Driver who told City he was “shaken up” but “OK” did not provide actual notice of personal injury claim says Fourth Court of Appeals
City of San Antonio v. Charles Cervantes, 04-16-00569-CV(Tex. App— San Antonio, February 22, 2017)
This is an automobile accident case under the Texas Tort Claims Act where the San Antonio Court of Appeals reversed the denial of the City’s plea to the jurisdiction which was based on a lack of notice.
Cervantes worked for the Bexar County Sheriff’s Office and was driving his County vehicle in a City parking lot. A San Antonio police officer, driving a city-owned vehicle, allegedly failed to yield the right of way and struck Cervantes. He sued under the Texas Tort Claims. Act. The City filed a plea to the jurisdiction asserting Cervantes did not provide the required statutory notice under Tex. Civ. Prac. & Rem. Code §101.101 and it did not have actual knowledge notice. The trial court denied the plea and the City appealed.
Cervantes first asserts the City waived its right to appeal since the City’s attorney signed the order denying the plea “Approved as to form and substance.” However, “[t]he phrase ‘Approved as to Form and Substance’, standing alone, is insufficient to establish a consent judgment.” Nothing in the record indicates the City agreed to a consent judgment so it is entitled to appeal. The statutory notice requirement is satisfied if the governmental unit receives formal notice within six months of the incident that “reasonably describe[s]: (1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident.” Tex. Civ. Prac. & Rem. Code §101.101(a). The City’s risk manager and custodian of records affidavit established the City did not receive formal written notice under §101.101 and Cervantes did not present any evidence to contradict the testimony. As to actual notice, the evidence submitted included Texas Peace Officer’s Crash Report, the San Antonio Police Department Vehicle Accident Report and Loss Notice, and excerpts from the depositions of Cervantes and his supervisor. Both reports note damage to the County vehicle is sustained but no injuries were reported. Cervantes’ supervisor, Lt. Garza, testified he spoke with Cervantes shortly after the accident who told him Cervantes was not injured in the collision. Further, Cervantes did not take any time off from work due to the accident. There is no suggestion in the evidence before the trial court that Cervantes was visibly injured. Cervantes argues the City had actual notice he received some injury because he told the City supervisor of the PD officer that he was “kind of shaken up” and other general references. The San Antonio Court of Appeals held “[w]e decline to hold that a person who states he is feeling ‘shaken up’ or ‘kind of numb,’ but thinks he is ‘all right’ and ‘okay’ has by those words given any notice that he has received some injury.” Finally, simply because the City knew of the car accident does not mean it knew of the injury. Required notice relates to the claim (i.e. personal injury vs property damage) and separate notice is required for both. Cervantes failed to establish he provided either statutory notice or that the City had actual notice of all required elements. The plea should have been granted.
If you would like to read this opinion click here. The Panel includes Chief Justice Marion, Justice Martinez, and Justice Chapa. Justice Chapa delivered the opinion of the court. Attorneys for the City: William Logan Lewis and Shawn Kevin Fitzpatrick. Attorney for the Appellee: Thomas D. Jones.
