Passenger in pickup truck injured during a car accident failed to timely sue within limitations says First District Court of Appeals

Andre Gibbs v. The City of Houston, 01-20-00570-CV, (Tex. App – Houston [1st Dist], Oct. 12, 2021)

This is a Texas Tort Claims Act (“TTCA”) case where the First Court of Appeals affirmed the granting of the City’s motion for summary judgment.

Brannon was driving a pickup truck when she collided with a Houston Police Department SUV, driven by a City employee. Gibbs was one of six passengers riding in the pickup truck.  Brannon sued the City, which the other passengers joined, but Gibbs was not named in the amended petition. After the statute of limitations passed, Gibbs was joined in a later petition. The City filed a motion for summary judgment against Gibbs asserting the statute of limitations. The trial court granted the motion and Gibbs appealed.

The party suing a governmental entity has the burden to establish jurisdiction by pleading—and ultimately proving—not only a valid immunity waiver but also a claim that falls within the waiver. the City argued that neither it nor its employee could be liable to Gibbs under Texas law because Gibbs’ claims are barred by limitations. Thus, the City argued, Gibbs’ claims do not fall within any TTCA waiver.  Gibbs asserted the “inadvertent omission” exception which is based on excusable inadvertence or mistake.  However, the exception was created when existing parties were inadvertently dropped from suit, then added back later. In this case, Gibbs joined as a party in the suit for the first time after limitations expired.  Ordinarily, an amended pleading adding a new party does not relate back to the original pleading. Since Gibbs was not added until after the limitations expired, it was proper for the court to grant the City’s summary judgment.

Panel consists of Chief Justice Radack and Justices Rivas-Molloy and Guerra. Affirm TC Judgement. Memorandum Opinion by Justice Rivas-Molloy can be read here. Docket page with attorney information found here.

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