Summary
In Musyimi, this Court held that the City did not have actual notice of the plaintiff's personal injury claim because it did not have subjective awareness of his personal injuries.
Summary of this case from City of Houston v. HuffOpinion
01-21-00670-CV
07-26-2022
CITY OF HOUSTON, Appellant v. SOLOMON MUSYIMI, Appellee
On Appeal from County Civil Court at Law No. 3 Harris County, Texas Trial Court Case No. 1157023
Panel consists of Justices Landau, Hightower, and Rivas-Molloy.
MEMORANDUM OPINION
RICHARD HIGHTOWER, JUSTICE
In this interlocutory appeal, appellant City of Houston (the City) challenges the trial court's denial of its motion for partial summary judgment, which sought dismissal of appellee Solomon Musyimi's personal injury claim for lack of subject-matter jurisdiction. The claim arose from a car accident between Musyimi and a City of Houston police officer. The City contends that it retains its governmental immunity for the personal injury claim because it did not receive formal or actual notice of the claim as required by section 101.101 of Texas Tort Claims Act (TTCA) for waiver of immunity. See Tex. Civ. Prac. & Rem. Code § 101.101. Musyimi concedes that he did not provide timely formal notice to the City, but he maintains that the City had actual notice of his personal injury claim on the day of the accident. Because we hold that the undisputed jurisdictional evidence showed that the City did not have actual notice, we reverse the trial court's order denying the City's motion seeking dismissal and render judgment granting the motion and dismissing Musyimi's personal injury claim.
Background
On October 26, 2018, Houston Police Officer D. Cerda was on-duty driving his patrol vehicle on I-45 when he rear-ended a car driven by Musyimi. Three Houston police officers were dispatched to investigate the accident-one officer investigated the accident, one photographed the scene, and Sergeant F. Briones supervised. Sergeant Briones also prepared a Texas Peace Officer's Crash Report, which reflected information gathered by the officers during their investigation.
The crash report contained a summary of Officer Cerda's statement to the investigating officers regarding the accident. Officer Cerda stated that he was driving south on the freeway, transporting a prisoner, when he looked down to turn the knob on the radio. When he looked up, he saw that traffic had slowed, but he was unable to stop his vehicle in time to avoid hitting the rear of Musyimi's car.
In the section of the crash report entitled "Investigator's Narrative Opinion of What Happened," Sergeant Briones wrote that Officer Cerda had "failed to control speed and struck" Musyimi's car. He also noted: "driver inattention-adjusting radio."
The crash report reflected that the accident had resulted in no personal injuries. For each person involved-Musyimi, Officer Cerda, and the prisoner in the patrol car-Sergeant Briones made a notation indicating that each was not injured.
The report rated the damage to Musyimi's car as "1" on a scale of "0 to 7." A question in the report asked, "In your opinion, did this crash result in at least $1,000 damage to any one person's property?" Sergeant Briones answered, "No." And the report showed that Musyimi's car was not towed, rather, Musyimi drove it from the scene. The report also indicated that there was "0" damage to Officer Cerda's patrol vehicle.
On August 22, 2019-10 months after the accident-the City received a letter from Musyimi's attorney. The letter stated that the car accident had caused Musyimi a physical injury-specifically, "a Cervical Lumbar Sprain/Strain." The letter asserted that Musyimi had incurred $3,455 in medical bills to treat the injury. It also stated that the cost of repairing the damage to his car was $1,461.65. Medical bills and a receipt for the car's repair were attached to support the amounts claimed.
On July 21, 2020, Musyimi sued the City for personal injury and property damage allegedly caused by Officer Cerda's negligent operation of his patrol vehicle. Musyimi asserted that the City's governmental immunity had been waived by section 101.021 of the Texas Tort Claims Act (TTCA), which waives immunity from suit for negligent acts in certain circumstances, including for property damage and personal injury claims arising from the operation or use of a motor-driven vehicle. See Tex. Civ. Prac. & Rem. Code § 101.021(1).
