Opinion
01-23-00853-CV
07-02-2024
CITY OF HOUSTON, Appellant v. JESSICA ZUNIGA, Appellee
On Appeal from the 151st District Court Harris County, Texas Trial Court Case No. 2021-40106
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
MEMORANDUM OPINION
Gordon Goodman Justice
Jessica Zuniga sued the City of Houston for injuries she sustained in a car accident with a City vehicle. The City argues on appeal that Zuniga did not establish the City had notice of her claim, which is a jurisdictional bar to suit. The trial court denied the City's plea to the jurisdiction and motion for summary judgment, and we affirm.
BACKGROUND
One day while Zuniga was driving, her car collided with an ambulance driven by a Houston Fire Department employee, Kevan Desai. The parties dispute the cause of the collision.
The Houston Police Department officer who investigated the collision wrote in the Texas Peace Officer's Crash Report: "Unable to determine fault due to conflicting statements." The report stated:
Ms. Zuniga stated that she was traveling . . . in the middle lane, and the other vehicle ran the red light. She stated the other driver initially told her that he did not, but then later told her that he may have ran [sic] the red light.
The report also stated:
Mr. Desai stated he was driving . . . in the far left lane, and was struck by the other vehicle. He stated he had a green light.
Zuniga sued the City for negligence. The City filed a plea to the jurisdiction and motion for summary judgment, claiming Zuniga failed to provide the statutorily required notice of her claim against the City, which deprived the trial court of jurisdiction. The trial court denied the City's plea and motion, and the City now appeals.
DISCUSSION
Standard of Review
A plaintiff has the burden to allege facts affirmatively demonstrating the trial court's jurisdiction, including to establish a waiver of governmental immunity in suits against a governmental unit. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Governmental immunity implicates a trial court's jurisdiction, and a governmental unit may assert its immunity in a plea to the jurisdiction or other procedural vehicle. See Swanson, 590 S.W.3d at 550; Harris County v. Annab, 547 S.W.3d 609, 612 (Tex. 2018); Miranda, 133 S.W.3d at 225-26.
If a plea to the jurisdiction challenges the existence of jurisdictional facts and includes evidence, the trial court reviews the evidence to determine if a fact issue exists. Miranda, 133 S.W.3d at 227. This standard mirrors that of a traditional summary judgment. Id. at 228. If the evidence creates a fact question regarding the jurisdictional issue, the factfinder must resolve that issue and the trial court cannot grant the plea to the jurisdiction. Id. at 227-28. If the evidence is undisputed or fails to raise a fact question, then the trial court rules on the plea as a matter of law. Id. at 228.
Whether a trial court has subject-matter jurisdiction is a question of law, which we review de novo. Id. at 226. In determining whether a plaintiff has met her burden to demonstrate the trial court's jurisdiction, we take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff's favor. Id. at 228.
Applicable Law
Governmental units like the City of Houston are immune from suit and liability unless the legislature clearly and unambiguously waives immunity. City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022); Dohlen v. City of San Antonio, 643 S.W.3d 387, 392 (Tex. 2022).
The Texas Tort Claims Act, or TTCA, waives immunity for certain negligence claims against a governmental unit if the plaintiff gives the statutorily required notice. See Tex. Civ. Prac. & Rem. Code §§ 101.021 (waiving liability for certain damages caused by governmental negligence), 101.101 (requiring notice); see also City of San Antonio v. Tenorio, 543 S.W.3d 772, 775 (Tex. 2018) (explaining that TTCA waives immunity if plaintiff gives required notice). A notice provision like that in the TTCA is a jurisdictional requirement in a suit against a governmental unit. See Tex. Gov't Code § 311.034.
A plaintiff must give a governmental unit formal notice of her claim under the TTCA no later than six months after the date of the incident giving rise to the claim. Tex. Civ. Prac. & Rem. Code § 101.101(a). "The notice must reasonably describe: (1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident." Id. A city may require notice within a different time period. See id. § 101.101(b). The City of Houston's charter requires a claimant to give the City notice in writing within 90 days of the date the claimant's damages or injury occurred. City of Houston Charter, art. IX, § 11.
However, a plaintiff need not comply with these formal notice requirements if the governmental unit has "actual notice" of the damages or injury. Tex. Civ. Prac. & Rem. Code § 101.101(c); Tenorio, 543 S.W.3d at 776. To have actual notice, a governmental unit must have the same knowledge it is entitled to receive under the formal notice requirements of the TTCA. Tenorio, 543 S.W.3d at 776. Thus, to have actual notice, a governmental unit must have "subjective knowledge" of: "(1) a death, injury, or property damage; (2) the governmental unit's fault that produced or contributed to the death, injury, or property damage; and (3) the identity of the parties involved." Id. Notably, the governmental unit must have "subjective awareness" of its fault in producing or contributing to the claimed injuries, as ultimately alleged by the plaintiff. Id. Actual notice may be imputed to the governmental unit by an agent or representative who has a duty to gather facts and investigate. City of Houston v. Daniels, 66 S.W.3d 420, 424 (Tex. App.-Houston [14th Dist] 2001, no pet).
Actual notice of the claim requires more than the knowledge that a death, injury, or property damage occurred. Tenorio, 543 S.W.3d at 776. Similarly, a governmental unit does not have actual notice just because it should have investigated an accident as a prudent person would have, did investigate as part of routine safety procedures, or should have known from the investigation that it might be at fault. Id.
Analysis
The City's sole issue on appeal is whether the trial court erred in denying its plea to the jurisdiction and summary-judgment motion because the City lacked notice of Zuniga's claim. The parties agree that Zuniga did not provide formal notice. Thus, the question is whether the City had actual notice of her claim. The only element of actual notice the City challenges is its subjective awareness of fault. See id.
