the City of Houston v. Calvin Atkins, Leonard Walker, and Metropolitan Transit Authority

Reversed and Rendered and Memorandum Opinion filed May 5, 2011. In The Fourteenth Court of Appeals ___________________ NO. 14-10-01265-CV ___________________ City of Houston, Appellant V. Calvin Atkins, Leonard Walker, and METROPOLITAN TRANSIT AUTHORITY, Appellees On Appeal from the 113th District Court Harris County, Texas Trial Court Cause No. 2009-82121 MEMORANDUM OPINION In this interlocutory appeal, the City of Houston (the City) challenges the trial court’s denial of its plea to the jurisdiction. Concluding the trial court erred when it denied the City’s plea to the jurisdiction, we reverse the trial court’s order and render judgment dismissing the claims brought by plaintiffs Calvin Atkins and Leonard Walker (Atkins and Walker) and by defendant and third-party plaintiff Metropolitan Transit Authority (Metro) against the City. Background On June 4, 2009, a Metro bus was involved in a single vehicle accident when the driver allegedly took evasive action to avoid hitting an exposed and broken metal drainage grate that was protruding into her lane of traffic. Atkins and Walker, who were passengers on the bus, claim to have been injured in the accident. On December 31, 2009, Atkins and Walker sued the driver for negligence and sued Metro under theories of respondeat superior and negligent entrustment.[1] On February 8, 2010, Metro answered, claiming, among other defenses, negligence of an unnamed third party. On February 9, 2010, Metro filed (1) a petition to designate a responsible third party and (2) a third-party petition. Metro alleged the City’s negligence was the proximate cause of the accident. The City answered, alleging, in part, that the plaintiffs and Metro had not filed verified notice within ninety days of the accident, as required by the City Charter. On October 28, 2010, the plaintiffs filed a first amended petition, adding the City as defendant and claiming it negligently failed to maintain the drainage grate. The City filed a plea to the jurisdiction and motion to dismiss. It alleged it first received notice of a claim for damages by any party when it was served with Metro’s third party petition on February 15, 2010. It further alleged it first received notice of Atkins and Walker’s claims on October 26, 2010, when it received a facsimile copy of their first amended petition. Metro responded, stating, “Although METRO never sent the City written notice of the alleged claims within the jurisdictional 180 days of the incident, the City had actual notice of the incident.” In support, Metro attached the affidavit of Metro Investigating Supervisor, Son Nguyen, who went to the scene of the accident immediately after it occurred. Nguyen “recall[ed] one or more persons from the City of Houston Public Works Department being present at the scene while the Emergency Medical Services (EMS) unit was present.” Attached to the affidavit were photographs of the scene showing the Metro bus and the EMS and Public Works vehicles. Atkins and Walker also relied on the City’s having actual notice of the claim. In support, Atkins and Walker provided Nguyen’s affidavit, as well as the following: (1) a transcription of an interview with Lucio Leal, Jr., an off-duty police officer, who witnessed (a) the accident, (b) two pre-accident incidents that day when “the City” reset the grate cover, and (c) the City’s returning “when the bus was still here and then they covered [the grate] up”; (2) a survey request summary indicating a resetting of a metro grate was completed by 2:47 pm on the date of, and at the location of, the accident; and (3) a “Texas Peace Officer’s Crash Report” completed by a Metro investigator and listing Atkins, but not Walker, as an occupant of the bus. After hearing argument, the trial court denied the City’s plea to the jurisdiction and motion to dismiss. Analysis In a single issue, the City argues the trial court erred in denying its plea to the jurisdiction and motion to dismiss. We review a trial court’s ruling on a plea to the jurisdiction de novo. City of Pasadena v. Belle, 297 S.W.3d 525, 528 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004)). In a plea to the jurisdiction, a defendant may challenge either the plaintiffs’ pleadings or the existence of jurisdictional facts. Id. When a defendant challenges the existence of jurisdictional facts, we must consider the relevant evidence submitted by the parties. Id. If the evidence raises a fact issue regarding jurisdiction, the trial court must deny the defendant’s plea because the trier of fact must resolve the issue. Id. If, however, the relevant evidence is undisputed or fails to present a jurisdictional fact issue, the trial court should grant the plea as a matter of law. Id. In reviewing the evidence, we are required to assume the truth of all evidence that favors the nonmovant. Id. Texas Civil Practice and Remedies Code section 101.101 provides: (a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe: (1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident. (b) A city’s charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and approved. (c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has been damaged. Tex. Civ. Prac. & Rem. Code § 101.101. These notice provisions are jurisdictional. Tex. Gov’t Code § 311.034; see Colquitt v. Brazoria County, 324 S.W.3d 539, 542–43 (Tex. 2010) (per curiam). Notice is a condition for a governmental unit’s waiver of immunity from suit under the Texas Tort Claims Act. Colquitt, 