Opinion
No. 05-06-00775-CV
Opinion Filed August 22, 2007.
On Appeal from the County Court at Law No. 5 Dallas County, Texas, Trial Court Cause No. cc-04-5354-e.
Before Justices MORRIS, O'NEILL and FITZGERALD.
MEMORANDUM OPINION
In this interlocutory appeal, appellant Dallas County appeals the trial court's denial of its plea to the jurisdiction. In two issues, the County asserts the plea should have been granted because appellee Sandy Harris did not give it notice under section 101.101 of the Texas Civil Practice and Remedies Code or under section 89.0041 of the Texas Government Code. For the following reasons, we reverse the trial court's judgment and dismiss this case for want of jurisdiction.
On May 19, 2002, Harris was involved in a one-vehicle automobile accident in which one of her daughters was killed and the other injured. According to Harris, the accident occurred when she drifted onto the shoulder of the roadway on a sharp curve. When Harris attempted to return to the roadway, a six-inch drop off on the shoulder caused her vehicle to spin and roll-over. Harris sued the County alleging the six-inch drop off constituted a premises defect and special defect. Dallas County filed a plea to the jurisdiction alleging the trial court lacked jurisdiction because Harris did not comply with the notice provisions of section 101.101(c) of the Texas Tort Claims Act or section 89.0041 of the Texas Local Government Code.
Harris responded to the plea conceding she failed to give formal written notice of the claim under the Tort Claims Act, but claiming the County had actual notice sufficient to satisfy the requirements of the Act. According to Harris, formal notice was not required because the County knew, within six months of the accident, (1) of the injury, (2) of the defect, and (3) of the causal relationship between the injury and the defect. She further alleged the notice provisions of the local government code did not apply to her claim. The trial court denied the plea to the jurisdiction. The County appeals.
The Tort Claims Act requires a claimant to give a government entity formal, written notice of a claim against it within six months of the incident giving rise to the claim. Tex. Civ. Prac. Rem. Code Ann. § 101.101(a) (Vernon 2005). The notice provision is a jurisdictional requirement. See Tex. Gov't Code Ann. § 311.034 (Vernon Supp. 2006-07). The notice must reasonably describe: (1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident. Id. However, under section 101.101(c) of the Act, a claimant is excused from giving formal notice if the governmental entity 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 Ann. §§ 101.101(c) (Vernon 2005). Actual notice consists of a government entity's knowledge of: (1) a death, injury, or property damage, (2) its alleged fault in producing or contributing to the death, injury, or property damage, and (3) the identity of the parties involved. See Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995) (per curiam).
Knowledge of fault requires actual subjective awareness of fault. Texas Dep't of Criminal Justice v. Simons, 140 S.W.3d 338, 347 (Tex. 2004). Thus, it is not sufficient that the government unit should have investigated an incident, or that it did investigate as part of routine procedures, or that it should have known from the investigation it conducted that it might have been at fault. Id. at 347-48. Rather, actual subjective awareness of fault is required to give the government entity the same incentive to gather information as if it had been given formal notice. Id. at 48. Actual notice is a fact question when disputed. Id. In many instances, however, actual notice can be determined as a matter of law. Id.
In its first issue, the County asserts the trial court erred in denying its plea to the jurisdiction because Harris did not comply with the notice provisions of the Tort Claims Act. A plea to the jurisdiction challenging the trial court's jurisdiction raises a question of law that we review de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007); Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). When a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court must consider relevant evidence submitted by the parties to the extent necessary to resolve the jurisdictional issue. Miranda, 133 S.W.3d at 227. If the evidence is undisputed or fails to raise a fact issue, the trial court should rule on the plea to the jurisdiction as a matter of law. Id. at 228.
Here, the question presented is whether the County was subjectively aware that its fault produced or contributed to the injury. The County would only be at "fault" in this premises defect case if, among other things, the County either was actually aware of the dangerous condition (premises defect) or should have known of the dangerous condition (special defect) prior to the accident. See City of Dallas v. Reed, 222 S.W.3d 903, 907-08 (Tex.App.-Dallas 2007, pet. filed). To show it had no subjective awareness of its fault, the County presented evidence that it had received no complaints about the road and had no knowledge of any dangerous condition on the roadway before the accident. To show the County did have subjective awareness of fault, Harris relied on evidence that certain County employees knew of the accident, knew of the dangerous condition after the accident, and knew of a causal relationship between the dangerous condition and the accident. Specifically, the officer that investigated the accident, Deputy Sheriff Kevin Breaux, testified by deposition that there was a drop-off in the roadway in the vicinity of the accident. Roger Miller, the county employee responsible for the maintenance of the road testified by deposition that he received a complaint about the road following the accident. In particular, the mayor of the city where the accident occurred sent Miller a letter notifying him of a "a little girl getting killed" on the road and asked Miller if he could do something to make the road "better." In response, Miller fixed the drop-off as part of routine daily maintenance.
There is nothing in either Breaux's or Miller's testimony that would suggest either believed the County had breached any duty to Harris or that the County was in any way responsible for the accident. At most, the testimony showed the County was aware of the drop-off following the accident. However, post-accident knowledge of the condition does not constitute knowledge of "fault." See Ortegren v. City of Denton, 02-05-00177-CV, 2006 WL 495387 at *4-5 (Tex.App.-Fort Worth March 2, 2006, pet.denied) (mem. op.) (knowledge of dangerous drop-off on roadway and knowledge of accident at the drop-off not sufficient to show subjective knowledge of fault). Furthermore, there is no evidence that either Breaux or Miller was charged with reporting or investigating claims against the County or that either forwarded any information about the accident to the County's legal department, risk manager, or any other individual responsible for reporting or investigating such claims. See Tex. Dept. of Criminal Justice v. Simons, 197 S.W.3d 904, 911 (Tex.App.-Beaumont 2006, no pet.) (knowledge of a warden at TDCJ does not constitute knowledge of TDCJ absent evidence warden charged with reporting or investigating claims). We conclude the County was not subjectively aware that it was at fault for the accident. We resolve the first issue for the County.
Because of our resolution of this issue, we need not reach the County's second issue asserting the trial court lacked subject-matter jurisdiction because Harris did not give it notice under section 89.0041 of the Local Government Code. Tex. Local Gov't Code Ann. § 89.0041 (Vernon Supp. 2006-07). We reverse the trial court judgment and dismiss this cause for want of jurisdiction.