Darvus Henry v. City of Midland, 11-16-00265-CV (Tex. App. – Eastland, August 31, 2018).
This is a Texas Tort Claims Act (“TTCA”) vehicle collision case where the Eastland Court of Appeals upheld the granting of the City’s plea to the jurisdiction based on lack of timely notice.
Henry sued the City of Midland asserting that “a manhole cover caught the underside” of his vehicle causing a single-vehicle accident. He pleaded that the manhole cover was tangible physical property but, in the alternative, that the manhole cover was a special defect or premises defect. The City filed a plea to the jurisdiction which the trial court granted.
The TTCA requires notice of a claim within six months and the City of Midland’s charter requires written notice of claim within sixty days after the injury or damage is sustained. Henry asserted the City had the required elements of actual notice of the claim. “Knowledge that a death, injury, or property damage has occurred, standing alone, is not sufficient to put a governmental unit on actual notice for TTCA purposes.” Whether a governmental unit has actual notice is a fact question when the evidence is disputed, but it is a question of law when the evidence is undisputed. Henry relies on a police accident report to establish notice. There is no mention in the police accident report that a manhole cover was a cause of the accident or that the City’s maintenance of the manhole cover was a cause of the accident. Furthermore, the police accident report indicates that Henry was not injured as a result of the accident. That is insufficient to establish actual notice of fault or of the injury. The plea was properly granted.
If you would like to read this opinion, click here. Justice Bailey, Senior Justice Wright, Retired Visiting Judge Gray. Memorandum Opinion by Justice Bailey. The attorney listed for the City is Melinda Hamm. The attorney listed for Henry is Mark A. Cevallos