The City answered the suit, generally denying Musyimi's claims and asserting the defense of governmental immunity. It also filed a "Traditional Motion for Partial Summary Judgment on its plea to the jurisdiction," seeking dismissal of Musyimi's personal injury claim on the ground that the City's governmental immunity had not been waived for that claim. The City did not seek dismissal of Musyimi's property damage claim.
The City pointed out that, in order for its immunity to be waived for the personal injury claim, the notice requirements of TTCA section 101.101 must be met. The City recognized that notice can be accomplished by formal notice received by the statutory deadline or by actual notice of the claim. See id. at § 101.101. The City argued that its motion should be granted because "it did not have actual knowledge, nor did it receive timely statutory notice of [Musyimi's] personal injury claim as a matter of law." It asserted that the August 2019 letter from Musyimi's attorney did not meet the statutory deadline for formal notice. The City also asserted that, without knowledge of Musyimi's personal injury before receiving the letter, it did not have actual notice of the personal injury claim.
To support its motion, the City offered (1) the crash report, (2) a "code sheet" for the crash report, which defined the abbreviations and codes used in the report, (3) photographs of Officer Cerda's patrol vehicle and Musyimi's car taken by the investigating officers on the day of the accident, and (4) the August 2019 attorney's letter. The City pointed out that the crash report reflected that Musyimi reported no personal injuries to the investigating officers at the scene. The City asserted that its knowledge of the accident itself or of the property damage to Musyimi's car was not sufficient to meet the criteria for actual notice because it did not have subjective awareness of Musyimi's personal injury before it received the attorney's letter.
Musyimi filed a response to the City's motion. He did not dispute that he had not provided formal notice of his personal injury claim by the statutory deadline. Instead, he argued that there was a question of fact to be resolved regarding whether the City had actual notice of his personal injury claim. Musyimi relied on the crash report adduced by the City to support his arguments and did not offer any additional jurisdictional evidence. He argued that the City's evidence showed that it had actual notice because Officer Cerda and the investigating officers were City employees, thus imputing knowledge of the accident and the damage to his car to the City. He asserted that the City's knowledge of the property damage to his car made it "adequately aware of the possibility" of his personal injuries.
The trial court signed an order denying the City's motion seeking dismissal of Musyimi's personal injury claim. The City now appeals the order. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).
Immunity from Personal Injury Claim
In one issue, the City contends that the trial court erred in denying its motion seeking dismissal of Musyimi's personal injury claim. The City argues that the undisputed jurisdictional evidence shows, as a matter of law, that its governmental immunity was not waived for Musyimi's personal injury claim because it did not receive actual notice of the claim.
A. Applicable Legal Principles
Generally, governmental entities, such as the City, are immune from suits seeking to impose tort liability on them. See City of San Antonio v. Tenorio, 543 S.W.3d 772, 775 (Tex. 2018). That immunity deprives trial courts of subject-matter jurisdiction over such suits, absent a waiver of their immunity. Id. The TTCA contains such a waiver, if notice, as prescribed by statute, is given. Id.
Under the TTCA, a governmental unit must be given notice of a claim against it "not later than six months after the day that the incident giving rise to the claim occurred." Tex. Civ. Prac. & Rem. Code § 101.101(a). This formal notice of claim must describe "(1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident." Id. Claimants must also comply with any time requirements for notice that a city has adopted by charter or ordinance. See id. § 101.101(b). Here, the City's charter requires written notice of a claim be provided to the City within ninety days after the injuries or damages were sustained. See Houston, Tex., Charter, art. IX, § 11.
Formal notice of a claim under subsections (a) or (b) is not required "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(c). But one of these forms of notice-formal or actual-is required as a jurisdictional prerequisite to suit. Worsdale v. City of Killeen, 578 S.W.3d 57, 77 (Tex. 2019). The purpose of the notice requirement is to ensure the prompt reporting of claims to enable governmental units to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). Failure to comply with the notice provision requires dismissal. See Tenorio, 543 S.W.3d at 775-76. Musyimi conceded that he had not timely complied with the formal-notice requirements, but he maintained that, on the day of the accident, the City had actual notice of his personal injury claim under subsection 101.101(c).
