IN THE SUPREME COURT OF TEXAS

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No. 07-0783

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Irving W. Marks, Petitioner,

v.

St. Luke’s Episcopal Hospital, Respondent

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On Petition for Review from the

Court of Appeals for the First District of Texas

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Argued September 11, 2008

Chief Justice Jefferson, concurring.

In Diversicare, a case involving a sexual assault of one nursing home patient by another, I argued that the MLIIA’s broad “safety” definition encompassed what would otherwise be ordinary premises liability claims against health care providers. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 859-61 (Tex. 2005) (Jefferson, C.J., concurring and dissenting). The Court, however, disagreed, noting that “[t]here may be circumstances that give rise to premises liability claims in a healthcare setting that may not be properly classified as health care liability claims.” Id. at 854. The Court described the plaintiff’s claims in that case as “implicat[ing] more than inadequate security or negligent maintenance,” unlike claims involving “an unlocked window that gave an intruder access to the facility or a rickety staircase that gave way under her weight.” Id.

The loose footboard here is indistinguishable from the rickety staircase referred to in Diversicare. Under Diversicare, Marks’s claim is a “premises liability claim[] in a healthcare setting that may not be properly classified as [a] health care liability claim[].” Id. Accordingly, I join the Court’s opinion and concur in its judgment.

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Wallace B. Jefferson

Chief Justice

Opinion Delivered: August 28, 2009