

      . The City has raised the complaints pertaining to the second theory of recovery for the first time on appeal because the Sullivans added the theory pertaining to the lack of an integral safety component in its third amended petition filed after the plea to the jurisdiction. Because subject-matter jurisdiction is an issue that may be raised at any time, we will address the arguments. Texas Ass’n of Business, 852 S.W.2d at 445.

      . Excluding the allegation pertaining to the provision of equipment which lacks an integral safety component, these same allegations state a cause of action under Section 101.060 insofar as they pertain to a condition of the traffic and warning signs. However, this theory is contained within the other pleadings.

      . The City has completely failed to brief its complaint regarding the asserted failure of the pleadings to describe in what manner the „City had notice of the defects. Accordingly, it is waived. See Tex.R.App.P. 38.1(h); TXO Production Co. v. M.D. Mark, Inc., 999 S.W.2d 137, 143 (Tex.App. — Houston [14th Dist.] 1999, no pet.); CherCo Properties, Inc. v. Law, Snakard & Gambill, P.C., 985 S.W.2d 262, 266-67 (Tex.App. — Fort Worth 1999, no pet.).

      . Although the City attached a copy of the ordinance as an appendix to its brief, it did not include a copy in its motion for summary judgment. Nevertheless, there is other summary judgment evidence that the established hours of the school zone are from 7:30 a.m. until 4:30 p.m.

      . See City of Midland v. Sullivan, 33 S.W.3d 1 (Tex.App. — El Paso, 2000, no pet. h.).


source: Caselaw Access Project

license: Public Domain

text:
    Jack Joseph DUFFY, Appellant, v. The STATE of Texas, Appellee.
    No. 08-99-00375-CR.
    Court of Appeals of Texas, El Paso.
    Aug. 31, 2000.

      Ronald L. Goranson, Milner Goranson Sorrels, Udashen Wells & Parker, Dallas, for Appellant.
    Tom O’Connell, Crim. Dist. Atty., Sharon W. Curtis, McKinney, for State.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Jack Joseph Duffy appeals his conviction for the offense of unlawful interception of electronic communication. Following a bench trial, the court found Appellant guilty and assessed punishment at imprisonment for a term of two years, probated for two years, and a fine of $1,000. On appeal, Appellant challenges the legal and factual sufficiency of the evidence, and the validity of the indictment. We affirm.

FACTUAL SUMMARY

This criminal prosecution arises out of conduct which occurred during divorce proceedings, which by all accounts became acrimonious. In March of 1996, Darlene Duffy filed a petition for divorce after twenty-six years of marriage to Appellant. Pursuant to the agreed temporary orders, both Darlene and Appellant continued to reside in the family residence, a.two-story home near Wylie, Texas. Darlene lived in the master bedroom downstairs while Appellant moved into an upstairs bedroom. Both parties had equal access to the remainder of the house, including the family study. Prior to finalization of the divorce and while Appellant still lived in the marital home, Darlene became concerned that Appellant was listening to telephone messages intended for her. She removed the answering machine from the telephone in the kitchen and obtained voice mail capabilities. According to Darlene, Appellant asked her for the access code to the voice mail but she refused to give it to him. Darlene’s suspicions were further aroused when Appellant “seemed to ... know every move [she was] going to make before [she] made it,” and she expressed her concerns to her attorney and her children. In particular, Appellant revealed that he knew where she had become employed, a matter she had gone to great lengths to keep private from him. Further, Appellant’s divorce lawyer had seemingly anticipated a deposition that Darlene and her attorney planned to take. Because Darlene had discussed the deposition on the telephone with her attorney, she formed the opinion that Appellant, a vice president of marketing for a telecommunications company, had placed a “bug” on the telephones in the home. She began looking for it one evening when Appellant was not at home. She looked behind a cabinet in the study and found a black wire which did not match the telephone. When Darlene pulled on the wire, she saw that it went into the cabinet. After removing the books from the lower shelf of the cabinet, she found a “black box” which contained a microcassette tape. A red light was illuminated on the outside of the box. It appeared to be some type of tape recording device. Darlene played back the tape and discovered that it contained various telephone conversations between Darlene and other persons, including a conversation with her daughter, Pamela Duffy, from only minutes earlier, as well as conversations between Darlene and her attorney. Appellant had not been a party to any of these conversations.

Darlene called her daughter, Pamela, and her son, Steve. Pamela was already on her way to her parents’ home because she had dinner plans with her mother and two other relatives; the others arrived shortly thereafter. Darlene showed them what she had found and played the tape. Steve insisted that they leave the house for a while so he could talk to Appellant. When Darlene returned home later that evening, she found Appellant in the study and confronted him about recording her telephone conversations. When she asked Appellant why he had done it, he told her that he wanted to “see what [she] was up to.” Darlene later turned over the recording device to Mike Vance, an investigator with the Collin County Sheriffs Office.

During cross-examination, Darlene admitted that she had found the recording device and made the wiretapping accusations approximately two weeks before the divorce was scheduled for final hearing. She had previously threatened to expose an illegality committed by Appellant’s company if he did not agree to a continuance in the divorce proceedings. Darlene needed a continuance because she had hired new counsel to represent her. She also acknowledged that Appellant did not have ready access to the detailed long-distance billing statement although he was responsible for paying the telephone bill during this time period.

