Notice of injury alone is not “actual notice” of claim under TTCA

Texas Department of Transportation, v Cash, NO. 09-12-00463-CV (Tex. App. – Eastland, April 18, 2013).

This is a slip and fall case where the Court of Appeals reversed the denial of TxDOT’s Plea to the Jurisdiction.  Cash fell allegedly due to a premise defect resulting from construction by TxDOT which lead up to her mailbox.  TxDOT filed a Plea to the Jurisdiction asserting Cash failed to provide notice of the claim under §101.101 of the Texas Tort Claims Act.  The trial court denied the plea and the Ninth District Court of Appeals reversed and rendered.

Cash did not dispute she failed to provide written notice of the claim.  Instead she presented deposition testimony establishing her husband informed TxDOT over the phone that she had fallen and requested the area in front of his mailbox be fixed, thereby giving TxDOT actual notice. The court determined that the evidence, even if true and undisputed, merely informed TxDOT of the injury and not “the subjective awareness” of TxDOT’s potential fault. “Mere notice that an incident has occurred is not sufficient” *9. Since §101.101 of the TTCA’s notice provision is jurisdictional the trial court erred in denying the plea.

A second issue within the opinion which is of note is the court’s analysis of whether it retains interlocutory jurisdiction to hear the appeal given the murky procedural history of the case. Given the Texas Supreme Court’s holding in Houston v Jones noting that any initial denial (even implied denial) of a plea starts the clock for an interlocutory appeal, the procedural analysis of the court is helpful. [Summary here]  Essentially, in this case the TxDOT filed a plea which was denied from the bench but no order issued, TxDOT filed MSJ, TxDOT appealed the plea, court of appeals initially remanded the case so the trial judge could issue an order, trial judge signs order denying plea but no new notice of appeal is filed, etc. . . etc. .. [too murky for this summary].  In the end the court determined it retained interlocutory jurisdiction. For a governmental litigation attorney dealing with similar issues the analysis, while short, could be helpful.

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