Accident report, crash report, and verbal statements insufficient to establish actual notice under TTCA says 14th Court of Appeals

 

The City of Houston v. Mary McGowen, 14-13-00415-CV (Tex. App. – Houston [14th Dist.], May 15, 2014).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a vehicle accident case under the Texas Tort Claims Act (“TTCA”). The 14th Court of Appeals reversed the denial due to a lack of actual or formal notice of claim.

McGowen was allegedly involved in a vehicle accident with a City public works vehicle and brought suit. The City filed a plea to the jurisdiction asserting no notice of claim within the charter time period. McGowen asserted the City had actual notice through a driver’s crash report and verbal statements. The trial court denied the plea and the City appealed.

After going through the facts, the court noted none of the investigative reports (police or supervisor accident report) reflect the City was at fault for the accident, or that McGowen was a passenger or even present.  The driver of vehicle McGowen was allegedly a passenger in was noted at fault. McGowen asserted she told a purported City employee (Russell) at the hospital that she believed the City was at fault. She also asserts that she drafted a crash report and mailed it to Russell (which turned out to be mailed to the Texas Transportation Department, not the City).  Additionally, the report produced as evidence noted several significant differences with the facts of the case including the individuals involved, location of the accident, as well as contradicted McGowen’s own testimony. McGowen acknowledged during her deposition that she did not tell Russell her full name and address, claim that the City was at fault in the accident, or identify either of the drivers involved in the accident. The court stated accident reports are often insufficient, standing alone, to establish actual notice and the fact these did not even mention McGowen was involved at all is telling. The court held there was no evidence to establish a fact issue existed the City had subjective awareness of its alleged fault or of McGowen’s injuries and therefore no actual notice exists. As a result, the plea should have been granted. The court reversed and rendered.

If you would like to read this opinion click here. Panel: Chief Justice Frost, Justice Jamison and Justice Wise.  Memorandum opinion by Chief Justice Frost. The attorney listed for the City is John B. Wallace.  The attorney listed for McGowen is Craig W. Saunders.