Opinion
04-22-00003-CV
07-13-2022
CITY OF SAN ANTONIO, Appellant v. Fanny BELLORIN, Individually, and on Behalf of and as Next Friend of Derlin Hernandez, Appellee
From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2020-CI-19692 Honorable H. Paul Canales, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice, Irene Rios, Justice, Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Lori I. Valenzuela, Justice
The City of San Antonio (COSA) appeals the trial court's denial of COSA's plea to the jurisdiction asserting sovereign immunity. Because COSA did not have timely notice of appellee's claims, we reverse the judgment of the trial court and render judgment dismissing Hernandez's claims against COSA for lack of jurisdiction.
Background
On the morning of September 29, 2020, Derlin Hernandez suffered severe injuries in an accident occurring in a construction zone near the intersection of Upland Road and Martin Luther King Drive in San Antonio, Texas. Just before sustaining his injuries, Hernandez was riding as a passenger on a backhoe driven by his co-worker. As the backhoe was traveling north across MLK from a construction yard located on the south side of the street, the backhoe was hit by a pickup truck traveling east on MLK. At impact, Hernandez was ejected from the backhoe and run-over by either the backhoe, the truck, or a trailer being towed by the truck.
COSA public safety personnel responded to the accident. San Antonio Fire Department and EMS personnel rushed Hernandez to the hospital where medical staff were able to save his life. The San Antonio Police Department investigated the accident, and the investigating officer determined the truck's speed and faulty evasive action by its driver contributed to the crash. Two SAPD officers also noted the driver expressing an inability to see due to bright sunlight.
On June 23, 2021-267 days after the accident-Hernandez's lawyer sent written notice of claim under section 101.101 of the Texas Tort Claims Act (TTCA). In the notice of claim, appellee Fanny Bellorin, Individually and on Behalf of and as Next Friend of Derlin Hernandez, asserted COSA had actual notice of Hernandez's injuries by virtue of the injuries allegedly occurring in the course and scope of his employment while working on a road maintenance and repair project for COSA under a contract or agreement between COSA and his employer. Appellee thereafter joined COSA to her pending lawsuit.
COSA filed a plea to the jurisdiction arguing COSA was immune from suit because it did not have written or actual notice of appellee's claims-a prerequisite to waiver of immunity under the TTCA. In response, appellee asserted waiver of immunity based on both written and actual notice. The trial court denied COSA's plea to the jurisdiction, and this appeal followed.
Standard of Review
To establish subject matter jurisdiction, a plaintiff must allege facts that affirmatively demonstrate the court's jurisdiction to hear the claim. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). A plaintiff also bears the burden of establishing a waiver of sovereign immunity in suits against the government. Id. A party may contest a trial court's subject matter jurisdiction by filing a plea to the jurisdiction. Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016). We review a trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Id. at 160; County of Bexar v. Steward, 139 S.W.3d 354, 357 (Tex. App.-San Antonio 2004, no pet.). Moreover, "[n]otice is a prerequisite to subject-matter jurisdiction under the TTCA, and as such, presents a question of law we review de novo." Reyes v. Jefferson County, 601 S.W.3d 795, 798 (Tex. 2020) (per curiam).
Our de novo review looks to the pleader's intent and construes the pleadings in its favor. Houston Belt, 487 S.W.3d at 160. But where a defendant presents evidence to challenge the existence of jurisdictional facts, as here, we are "not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised." Shady Shores, 590 S.W.3d at 550 (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)). When a plea to the jurisdiction challenges the existence of jurisdictional facts with supporting evidence, as here, the standard of review mirrors that of a traditional summary judgment: all the evidence is reviewed in the light most favorable to the plaintiff to determine whether a genuine issue of material fact exists. Id. (citing Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004)).
Written Notice
Under the TTCA, a governmental unit is entitled to receive written notice of a tort 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). As authorized by statute, COSA's charter provides for a shorter notice period of ninety days. Id. § 101.101(b) ("A city's charter . . . requiring notice within a charter period permitted by law are ratified and approved."); San Antonio City Charter, art. 12 § 150.
