Police and maintenance reports insufficient to establish actual awareness by City of its alleged fault under TTCA

City of San Antonio and City Public Service n/k/a CPS Energy v. Joel Herrera, 04-13-00304-CV (Tex. App. – October 16, 2013).

This is an interlocutory appeal from the denial of a plea to the jurisdiction involving a car accident in which Plaintiff Herrera (motorcyclist)  alleges the City of San Antonio and CPS Energy (“City”) failed to repair a malfunctioning traffic signal (due to a lack of power). The 4th Court of Appeals reversed the denial and dismissed the claims.

Herrera essentially brought a Texas Tort Claims Act case alleging the City failed to repair the traffic device a reasonable time after receiving notice it was malfunctioning. The City’s plea asserted he failed to provide the statutory notice prerequisite under Tex. Civ. Prac. & Rem. Code §101.101. Herrera asserted a fact question existed as to whether or not the City had “actual notice” of the claim mooting the paper filing requirement.

The 4th Court held a governmental unit has actual notice of a claim when it has knowledge of (1) a death, injury, or property damage; (2) the governmental unit’s alleged fault producing or contributing to the death, injury, or property damage (i.e. subjective awareness of fault); and (3) the identity of the parties involved. Here, Herrera produced two City traffic signal management work reports and the investigating officer’s police report in an attempt to establish the subjective awareness of the City.  However, the reports did nothing but identify the device was inoperative and did not expressly or implicitly refer to any fault on the part of the City.  As a result, the court reversed and rendered a dismissal in the City’s favor.

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