Pamela Duffy testified about the events of that evening as well as separate conversations she had with her father. When Pamela arrived at the house, her mother appeared extremely excited and upset and showed her what appeared to be a recording device. When Darlene played the tape on the family stereo, Pamela heard a conversation she had had with her mother only minutes before arriving at the house. At one point that evening, the family talked with Appellant. According to Pamela, accusations were made about the recording device and her father, for the most part, remained silent. He did not deny placing the device on the telephone. Appellant later admitted to her that he had placed the device on the telephone, but claimed he did so in order to prove which long-distance telephone calls had been made by Darlene as opposed to those calls made by Pamela to her boyfriend who lived out of state.

Question by the prosecutor: I want you to state why he said he taped the phone. He was explaining to you. Tell us why. We don’t want the whole story.
Answer by Pamela: Okay. He said his reason for doing this was because he was trying to combat or trying to prove that telephone bills, really expensive telephone bills, were — the charges were being made by my mother.
Q: Okay. So if he taped the phone conversations he could show that it was her calling these people and not you calling these people; is that right? A: Right. The intention was that she was — that this was to record outgoing phone numbers, the touch tones, to prove that she was making phone calls.
Q: Basically if it’s not your voice talking — your boy friend live out of state?
A: Not now. At the time he did.
Q: Basically if you tape the phone call, he can determine whether it’s you talking on the phone long distance or if it’s your mom talking on the phone long distance?
A: I believe the intent was the time of day. I’m not sure. I believe the intent was the time of day. I was at school. My procedure, I believe was school or work. My dad was at work; therefore, my mother would have been the only one who could have made those calls.

Pamela had also heard her mother threaten to file charges against Appellant if he did not agree to the continuance in the divorce case.

Mike Vance took the initial report from Darlene and received from her a recording device and tape. Vance said that the device, which bore the label “dialed number recorder” did not appear to be a simple telephone answering machine. It had both a power source plug and a cord with a phone jack connected to it and it contained a microcassette. It appeared to him to have the capability of recording a telephone call.

At the conclusion of the evidence, the trial court expressly rejected Appellant’s defense that he could not be found guilty in the absence of the actual device being introduced into evidence. By finding Appellant guilty, the court impliedly found that Appellant had intentionally recorded the conversations, and therefore, rejected his defense that he intended only to record the numbers dialed.

Appellant testified during the punishment phase. He admitted placing the device on the telephone and admitted that it had the capability of recording calls, but he insisted that he installed the device for the sole purpose of recording the numbers dialed on the outgoing calls. He suggested that Darlene had found the device and changed the settings to record the calls.

SUFFICIENCY OF THE EVIDENCE

In Points of Error Nos. One and Two, respectively, Appellant challenges the legal and factual sufficiency of the evidence to support his conviction. The State responds initially that both contentions are waived because Appellant admitted his guilt during the punishment phase by acknowledging that he placed the recording device on the telephone. Even if the issues are not waived, the State maintains that the evidence is both legally and factually sufficient.

DeGarmo Doctrine

The State’s initial argument refers to the long-standing rule which has come to be known as the DeGarmo doctrine:

[I]f a defendant does not testify at the guilt stage of the trial, but does testify at the punishment stage of the trial, and admits his guilt to the crime for which he has been found guilty, ... [t]he law as it presently exists is clear that such a defendant not only waives a challenge to the sufficiency of the evidence, but he also waives any error that might have occurred during the guilt stage of the trial.

DeGarmo, 691 S.W.2d at 661. Accord McGlothlin v. State, 896 S.W.2d 183, 186 (Tex.Crim.App.1995). However, the Court of Criminal Appeals has essentially abrogated the DeGarmo doctrine in recent years. Reyes v. State, 994 S.W.2d 151 (Tex.Crim.App.1999); Leday v. State, 983 S.W.2d 713 (Tex.Crim.App.1998). Even if it could be said that some aspect of the DeGarmo doctrine somehow survived Le-day, it would not apply here since Appellant did not fully admit his guilt. To the contrary, he consistently denied having the intent to record any of his wife’s telephone conversations or having actually set the recording device so that it would record conversations. We turn now to the sufficiency issues.

Standards of Review

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App.1991). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing ■ all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct evidence and circumstantial evidence cases. Geesa, 820 S.W.2d at 158; Chesnut v. State, 959 S.W.2d 308, 311 (Tex.App.—El Paso 1997, no pet.).

In reviewing factual sufficiency, we consider all of the evidence, but we do not view it in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996); Levarlo v. State, 964 S.W.2d 290, 295 (Tex.App.—El Paso 1997, no pet.). We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129; Levando, 964 S.W.2d at 295. In conducting a factual sufficiency review, the reviewing court cannot substitute its conclusions for those of the fact finder. Levario, 964 S.W.2d at 295. It is not within the province of this Court to interfere with the fact finder’s resolution of conflicts in the evidence or to pass on the weight or credibility of the witness’s testimony. Id. Where there is conflicting evidence, the fact finder’s verdict on such matters is generally regarded as conclusive. Id.

