693 S.W.3d 894
Tex. App.2024Background
- Delisa Boodoosingh was stopped in her vehicle when a Houston fire truck, driven by city employee Kevin Lamont Goodie, struck her vehicle, allegedly due to Goodie’s negligence.
- Boodoosingh claimed personal injuries and property damage resulting from the accident and sued the City of Houston.
- The City of Houston filed a Rule 91a motion to dismiss, asserting governmental immunity due to a failure of proper notice under the Texas Tort Claims Act and the "emergency exception" affirmative defense.
- Boodoosingh amended her petition to clarify her claims, including that the City had actual or constructive notice and that the City had raised the emergency exception.
- The trial court denied Houston’s Rule 91a motion to dismiss; Houston appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether suit barred for lack of notice | Boodoosingh alleged the City had actual and/or constructive notice of the claim | Houston argued there was no required notice of claim; relied on evidence outside the pleadings | Denial of motion to dismiss affirmed; pleadings sufficient for notice at this stage |
| Whether emergency exception precluded suit | Emergency exception not conclusively established on the pleadings | Emergency exception affirmative defense applies, preserving immunity | Denial of motion to dismiss affirmed; not established in pleadings |
Key Cases Cited
- In re Farmers Tex. Cnty. Mut. Ins. Co., 621 S.W.3d 261 (Tex. 2021) (sets standard for Rule 91a motion to dismiss—must accept pleadings as true)
- City of San Antonio v. Maspero, 640 S.W.3d 523 (Tex. 2022) (articulates governmental immunity and waiver under Texas Tort Claims Act; distinguishes plea to jurisdiction from Rule 91a motions)
- Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012) (explains that lack of waiver of immunity deprives courts of subject matter jurisdiction)
- Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651 (Tex. 2020) (affirmative defenses only support Rule 91a dismissal if conclusively established within plaintiff’s pleadings)
- HMT Tank Serv. v. Am. Tank & Vessel, Inc., 565 S.W.3d 799 (Tex. App.—Houston [14th Dist.] 2018) (Rule 91a review requires acceptance of factual allegations in pleadings as true)