324 S.W.3d at 543. In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the trial court’s jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). As in the trial court, Atkins, Walker, and Metro do not argue they provided notice under section 101.101 subsections (a) or (b). Instead, they argue the City had actual notice under subsection (c). A governmental entity has actual notice when it has “‘knowledge of (1) a death or injury; (2) its alleged fault producing or contributing to the death or injury; and (3) the identity of the parties involved.’” City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per curiam) (quoting Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam)). In this court, the City focuses most of its argument on the second requirement, contending it did not have knowledge of its alleged fault. Nevertheless, the City also argues it had no knowledge of the identity of the parties involved, as necessitated by the third requirement. As set forth above, Atkins, Walker, and Metro rely on four documents to establish the City’s actual notice.[2] Of these, the only document identifying any of the individual plaintiffs is Metro’s Crash Report, and it lists only Atkins. Furthermore, the record contains no evidence on the question of whether the City received the report, or if so, when.[3] To conclude the City had actual knowledge of its alleged fault in causing Atkins’s injury, one must cobble together information from the Metro Crash Report (identifying Atkins as an involved party injured in the accident) with information from Nguyen and Leal that Public Works employees were attending to the grate at the scene immediately after the accident (thus leading to an inference the City knew its grate was a cause of the accident) and that an EMS unit was present (thus leading to an inference the City knew that someone may have been injured in the accident). Even this cobbling does not get the plaintiffs to an inference the City had actual notice its grate was a cause of Atkins’s or Walker’s injuries.[4] The present case is therefore unlike those in which appellate courts concluded the government agency had actual notice when the same government employees had knowledge of the cause of the accident, the nature of the injury, and the identity of the injured party. See, e.g., Parsons v. Dallas County, 197 S.W.3d 915, 919 (Tex. App.—Dallas 2006, no pet.) (holding the fact that county jail facility employees made arrangements to have ambulance take inmate to hospital after fall caused by leaning against unanchored steel table top “indicate[s] the employees had immediate actual notice of the original incident, of [inmate’s] injuries; and the unanchored table’s role in the injuries provided the County with subjective awareness of its fault”); State v. Williams, 932 S.W.2d 546, 554 (Tex. App.—Tyler 1995) (holding evidence legally and factually sufficient to support jury’s finding highway department had actual notice when it was undisputed that (a) highway department was conducting “potholing” operation just south of accident site, (b) highway department personnel witnessed driver’s accident, (c) highway department personnel were first to arrive at the scene after accident and render aid, and (d) highway department personnel took driver to hospital after accident), writ denied, 940 S.W.2d 583 (Tex. 1996) (per curiam). Although the City—by virtue of the presence of its Public Works employees at the scene after the accident and while the Metro bus was still there—arguably may have had knowledge of Metro’s identity as an involved party, there is nothing in the record to indicate the Public Works employees identified any injury to Metro’s property at that time. To the contrary, Metro’s third-party claim against the City derives solely from Atkins and Watkins’s claims of damage against Metro. For the preceding reasons, we conclude the evidence fails to present a jurisdictional fact issue regarding actual notice, and the trial court should have granted the City’s plea to the jurisdiction as a matter of law. Accordingly, we sustain the City’s sole issue. Conclusion Having sustained the City’s sole issue, we reverse the trial court’s order and render judgment dismissing the claims brought against the City by Atkins, Walker, and Metro. /s/ Martha Hill Jamison Justice Panel consists of Justices Frost, Jamison, and McCally. [1] On Metro’s motion to dismiss for lack of jurisdiction, the court subsequently dismissed the plaintiffs’ claim against the driver and their claim of negligent entrustment against Metro. [2] These documents were attached to Atkins and Walker’s and Metro’s responses to the City’s plea to the jurisdiction. Nguyen’s affidavit was the only sworn document. We conclude the documents do not raise a fact issue on the question of actual notice. [3] On appeal, the plaintiffs state that the number 081231509-G, which appears on the report, is a City case number. We find no evidence in the appellate record to this effect. [4] Neither Atkins and Walker nor Metro argue that off-duty Officer Leal’s knowledge should be imputed to the City. Cf. City of Houston v. Daniels, 66 S.W.3d 420, 424 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (“Notice can be imputed to the City by an agent or representative who has a duty to gather facts and investigate.”). Even Leal’s statements, however, do not link the grate to Atkins and Walker’s injuries. Rather, he stated, “Apparently a couple of the folks inside the bus claimed that they were injured I guess . . . . I don't know. I wasn’t in the bus.”