Elements of the Offense

Omitting the formalities, the indictment alleged that Appellant did then and there:

[Intentionally and knowingly intercept and endeavor to intercept a wire, oral and electronic communication of Darlene Duffy by installing, affixing, and directing the installation of an electronic, mechanical, and other device to intercept and endeavor to intercept a wire, oral, and electronic communication....

Appellant was indicted pursuant to Section 16.02(b)(1) of the Texas Penal Code which provides that a person commits an offense if he:

[IJntentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication.

Tex.Pen.Code Ann. § 16.02(b)(l)(Vernon Supp.2000).

A number of the terms used in this statute have the meaning assigned to them by Section 18.20 of the Texas Code of Criminal Procedure. See Tex.Pen.Code Ann. § 16.02(a). The term “intercept” as used in the statute and the indictment means the aural or other acquisition of the contents of a wire, oral, or electronic communication through the use of an electronic, mechanical, or other device. Tex.Code Crim.Proc.Ann. art. 18.20, § l(3)(Vernon Supp.2000). “Oral communication” means an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation. Tex.Code Crim.Proc.Ann. art. 18.20, § 1(2). This term does not include an electronic communication. Id. “Wire communication” means an aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including the use of such a connection in a switching station, furnished or operated by a person authorized to engage in providing or operating the facilities for the transmission of communications as a communications common carrier. TexCode CrimProcAnn. art. 18.20, § 1(1). Finally, “aural transfer” means a transfer containing the human voice at any point between and including the point of origin and the point of reception. Tex.Code Crim.Pro&Ann. art. 18.20, § 1(21).

Analysis

Citing Simpson v. Simpson, a case which concludes that the Federal Wiretapping Statute was not intended to extend into the area of marital conflicts, Appellant argues that Section 16.02 is subject to a similar construction because it is modeled after the federal statute. He reasons that the placing of a device on one’s own telephone, even if the device records the telephone conversations of the person’s spouse, should not be a violation of the statute. Appellant’s argument regarding the legislative intent behind Section 16.02 and alleged inapplicability of the statute to interspousal wiretaps is unpersuasive.

First, this contention is not properly raised in the context of a legal or factual sufficiency challenge because there is no exception to prosecution under Section 16.02 arising from the fact that the person placed a wiretapping device on his own telephone or that he intercepted a spouse’s conversation. See Tex.Pen.Code Ann. § 2.02 (Vernon 1994). Our only task in reviewing evidentiary sufficiency is to examine the evidence adduced at trial under the proper standards of review to determine whether the State has proven the essential elements of the offense beyond a reasonable doubt. If Section 16.02 provided an exception to prosecution as urged by Appellant, then the State would have been obligated to negate it in the indictment and to prove beyond a reasonable doubt that Appellant’s conduct did not fall within the exception. See McElroy v. State, 720 S.W.2d 490, 492 (Tex.Crim.App.1986); Tex.Pen.Code Ann. § 2.02 (Vernon 1994). Appellant then could have challenged the sufficiency of the evidence to support his conviction. However, only those exceptions so labeled must be negated. See Practice Commentary to Section 2.02; Lopez v. State, 846 S.W.2d 90, 94 (Tex.App.— Corpus Christi 1992, pet. ref'd). Section 16.02 does not contain any exception for inter-spousal wiretaps. See Kent v. State, 809 S.W.2d 664, 668 (Tex.App.— Amarillo 1991, pet. ref'd)(declining to apply the Simpson rationale to Section 16.02 because there is no statutory exception for interspousal wiretaps). Accord Collins v. Collins, 904 S.W.2d 792, 797 (Tex.App.— Houston [1st Dist.] 1995, writ denied). Consequently, we are unable to consider his argument in this context.

Even if we could consider an exception not expressly provided by the Legislature, we would not be inclined to do so under the authority cited by Appellant. As noted in Collins, only Simpson and one other federal court of appeals case have held that the Federal Wiretap Statute exempts spouses from its prohibitions and both opinions have been widely criticized. Collins, 904 S.W.2d at 797, citing e.g., Platt v. Platt, 951 F.2d 159, 160 (8th Cir.1989), Heggy v. Heggy, 944 F.2d 1537,1539 (10th Cir.1991), Kempf v. Kempf, 868 F.2d 970, 972-73 (8th Cir.1989), Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir.1984), United States v. Jones, 542 F.2d 661, 667 (6th Cir.1976), Walker v. Carter, 820 F.Supp. 1095, 1097 (C.D.Ill.1993), Nations v. Nations, 670 F.Supp. 1432, 1434-35 (W.D.Ark.1987), Flynn v. Flynn, 560 F.Supp. 922, 924-25 (N.D.Ohio 1983), Heyman v. Heyman, 548 F.Supp. 1041, 1045-47 (N.D.Ill.1982), Gill v. Willier, 482 F.Supp. 776, 778 (W.D.N.Y.1980), Kratz v. Kratz, All F.Supp. 463, 467-72 (E.D.Pa.1979), and Comment, Interspousal Electronic Surveillance Immunity, 1 U. Of Tol.L.Rev. 185, 185-212 (1975); see Turner, 765 S.W.2d at 469-70. See also May v. State, 780 S.W.2d 866, 870 (TexApp.—Dallas 1989, pet. refd). Like Section 16.02, the Federal Wiretap Statute does not contain an exception for wiretaps between spouses. Kempf, 868 F.2d at 973. Further, Simpson’s suggestion that Congress did not intend for the Federal Wiretap Statute to apply to spouses is directly contrary to the statute’s legislative history because Congress actually anticipated that the statute would restrict the use of wiretap evidence in divorce proceedings. Collins, 904 S.W.2d at 797, citing Kempf, 868 F.2d at 973. Senator Long, chair of the subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee, stated that the “three major areas in which private electronic surveillance was widespread were (1) industrial, (2) divorce cases, and (3) politics.” Collins, 904 S.W.2d at 797, quoting Kempf, 868 F.2d at 973. Additionally, Senator Hruska, a co-sponsor of the bill, commenting on the scope of the statute, noted that “[a] broad prohibition is imposed on private use of electronic surveillance, particularly in domestic relations and industrial espionage situations.” Id., quoting S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. <& Admin.News 2112, 2274; Kempf 868 F.2d at 973. For these reasons, we decline to follow Simpson. Further, we agree with Collins ’ holding that the common law and constitutional right of privacy recognized by Texas courts is not limited to unmarried individuals, and therefore, a spouse has a right of privacy under Section 16.02. Collins, 904 S.W.2d at 797. Accordingly, we conclude that Section 16.02 must be applied in all circumstances not specifically excepted. See Kent, 809 S.W.2d at 668.