To have actual notice, a governmental unit must have the same knowledge it is entitled to receive in a formal notice of claim. Id. at 776. Knowledge that a death, injury, or property damage has occurred, standing alone, is not sufficient to put a governmental unit on actual notice for TTCA purposes. Id. A governmental unit has actual notice under the TTCA if it has 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. (citing Cathey, 900 S.W.2d at 341). Thus, because it is one of the three required elements of actual notice, "the governmental unit must have subjective awareness of the claimed injury." Jones v. Bd. of Tr. of Galveston Wharves, 605 S.W.3d 641, 643 (Tex. App.-Houston [1st Dist.] 2020, no pet.) (citing Tenorio, 543 S.W.3d at 776).
Actual notice requires that the governmental unit not only have knowledge of some injury but requires it have knowledge of information sufficient to identify the loss ultimately alleged. Id. (citing Worsdale, 578 S.W.3d at 71). If a governmental unit investigates an accident, whether the information acquired imparted actual notice depends on the particular facts. Id. (citing Tenorio, 543 S.W.3d at 776).
B. Standard of Review
We review a challenge to a trial court's ruling on subject matter jurisdiction de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); see Reyes v. Jefferson Cty., 601 S.W.3d 795, 798 (Tex. 2020) ("Notice is a prerequisite to subject-matter jurisdiction under the TTCA, and as such, presents a question of law we review de novo."). "When a defendant challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties to the extent necessary to resolve the jurisdictional issues raised. See Miranda, 133 S.W.3d at 227. A jurisdictional challenge based on sovereign immunity may be raised by a plea to the jurisdiction or by other procedural vehicles, such as a traditional motion for summary judgment-the procedural vehicle used here. See State v. Lueck, 290 S.W.3d 876, 884 (Tex. 2009). When the facts underlying the merits of the claims and subject matter jurisdiction are intertwined-and the procedural vehicle used is either a plea to the jurisdiction or a traditional motion for summary judgment-we apply the standard of review for a traditional motion for summary judgment to determine the jurisdictional challenge. See Miranda, 133 S.W.3d at 228. That is, "after the [governmental unit] asserts and supports with evidence that the trial court lacks subject matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue." Id. If the evidence shows disputed jurisdictional fact issues intertwined with the merits, then the trial cannot grant a plea to the jurisdiction or traditional motion for summary judgment but must await resolution of the fact issues by the fact finder. See id. at 227-28.
When, as in this case, the jurisdictional issue is not intertwined with the merits of the claims, disputed fact issues are resolved by the trial court, not by the fact finder, see Vernco Constr., Inc. v. Nelson, 460 S.W.3d 145, 149 (Tex. 2015), and we must defer to the trial court's express or implied factual findings so long as they are supported by sufficient evidence. Worsdale, 578 S.W.3d at 66. "Whether a governmental unit has actual notice is a fact question when the evidence is disputed, but it is a question of law when the evidence is undisputed." Tenorio, 543 S.W.3d at 776.
Here, the jurisdictional evidence was undisputed. Musyimi did not object to the City's jurisdictional evidence, nor did he offer his own evidence to controvert the City's evidence to show that it had actual notice of his personal injury claim. Instead, each side relied on the City's evidence to support its respective position. Because the jurisdictional evidence is undisputed, we review the actual-notice issue de novo as a question of law. See Worsdale, 578 S.W.3d at 66.
C. Analysis
The City asserts that the undisputed jurisdictional evidence showed that it did not have actual notice of Musyimi's personal injury claim because it did not have subjective awareness of his personal injuries before it received the letter from Musyimi's attorney. See Tenorio, 543 S.W.3d at 776. We agree.