To prove or disprove the City's subjective awareness of its fault, the parties both rely on (1) the Texas Peace Officer's Crash Report; and (2) the fire department's investigatory reports.
1. Crash Report
The City argues the crash report does not establish the City's subjective awareness of its fault because the report does not attribute fault to the City. A police report that does not expressly state or even imply a governmental unit's fault does not establish subjective awareness of fault. See City of Dallas v. Carbajal, 324 S.W.3d 537, 539 (Tex. 2010) (per curiam).
However, even a crash report that does not attribute fault to the governmental unit, or that attributes fault to the plaintiff, can establish actual notice so long as there is evidence from which the governmental unit can anticipate an alleged claim. City of Houston v. Bustamante, No. 01-22-00699-CV, 2023 WL 5110982, at *8 (Tex. App.-Houston [1st Dist.] Aug. 10, 2023, no pet.) (mem. op.); see also Worsdale v. City of Killeen, 578 S.W.3d 57, 68 (Tex. 2019) (explaining that in determining subjective awareness of fault, "[t]he critical inquiry is the governmental unit's actual anticipation of an alleged claim").
In City of Houston v. Bustamante, a Houston Fire Department ambulance driver was responding to an emergency call when he drove through an intersection against a red light. 2023 WL 5110982, at *1, *6. The ambulance struck Bustamante's car. Id. at *1. Although Bustamante had a green light, the Texas Peace Officer's Crash Report attributed fault to her for failing to yield to an emergency vehicle. Id. Bustamante told the investigating officer that the ambulance did not have its lights on and refused to sign the citation, claiming the accident was the ambulance's fault. Id. at *6. Two other witnesses provided statements that the ambulance was speeding and did not have its lights or sirens on before the collision. Id. at *8. When Bustamante later sued the City for negligence, this court concluded there was a fact issue as to whether the City had actual notice of Bustamante's claim because there was at least some evidence to put the City on notice on the day of the collision that Bustamante would allege the City was at fault for the accident. Id. at *7-8.
Similarly, in this case, Zuniga told the investigating officer that the collision was Desai's fault because he ran the red light. She said that Desai initially told her he did not run the red light but later admitted that he may have. Partly because of Zuniga's statement and partly because Desai told the officer he had a green light, the crash report does not attribute fault to either party. However, as in Bustamante, based on Zuniga's statement to the HPD officer, there is a fact question as to whether the City had notice on the day of the collision that Zuniga would allege the City was at fault for the accident. See id. at *7-8. Therefore, the police report at least implies the City was at fault for the accident. See Daniels, 66 S.W.3d at 424 (concluding plaintiff raised fact issue regarding actual notice with police report that did not attribute fault for car accident to police officer but noted that police officer was speeding at time of car accident); cf. Carbajal, 324 S.W.3d at 539 (concluding that police report noting driver crashed because of missing barricades, without expressing who failed to erect or maintain barricades, "did not provide the City with subjective awareness of fault because it did not even imply, let alone expressly state, that the City was at fault").
The City argues Zuniga's statement in the police report is hearsay within hearsay and cannot establish subjective knowledge of fault, but, at this stage, Zuniga's statement is not hearsay because it is not offered for the truth of the matter asserted-that Desai ran the red light. See Tex. R. Evid. 801(d) (defining "hearsay" as statement offered to prove truth of matter asserted in statement). Her statement is offered as proof the City knew she could ultimately claim the City was responsible for the accident. See Tenorio, 543 S.W.3d at 776 (stating that to have actual notice, governmental unit must have subjective awareness of its fault as ultimately alleged by plaintiff). Her statement in the police report does just that and raises a fact issue as to whether the City had subjective awareness of its fault.
2. Fire Department's Reports
The City also argues it did not have subjective awareness of its fault because its own investigatory reports did not show its subjective awareness. The City relies on the accident reports created by the fire department.
The fire department's Accident Review Board concluded the collision was a "Non-Preventable Accident," and the board took no further action in the case. Both the fire department's "Drivers Accident Report" and "Supervisor's Report of a Vehicular Accident" stated Desai had the right of way because he had a green light. The City argues these reports show the City did not have subjective awareness of its fault.
But "[t]he actual-notice standard does not require proof that the [City] believed it was liable." Reyes v. Jefferson County, 601 S.W.3d 795, 798 (Tex. 2020) (per curiam). Actual notice only requires that the City be "subjectively aware that it may be responsible for death, injury, or property damage in the manner ultimately alleged by the claimant." Id. (quoting Worsdale, 578 S.W.3d at 77). In Reyes v. Jefferson County, Reyes sued the county for injuries he sustained in a car accident with a county police officer's car. Id. at 796. Even though the county's third-party claims administrator found there had been no negligent conduct by the county or its employees, the Texas Supreme Court concluded the county had actual notice because "the [c]ounty and its authorized claims administrator knew about Reyes's allegations that a specifically identified county employee had injured him in an automobile accident." Id. at 796, 798. The county had actual notice despite its finding that its employee was not at fault for the car accident. Similarly, based on Zuniga's statement in the crash report, the City knew of Zuniga's allegation that a city employee injured her in a car accident, even though the fire department's investigatory reports do not show Desai was at fault. These reports do not negate actual notice.
Zuniga's burden was to raise a fact issue as to whether the City had actual notice of her claim. She has done so, and therefore the trial court properly denied the City's plea to the jurisdiction and summary-judgment motion. We therefore overrule the City's sole issue.
CONCLUSION
We affirm the trial court's order denying the City of Houston's plea to the jurisdiction and motion for summary judgment.