Reiterating the defenses offered at trial, Appellant additionally argues that the evidence is both legally and factually insufficient to support his conviction because it does not establish that the device found by Darlene is the same device he placed on the telephone, or even if it is, that he set the device to record Darlene’s telephone conversations. Considering first the legal sufficiency of the evidence, the trial court had before it evidence that the device was capable of recording telephone conversations and that Appellant told Darlene that he had placed the device on the telephone for the purpose of finding out what she “was up to.” Taken in the light most favorable to the verdict, this evidence is legally sufficient to support Appellant’s conviction because a rational trier of fact could have concluded beyond a reasonable doubt that Appellant intentionally intercepted a wire or oral communication through the use of the recording device placed on the telephone. Point of Error No. One is overruled.

Regarding the factual sufficiency of the evidence, the trial court had before it substantially conflicting evidence on the question of Appellant’s intent in placing the recording device on the family telephone and whether he set the device to record conversations as opposed to telephone numbers dialed from the family telephone. It was for the trial court to weigh the credibility of Darlene’s and Pamela’s testimony, to assign weight to their testimony on this question, and to draw deductions from all of the evidence. We note that both witnesses were impeached by exposure of their respective biases. Ultimately, the trial court resolved the conflict in favor of a finding of guilt. We are unable to conclude that this finding is so contrary to the evidence as to be manifestly unjust. Accordingly, Point of Error No. Two is overruled.

VALIDITY OF THE INDICTMENT

In his third point of error, Appellant asserts that the trial court lacked jurisdiction because the indictment failed to state an offense. He contends that the indictment improperly authorized conviction based upon an allegation that he “knowingly” intercepted a wire, oral, and electronic communication because Section 16.02 does not allow conviction based upon that lesser mental state. While Appellant is correct that the indictment improperly alleged that he both intentionally and knowingly committed the illegal conduct, the defect regarding the additional mental state does not render the indictment constitutionally void since the indictment accuses Appellant of a crime with enough clarity and sufficiency to identify the penal statute under which the State intended to prosecute. See Duron v. State, 956 S.W.2d 547, 550-51 (Tex.Crim.App.1997)(written instrument is an indictment or information under the Art. V, sec. 12(b) of the Texas Constitution if it accuses someone of a crime with enough clarity and sufficiency to identify the penal statute under which the State intends to prosecute, even if the instrument is otherwise defective). The failure of an indictment to allege any culpable mental state is a defect of substance which the defendant waives if not raised prior to trial. State v. Murk, 815 S.W.2d 556, 557-58 (Tex.Crim.App.1991)(failure of indictment charging defendant with public lewdness to allege culpable mental state was defect of substance, requiring pretrial objection to preserve issue for review); State v. Oliver, 808 S.W.2d 492, 493-94 (Tex.Crim.App.1991)(defendant waived substantive defects in indictments which charged him with possession of more than 400 grams of phenylacetone and less than 28 grams of methamphetamine, but omitted any reference to culpable mental state, when defendant failed to complain of defects prior to trial); Prudhome v. State, 989 S.W.2d 852, 854 (Tex.App.— Houston [14th Dist.] 1999, no pet.)(failure of an indictment to allege a culpable mental substance is a defect of substance which must be raised in the trial court or is waived; defendant waived asserted error by not objecting to indictment on ground that it failed to allege a culpable mental state); see Tex.Code CRim.PROc.Ann. art. 1.14(b)(Vernon Supp.2000)(“If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding.”). If an indictment containing no culpable mental state allegation falls within Article 1.14(b)’s objection requirement, it follows that an indictment which alleges the correct mental state, but erroneously includes an additional mental state not authorized by the statute, also constitutes a defect of substance that must be raised by motion to quash or other objection prior to trial. By failing to object to this defect prior to trial, Appellant waived error. Point of Error No. Three is overruled. Having overruled each of Appellant’s points of error, we affirm the judgment of the trial court.