Musyimi has never claimed that he informed Officer Cerda or the investigating officers on the day of the accident that he sustained any personal injury. Instead, Musyimi asserted that the City had actual notice of his personal injury claim because its agents-Officer Cerda and the investigating officers-had knowledge of the accident and that knowledge could be imputed to the City. He argued that, because a City employee caused the accident, other City employees investigated it, and a City employee prepared the crash report, "it follows" that the City "was on notice of this accident." But it is well-established that a governmental unit's awareness of an accident, without more, is not sufficient to show that it had subjective knowledge of any personal injuries sustained in the accident. See Jones, 605 S.W.3d at 645 (citing Renard v. Park Ten Mun. Util. Dist., 794 S.W.2d 956, 958-59 (Tex. App.-Houston [1st Dist.] 1990, no writ) (concluding that municipal utility district's knowledge of automobile accident was not evidence that it knew plaintiff was injured in accident)). Instead, "the governmental unit must have subjective awareness of the claimed injury." Id. at 643 (citing Tenorio, 543 S.W.3d at 776).
The fact that the City investigated the accident, by itself, also did not show that it had the requisite subjective knowledge of the information necessary to establish actual notice of Musyimi's physical injury. See Tenorio, 543 S.W.3d at 779 ("[W]e have recognized that it is not enough that the governmental unit conducted an investigation."); Jones, 605 S.W.3d at 644 ("Standing alone, the fact that Jones's fall was investigated does not establish notice."). And, here, the City's evidence showed that the investigation did not reveal Musyimi's personal injury. To the contrary, the crash report affirmatively showed that the City's investigation of the accident found that Musyimi had not sustained any personal injury in the accident. The notation "N" was entered in the box designated for the investigating officers to report the severity of Musyimi's injuries, if any. The code sheet for the crash report defined an entry of "N" to mean "Not Injured," thus indicating that the officers were neither informed nor otherwise aware that Musyimi had sustained any personal injury as a result of the accident. The report similarly reflected that Officer Cerda and his passenger were uninjured. It also indicated that Musyimi had driven his car from the scene.
Nor were there other circumstances indicating that the investigation provided the City with subjective awareness of Musyimi's injuries. The report reflected that the investigating officers determined that the damage to Musyimi's vehicle was "1" on scale of "0 to 7" and that the accident had not resulted in property damage over $1,000 "to any one person's property." The report further showed that there was "0" damage to Officer Cerda's patrol vehicle. Police photographs of the vehicles taken at the scene depicted the damage (and lack of damage) consistent with the scale of the damage indicated in the crash report.
Musyimi asserted that the City's knowledge of the property damage to his car was sufficient to provide subjective awareness of his personal injury because it made the City "adequately aware of the possibility" of his personal injuries and should have prompted the City to further investigate the accident and to inquire into Musyimi's possible injuries. But, in assessing actual notice, the Supreme Court of Texas has expressly rejected a standard that would require a governmental unit to engage in further inquiry or investigation, recognizing that such a broad interpretation would defeat the purpose of the notice provision. See City of San Antonio v. Johnson, 140 S.W.3d 350, 350-51 (Tex. 2004); City of San Antonio v. Cervantes, 521 S.W.3d 390, 396 (Tex. App.-San Antonio 2017, no pet.). As we have recognized, "[p]otential or constructive notice is not enough" for actual notice. Jones, 605 S.W.3d at 643 (citing Worsdale, 578 S.W.3d at 65, 76). Instead, the supreme court has been clear that the standard to apply is necessarily one of subjective awareness because lack of formal notice is excused only by actual, not constructive, notice. Worsdale, 578 S.W.3d at 65. The court explained that "the term 'notice,' in and of itself, refers to a 'warning' of something 'impending,' especially 'to allow preparations to be made.'" Id. at 70 (citing New Oxford American Dictionary 1200 (3d ed. 2010); WEBSTER'S NEW UNIVERSAL UNABRIDGED DICTIONARY 1326 (2d ed. 1996)). "And the necessity of 'subjective awareness' accords with the plain meaning of the term 'actual' as 'existing in act or fact,' rather than merely constructive." Id. (citing Webster's New Universal Unabridged Dictionary 21 (2d ed. 1996)). Here, the evidence showed that the City did not have subjective awareness of Musyimi's personal injuries on the day of the accident.