According to appellee, her June 23, 2021 letter sufficiently notified COSA of her claims "within the ninety-day timeframe requirement." We disagree. The incident occurred on September 29, 2020. Appellee's written notice to COSA was sent 267 days after the incident-well beyond both the ninety-day and six-month notice periods. Applying the applicable standard of review, we accordingly hold appellee failed to timely notify COSA of her claims under section 101.101 of the TTCA.
Actual Notice
Nevertheless, the notice requirements of section 101.101(a)-(b) do not apply if the governmental unit has actual notice. Tex. Civ. Prac. & Rem. Code § 101.101(c). To establish actual notice, a personal injury claimant must show that the governmental unit (1) knew about the claimant's injury; (2) was aware of facts about the incident (e.g., date, time, location, and what happened); and (3) had subjective awareness of its fault. Id.; City of San Antonio v. Tenorio, 543 S.W.3d 772, 776 (Tex. 2018). The last of these requirements is at issue here.
Knowledge that an injury has occurred, standing alone, is not sufficient to put a governmental unit on actual notice for TTCA purposes. Tenorio, 543 S.W.3d at 776. "[T]he actual notice provision requires that a governmental unit has subjective awareness that its fault, as ultimately alleged by the claimant, produced or contributed to the claimed injuries." Id. "The actual notice requirement is not met just because the governmental unit (1) should have investigated an accident as a prudent person would have, (2) investigated an accident as part of its routine safety procedures, or (3) should have known it might have been at fault based on its investigation." Id. (citing Tex. Dept. of Criminal Justice v. Simons, 140 S.W.3d 338, 347-48 (Tex. 2004)). Actual notice does not require a governmental unit to subjectively conclude that it is actually liable to the claimant, but the governmental unit must be subjectively aware "that it may be responsible for death, injury, or property damage in the manner ultimately alleged by the claimant." Reyes, 601 S.W.3d at 798 (quoting Worsdale v. City of Killeen, 578 S.W.3d 57, 77 (Tex. 2019)).
It is undisputed that the San Antonio Police Department responded to, investigated, and reported on the incident. Appellee asserts the investigative report establishes actual notice. But nothing in the report supports even an inference that COSA had subjective awareness that it may be responsible for injury in the manner alleged by appellee. The report showed no COSA vehicles were involved in the accident. It did not document the presence of any COSA employees until after the incident, when police, fire, and EMS responders arrived on the scene. The report concludes that errors committed by non-COSA drivers caused the crash-not inadequate traffic-control measures or signage as Hernandez alleges.
Absent at least an implication of COSA's fault, the report cannot constitute a basis for a finding of actual notice. See Tenorio, 543 S.W.3d at 778 ("[T]he crash report's listing 'Fleeing or Evading Police' as a contributing factor to the collision does not raise a fact issue as to whether the City was at fault in causing it. . . . [N]othing in the crash report, witness statements, or case report indicate, either expressly or impliedly, that the SAPD subjectively believed its officers acted in error by initiating or continuing the pursuit such that they were in some manner responsible for the injuries."); City of Dallas v. Carbajal, 324 S.W.3d 537, 538-39 (Tex. 2010) ("[M]erely investigating an accident is insufficient to provide actual notice. . . . [T]he report here 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 report only describes what apparently caused the accident (missing barricades). It does not say who failed to erect or maintain the barricades. Carbajal ignores the possibility that a private contractor or another governmental entity (such as the county or state) could have been responsible for the road's condition. Indeed, after investigating the accident, the City determined that the Texas Department of Transportation was at fault."). Applying the applicable standard of review, we accordingly hold COSA lacked actual notice under section 101.101(c) of the TTCA.
Conclusion
Notice is a jurisdictional prerequisite to suit under the TTCA. Therefore, COSA's lack of written or actual notice is dispositive, and we need not reach appellant's remaining issue. See Tex. R. App. P. 47.1. We accordingly reverse the judgment of the trial court and render judgment dismissing appellee's claims against COSA with prejudice.