      . Darlene explained that the house was located on farm or ranch property out "in the country.” The parties had six thoroughbred horses on the premises. It was necessary for Appellant to continue living there during the divorce proceedings to tend to the upkeep and to perform tasks which Darlene was physically unable to do.

      . At some subsequent point in the case, the Collin County District Attorney's Office lost the recording device and the tape.

      . Appellant does not pursue this complaint on appeal.

      . DeGarmo v. State, 691 S.W.2d 657 (Tex. Crim.App.1985).

      . Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974).

      . Simpson construed the Omnibus Crime Control and Safe Street Act of 1968, 18 U.S.C. §§ 2510 et seq., which is sometimes referred to as "The Federal Wiretap Statute.” See Turner v. PV International Corp., 765 S.W.2d 455 (Tex.App. — Dallas 1988), writ denied per curiam, 778 S.W.2d 865 (Tex.1989). The Supreme Court specifically noted that denial of the application for writ of error should not be construed as either approval or disapproval of the court of appeals’ holding regarding admissibility of the tape recorded conversations. Turner, 778 S.W.2d at 866.

      .Furthermore, the argument raised by Appellant does not constitute an affirmative defense to prosecution under Section 16.02. See Tex Pen.Code Ann. § 2.03 (Vernon 1994); TexPen. Code Ann. § 16.02(c)(Vernon Supp.2000). Under a former version of Section 16.02 not applicable here, the statute contained eleven exceptions rather than affirmative defenses. With the 1993 amendment of Section 16.02, those exceptions became affirmative defenses. See Act of May 28, 1989, 71st Leg., R.S., ch. 1166, § 16, 1989 Tex.Gen.Laws 4783, 4791-92, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex.Gen.Laws 3586, 3608-09. See also Hernandez v. State, 938 S.W.2d 503, 506 nn. 3, 4 (Tex.App.— Waco 1997, pet. ref'd).

      . Section 2.02 of the Penal Code provides:
      (a) An exception to an offense in this code is so labeled by the phrase: 'It is an exception to the application of .... ’
      (b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.
      Tex.Pen.Code Ann. § 2.02 (Vernon 1994).

      . Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir. 1977).

      . Appellant emphasizes certain statements by the trial court indicating its belief that a "pen register” is illegal under Section 16.02. However, as Appellant points out, he was not indicted for placing a pen register on his telephone. Regardless of whether the trial court was mistaken in its statements, the only question before us is whether the evidence supports Appellant’s conviction.


text:
    Elvira Horrel WYATT, Appellant, v. Rolando LONGORIA, M.D., Appellee.
    No. 08-99-00174-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 31, 2000.

      J. Morgan Broaddus, III, John Grost, El Paso, for Appellant.

      David S. Jeans, John W. McChristian, Jr., Ray, McChristian & Jeans, P.C., El Paso, for Appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This is a medical malpractice case in which Elvira Horrel Wyatt sued Dr. Rolando Longoria for negligent misdiagnosis. Dr. Longoria moved for summary judgment, contending first that Wyatt’s claims were barred because Texas does not recognize a cause of action for wrongful life, and second, that her economic injuries were not proximately caused by his purported negligence. The trial court granted the motion without specifying the grounds upon which it relied. We affirm in part and reverse in part.

SUMMARY OF THE EVIDENCE

In November 1994, Wyatt traveled to El Paso to visit her granddaughter. At the time, she was 78 years old and a resident of Austin. During the visit, Wyatt became ill and complained of abdominal pains. She consulted Dr. Longoria, a gastroenter-ologist, and was scheduled for an x-ray, CT scans of the abdomen and pelvis, and a mammogram. Following the x-ray and CT scans, Dr. Longoria told Wyatt that she had cancer of the liver and peritoneum. He advised her that the cancers found in her abdomen were the result of metastatic breast cancer, and that she had only three to six months to live. Dr. Lon-goria then canceled the mammogram, believing the diagnosis to be academic.

Relying on Dr. Longoria’s bleak prognosis, Wyatt began preparing for her death. She decided to sell her Austin townhome and move in with her granddaughter so that she could pursue treatment with Dr. Longoria. She gifted her personal possessions to relatives and friends, including several valuable oil paintings, a valuable porcelain collection, and her home furnishings. Finally, Wyatt made funeral arrangements and had her dog put to sleep.

The course of treatment pursued by Dr. Longoria involved paracentesis, a process designed to relieve the build-up of fluids in Wyatt’s abdomen. The procedure is performed by puncturing the abdomen wall with a needle, and drawing out the excess fluid. On a number of occasions, Wyatt had multiple liters withdrawn from her abdomen. She began to lose weight and became very weak. This course of treatment continued until August 1995 when Dr. Longoria ordered a biopsy which revealed that Wyatt had lymphoma, not breast cancer. She discontinued treatment with Dr. Longoria, and went to the University of Arizona Cancer Center, where she received chemotherapy and occasional paracentesis. In December 1995, she returned to El Paso for a continuation of treatments.

