567 S.W.3d 377
Tex. App.2018Background
- June 7, 2015: Motorcycle driven by Scott Worsdale struck a large unmarked dirt mound blocking Reese Creek Road in Killeen; both Worsdale and passenger Heike King were seriously injured and later died.
- Killeen Police Department investigated; Officer Bradley Blenden’s report described the dirt mound, conversations with City departments about ownership/maintenance, and that the City had known the road was blocked for ~two years.
- Officer Blenden’s report did not attribute fault to the City; it noted the City believed it did not own/maintain the road and that City crews cleared the mound and placed barricades two days after the accident.
- Appellees sued the City under the Texas Tort Claims Act (TTCA), alleging a dangerous special defect and failure to warn/maintain the road.
- Appellees did not provide written statutory notice within six months. They argued subsection (c) of Tex. Civ. Prac. & Rem. Code § 101.101 tolled written notice because the City had "actual notice."
- The trial court denied the City’s plea to the jurisdiction; the court of appeals reversed and dismissed appellees’ claims for lack of subject-matter jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the City had "actual notice" under Tex. Civ. Prac. & Rem. Code § 101.101(c) so written six‑month notice was not required | Appellees: Officer report and interdepartmental communications showed the City knew of the deaths/injuries and facts giving rise to a claim (road blocked, City aware, later cleared the mound) | City: Under Cathey/Simons/Carbajal, "actual notice" requires the governmental unit's subjective awareness of its fault; the report does not convey City culpability | Held: No. Evidence did not show the City had subjective awareness of fault within six months; plea to the jurisdiction granted and claims dismissed |
Key Cases Cited
- Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995) (actual notice requires knowledge that conveys the governmental unit’s possible culpability)
- Texas Dep't of Crim. Justice v. Simons, 140 S.W.3d 338 (Tex. 2004) (actual notice means subjective awareness of the unit’s fault as ultimately alleged)
- City of Dallas v. Carbajal, 324 S.W.3d 537 (Tex. 2010) (investigative police reports that do not attribute fault do not supply actual notice)
- Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339 (Tex. 1998) (governmental immunity is waived only by clear legislative authorization)
- Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex. 2003) (plaintiff bears burden to demonstrate waiver of immunity)
- Texas Nat. Res. Conservation Comm'n v. White, 46 S.W.3d 864 (Tex. 2001) (courts consider pleaded facts and relevant evidence on jurisdictional issues)
- Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (plea to the jurisdiction reviewed de novo on mixed pleadings)
- University of Tex. Sw. Med. Ctr. at Dall. v. Estate of Arancibia, 324 S.W.3d 544 (Tex. 2010) (medical records that expressly attribute error to hospital can show subjective awareness of fault)