We note that the instant case presents circumstances and issues similar to those in (1) Oswalt v. Hale County, No. 07-21-00050-CV, 2022 WL 93613 (Tex. App.-Amarillo Jan. 10, 2022, no pet.) (mem. op.) and (2) City of San Antonio v. Cervantes, 521 S.W.3d 390 (Tex. App.-San Antonio 2017, no pet.)-two cases we find instructive. In Oswalt, the Oswalts were involved in a traffic accident with on-duty Hale County Deputy Sheriff Gonzalez. Oswalt, 2022 WL 93613, at *1. Gonzalez did not see the Oswalts at an intersection, and the deputy's vehicle collided with the right fender of a trailer the Oswalts were pulling behind their truck, damaging the trailer's fender. Id. The accident did not damage the truck, and no one indicated they were injured at the scene. Id. Gonzalez took pictures of the damage to the trailer. Id.
The Oswalts later sued Hale County for personal injury and property damages sustained in the accident. Id. Hale County filed a plea to the jurisdiction asserting that the Oswalts had not provided timely notice of their claims as required by the TTCA and that it did not have actual notice of any personal injury resulting from the accident. Id. The trial court issued an order granting the plea for the Oswalts' personal injury claims but denying the plea for the Oswalts' property damage claim. Id. Both sides appealed the order. Id.
Regarding their appeal, the Oswalts did not dispute that they had failed to provide timely formal notice but instead asserted that "that Hale County's knowledge that they sustained property damage was sufficient actual notice to waive Hale County's immunity as to their personal injury claims." Id. at *2. In support of this assertion, the Oswalts pointed out that TTCA section 101.101 is worded disjunctively, requiring formal notice of "the damage or injury claimed" or actual notice "that the claimant has received some injury[ ] or that the claimant's property has been damaged." See id. (citing Tex. Civ. Prac. & Rem. Code § 101.101(a), (c)). Musyimi similarly asserts in his brief that "[t]he statute does not require a separate notice for each claim that one may have against a government unit involving the same accident."
In addressing the argument regarding the disjunctive nature of the statute, the Oswalt court noted that the same argument had been raised in Cervantes, a case also involving an auto accident in which a city defendant was aware at the time of the accident that the vehicle the plaintiff had been driving was damaged but was unaware that the plaintiff had sustained personal injuries until after the statutory notice deadline had expired. Id. at *3; see Cervantes, 521 S.W.3d at 395-97. In construing the statute, the Oswalt court observed:
As the Cervantes court points out, it is the claim about which the governmental unit is entitled to notice and the claim in Cervantes as well as in the present case is a claim for personal injuries. . . . As such, actual notice of a claim for property damage does not equate to actual notice of personal injury.Oswalt, 2022 WL 93613, at *3 (citing Cervantes, 521 S.W.3d at 397).
The Oswalt court also stated that construing subsection 101.101(c) to require actual notice of both a plaintiff's property damages and his personal injury claim in order to bring a personal injury claim was consonant with the underlying purpose of the notice requirement. The court explained that, because "there is often a significant difference in terms of exposure to financial damages between a claim for property damage and personal injury, our construction of subsection 101.101(c) furthers the purposes of the notice requirement by allowing the governmental unit to more accurately assess its potential financial exposure to claims." Id. (citing Worsdale, 578 S.W.3d at 77 ("Prompt notice alerts governmental units of the need to investigate claims, abate dangerous conditions, and make appropriate budgeting decisions."). We agree with the Oswalt court that, not only does section 101.101's language require notice of both a plaintiff's property damage and personal injury claim, but such a construction also serves the notice requirement's purpose.
Based on the undisputed jurisdictional evidence, we hold that the City did not have actual notice of Musyimi's personal injury claim. Thus, the trial court erred by denying the City's motion for partial summary judgment seeking dismissal of the claim for lack of subject-matter jurisdiction.
We sustain the City's sole issue.
Conclusion
We reverse the trial court's order denying the City's motion for partial summary judgment and render judgment granting the motion and dismissing Musyimi's personal injury claim.