In November 1996, Wyatt brought suit against Dr. Longoria for medical malpractice, complaining that Dr. Longoria negligently misdiagnosed her cancer as terminal. She alleged that he breached the standard of care owed to her by failing to fully evaluate her, to provide her with the proper course of treatment, and to refer her to a competent specialist. She claimed that this breach of duty caused her to suffer severe emotional anguish, physical pain, and medical expenses. Pursuant to the Texas Medical Liability and Insurance Act, Wyatt timely filed an expert medical report. See Tex.Rev.Civ.Stat.ANn. art. 4590i, § 13.01 (Vernon Supp.2000). She tendered the opinion of Dr. Ira Klein that Longoria had breached the standard of care of a practicing gastroenterologist by continuing to treat Wyatt without obtaining “a definitive pathological diagnosis.” Dr. Klein concluded that Dr. Longoria was negligent in failing to obtain tissue biopsies and in failing to refer Wyatt to an oncologist. In addition to her damages for physical pain, emotional anguish, and medical expenses, Wyatt also complained that the misdiagnosis caused her to incur certain economic losses arising from property dispositions she had made while believing that her death was imminent.

WRONGFUL LIFE?

When the trial court grants summary judgment without specifying its reasons, the judgment will be affirmed if any of the theories advanced in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Doe v. Franklin, 930 S.W.2d 921, 924 (Tex.App.—El Paso 1996, no writ). First, we review the theory that Wyatt’s claim is barred because Texas does not recognize a cause of action for wrongful life. Wyatt contends that special exceptions, not summary judgment, are the proper vehicle for complaining that no cause of action has been alleged. Summary judgment should not be based on a pleading deficiency that might be cured by amendment. Saenz v. Southern Union Gas Co., 916 S.W.2d 703, 705 (Tex.App.— El Paso 1996, writ denied); Friesenhahn v. Ryan, 960 S.W.2d 656, 658-59 (Tex. 1998); In the Interest of B.I.V., 870 S.W.2d 12, 13 (Tex.1994); Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983); Texas Department of Corrections v. Hemng, 513 S.W.2d 6, 9 (Tex.1974). Whether pleadings fail to state a cause of action may not be resolved by summary judgment. Massey, 652 S.W.2d at 934. Special exceptions are the appropriate method for claiming that plaintiff has failed to state a cause of action, because plaintiffs must have an opportunity to cure a deficient petition by amendment before their lawsuit is dismissed for failing to state an actionable claim. B.I.V., 870 S.W.2d at 13.

Dr. Longoria counters that it was not necessary to comply with special exception procedure because Wyatt’s petition alleges facts which affirmatively negate her cause of action. Herring, 513 S.W.2d at 9; Cortez v. Liberty Mutual Fire Insurance Company, 885 S.W.2d 466 (Tex.App.—El Paso 1994, writ denied). In support of his argument, he directs us to Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984), in which the Supreme Court considered whether a plaintiff could bring a malpractice action when the crux of the complaint was that but for the defendant’s negligence, the plaintiff would not have been born. Nelson, 678 S.W.2d at 924. The Court refused to recognize a cause of action for wrongful life because of the “high value which the law and mankind has placed on human life, rather than its absence” and because the calculation of damages involves a rationally impossible task of weighing life against non-life. Id. The Court noted that it had no objective standard by which to review the plaintiffs assertion that it would be better to not have been born. “Man, who knows nothing of death or nothingless, cannot possibly know whether this is so.” Id.

Wyatt’s petition does not allege that she has been injured because she has continued to live beyond the short “three to six month” period which Dr. Longoria predicted. Instead, she claims that Dr. Longoria was negligent and that his negligence caused her to suffer emotional anguish and physical pain, and to incur medical expenses. If she can establish that these injuries were caused by Dr. Longoria’s negligence, then she is entitled to recover under a malpractice theory. See Tex.Rev. Civ.Stat.Ann. art. 4590i, § 1.03(4); Sullivan v. Methodist Hospitals of Dallas, 699 S.W.2d 265, 274 (Tex.App. — Corpus Christi 1985, writ refd n.r.e.). We conclude that the petition states a cause of action for medical malpractice, not wrongful life. Wyatt’s first and second issues are sustained.

PROXIMATE CAUSE

We now consider the theory that Wyatt’s economic injuries were not proximately caused by Dr. Longoria’s misdiagnosis. Wyatt contends that the misdiagnosis caused her to make ill-advised property dispositions and that Dr. Longoria should be liable for her resulting economic losses. Dr. Longoria moved for both a traditional and a no-evidence summary judgment. See Tex.R.Civ.P. 166a(c) and (i). We turn now to the applicable standards of review.

Standards of Review

In a traditional summary judgment proceeding, the standard of review on appeal is whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex.1985); Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App. — El Paso 1996, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant’s cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant’s cause or claim. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Duran, 921 S.W.2d at 784. In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-mov-ant’s favor. Nixon, 690 S.W.2d at 548-49; Duran, 921 S.W.2d at 784; Borrego v. City of El Paso, 964 S.W.2d 954, 956-57 (Tex.App.—El Paso 1998, pet. denied). When the defendant is the movant and submits summary evidence disproving at least one essential element of each of the plaintiffs causes of action, then summary judgment should be granted. Perez, 819 S.W.2d at 471; Duran, 921 S.W.2d at 784; Borrego, 964 S.W.2d at 956-57.

A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.—San Antonio 1998, rev. den.); Robinson v. Warner-Lambert & Old Comer Drug, 998 S.W.2d 407, 410 (Tex.App. — Waco 1999, no pet. h.); see also S.V. v. R.V., 933 S.W.2d 1, 8 (Tex.1996). We review the evidence in the light most favorable to the respondent against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharmaceuticals, Inc. v. Hamer, 953 S.W.2d 706, 711 (Tex.1997); Moore, 981 S.W.2d at 269; Robinson, 998 S.W.2d at 410. A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact. Ruiz v. Government Employees Ins. Co., 4 S.W.3d 838, 840 (Tex.App.-El Paso 1999, no pet.), citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Havner, 953 S.W.2d at 711.

Elements of Medical Malpractice

In a medical malpractice cause of action, the plaintiff must prove by competent testimony that the defendant’s negligence proximately caused her injury. Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988); Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex.1977); Lenger v. Physician’s General Hospital, Inc., 455 S.W.2d 703, 706 (Tex.1970); Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965). To do so, the plaintiff must establish four elements: (1) a duty by the physician to act according to a certain standard; (2) a breach of the applicable standard of care; (3) an injury; and (4) a causal connection between the breach of care and the injury. Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 217 (Tex.App.—Houston [1st Dist.] 1986, no writ); King v. Ramirez, 830 S.W.2d 801, 804 (Tex.App.—Corpus Christi 1992, no writ). Dr. Longoria has chosen to attack only the proximate causation of Wyatt’s property dispositions.

Cause in Fact

The components of proximate cause are cause in fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). These elements cannot be established by mere conjecture, guess, or speculation. McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex.1980); Farley v. MM Cattle Co., 529 S.W.2d 751, 755 (Tex.1975). The test is whether the negligent act or omission was a substantial factor in bringing about injury, without which the harm would not have occurred. Doe, 907 S.W.2d at 477. Cause in fact is not shown if the defendant’s negligence did no more than furnish a condition which made the injury possible. See Bell v. Campbell, 434 S.W.2d 117, 120 (Tex.1968). Whether a particular act of negligence is a cause in fact of an injury has been said to be a particularly apt question for jury determination. Farley, 529 S.W.2d at 756.

We conclude that Wyatt has raised a fact issue as to whether Dr. Longoria’s diagnosis was a cause in fact of her economic losses. The uncontroverted evidence establishes that Dr. Longoria diagnosed Wyatt with metastatic breast cancer when in fact she had lymphoma. Dr. Klein opined that Dr. Longoria’s failure to obtain tissue biopsies and his failure to refer Wyatt to an oncologist breached the standard of care for a gastroenterologist. Wyatt believed that she needed to dispose of her assets due to Dr. Longoria’s misdiagnosis and his prognosis of short-term survival. This was a substantial factor in bringing about the injury which would not otherwise have occurred.

Foreseeability

Foreseeability requires a court to determine a question of legal policy— whether the defendant should be responsible for the plaintiffs injuries. See City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex.1987)(holding that proximate cause eventually mandates weighing of policy considerations); Doe, 907 S.W.2d at 478; see also, W. Page Keeton et al., PROSSER and Keeton on the Law of Torts § 42 (5th Ed.1984). The issue of foreseeability only arises “[o]nce it is established that the defendant’s conduct has in fact been one of the causes of the plaintiffs injury.” See W. Page Keeton et al., PROSSER and Keeton on the Law of Torts § 42 at 272-73 (5th Ed.1984). The inclusion of the foreseeability element in proximate causation analysis represents judicial recognition that “[a]t some point in the causal chain, the defendant’s conduct or product may be too remotely connected with the plaintiffs injury to constitute legal causation.” Union Pump Company v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995). As the Supreme Court has observed:

In this state it is now a settled doctrine that anticipation of consequences is a necessary element in determining not only whether a particular act or omission is actionably negligent, but also whether the injury complained of is proximately caused by such act or omission. This doctrine is the result of an effort by the courts to avoid as far as possible the metaphysical and philosophical niceties in the age-old discussion of causation, and to lay down a rule of general application which will, as nearly as may be done by a general rule, apply a practical test, the test of common experience, to human conduct when determining legal rights and legal liability. Actual anticipation is of course not in any sense the test; but what one should under the circumstances reasonably anticipate as consequences of his conduct [internal citations omitted].

Because the facts are undisputed, the issue before us is solely one of policy. Wyatt argues that Dr. Longoria should be legally responsible for her decisions to sell her home and give away her personal property to friends and relatives. She contends that responsibility flows from the fact that Dr. Longoria misdiagnosed her particular form of cancer and caused her to believe that her death was imminent. She justifies imposing liability because it is plainly foreseeable that a patient will prepare for death when told that she has a terminal illness and only a short time to live. We disagree.

See Houston Lighting & Power Co. v. Brooks, 161 Tex. 32, 336 S.W.2d 603, 606-07 (1960), quoting Dallas v. Maxwell, 248 S.W. 667, 670, 27 A.L.R. 927 (Tex.Com. App. opinion, approved by Supreme Court); see also, Allbritton, 898 S.W.2d at 775 (commenting that the law does not hold one legally responsible for the remote results of his wrongful acts and therefore a line must be drawn between immediate and remote causes).

Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Doe, 907 S.W.2d at 478; Nixon, 690 S.W.2d at 549-50. The danger of injury is foreseeable if its general character might reasonably have been anticipated. Doe, 907 S.W.2d at 478; Nixon, 690 S.W.2d at 551. The question of foreseeability involves a practical inquiry based on “common experience applied to human conduct.” City of Gladewater, 727 S.W.2d at 518. It asks whether the injury “might reasonably have been contemplated” as a result of the defendant’s conduct. McClure, 608 S.W.2d at 903. Foreseeability requires more than someone, viewing the facts in retrospect, theorizing an extraordinary sequence of events whereby the defendant’s conduct brings about the injury. See Restatement (Second) of Torts § 435(2)(1965).

First, we observe that Wyatt’s economic injuries do not directly or immediately flow from the acts and omissions which comprise the negligent misdiagnosis. Rather, the property dispositions flow from some of the more remote consequences of the misdiagnosis — Wyatt’s belief in her impending death and her decision to plan for her death by disposing of her assets. This fact is significant because existing precedent recognizes that a physician’s liability extends only to physical injuries which directly relate to the misdiag- nosis. See, e.g., Glenn v. Prestegord, 456 S.W.2d 901, 902 (Tex.1970)(holding that there was no proximate cause where evidence failed to establish that patient’s injury was caused by the physician’s failure to pursue further evaluation of abdominal pain); Lloyd v. Ray, 606 S.W.2d 545, 547 (Tex.Civ.App. — San Antonio 1980, writ ref d n.r.e.)(reversing summary judgment where evidence showed defendant physician failed to discover intrauterine device in abdomen which caused medical expenses and pain and suffering); Sullivan v. Methodist Hospitals of Dallas, 699 S.W.2d 265, 274 (Tex.App. — Corpus Christi 1985, writ ref'd n.r.e.)(concluding that plaintiff had presented some evidence of mental anguish and physical suffering resulting from physician’s failure to properly diagnose and inform her of presence of a sponge in her abdomen); Rose v. Friddell, 423 S.W.2d 658, 664 (Tex.Civ.App.—Tyler 1968, writ ref'd n.r.e.)(reversing directed verdict where evidence raised fact question as to whether physician negligently caused loss of circulation and cont-racture of patient’s arm).

The foreseeable risk of harm created by a negligent misdiagnosis is that the plaintiff may sustain bodily injury. See Speer v. United States, 512 F.Supp. 670, 675 (N.D.Tex.1981)(holding that faulty diagnosis can form no basis for cause of action for medical malpractice because in and of itself it results in no damage; only when it leads to injurious delay in receiving proper treatment or leads to the administering of improper treatment that causes injury can a negligent diagnosis form the grounds for relief), affirmed, 675 F.2d 100 (5th Cir.1982). Under existing precedent, Dr. Longoria would be liable for Wyatt’s physical pain and suffering, and her mental anguish, if such injuries are proved to be the proximate result of his misdiagnosis. But the harm she complains of here is not the direct or immediate result from a physical injury sustained through an erroneous course of treatment or through the failure to treat at all. In short, her economic injuries are not within the type of harm which Dr. Longoria reasonably should have anticipated. Nor are we persuaded by Wyatt’s argument that anyone would foresee that a patient would begin making plans for her demise after being informed that she has a terminal illness. The possible responses to a diagnosis of terminal illness are as varied as the patients who receive them. Dr. Longoria is not a financial planner or an estate planner. He has no control over how his patients choose to confront a life-threatening illness or how they decide to dispose of their property in anticipation of death.

In apportioning responsibility, we believe that the party who had superior knowledge of the risk involved in making the property dispositions and the power to control the probability of injury should be liable for the resulting harm. See Graff v. Beard, 858 S.W.2d 918, 920 (Tex.1993)(holding that party with superior knowledge or power to control the risk should bear responsibility for resulting harm). No matter how optimistic we may be about the powers of modern science to diagnose and treat illness, predictions of life and death lack scientific certainty. With any diagnosis of terminal illness, there exists the possibility that death will not occur when and by the same means as predicted by a physician. Those diagnosed with a terminal illness must bear the responsibility of not only planning for their death, but also planning for the possibility of continued life.

Because Wyatt’s property dispositions were not injuries which Dr. Longoria reasonably should have anticipated as a result of his alleged misdiagnosis, we perceive no genuine issue of material fact as to causation. Wyatt’s third issue is overruled.

CONCLUSION

We affirm the summary judgment as to Wyatt’s economic losses predicated on her premature property dispositions. We reverse as to whether Dr. Longoria’s alleged negligence caused Wyatt to suffer personal injuries and we remand to the trial court for proceedings consistent with this opinion.

      . The Court distinguished an action for negligence which causes life from an action for negligence which causes injury or impairment to a child, noting that "there is no allegation that but for the defendant’s negligence the child would have had a healthy, unimpaired life. Instead, the claim is that without the doctor’s negligence the plaintiff never would have been born.” Nelson, 678 S.W.2d at 925.

      . Prosser and Keeton's discussion of proximate cause includes this summary concerning the relationship between causation and legal responsibility:
      In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would ‘set society on edge and fill the courts with endless litigation.’ As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy.
      W. Page Keeton et al„ Prosser and Keeton on the Law of Torts § 42 at 264 (5th Ed. 1984).