Dallas Area Rapid Transit v. Donald Armstrong, 05-14-00779-CV (Tex. App. – Dallas, April 15, 2015).
This is a Texas Tort Claims Act (“TTCA”) notice case where the Dallas Court of Appeals affirmed the denial of a plea to the jurisdiction in this interlocutory opinion.
Armstrong was struck by a DART bus while he was crossing the street. The same day as the accident the bus driver filled out an accident report, his supervisor filled out an accident report, and a DART police officer filed two separate reports. One of the police reports notes the driver glanced into his rear view mirror to make sure his tire cleared when Armstrong ran in front of him. After the TTCA six month notice deadline had passed DART received a notice letter from Armstrong’s attorney. Armstrong filed suit and DART filed a plea to the jurisdiction noting it did not have proper notice of the claim. The trial court denied the plea and DART appealed.
The “actual notice” exception to the statutory written notice element requires a knowledge of fault which means actual subjective awareness of fault in producing or contributing to the claimed injury. This does not mean that the governmental unit is required to know that the claimant has made an actual allegation of fault, just that it is aware it could be at fault. Fault is not synonymous with liability; rather, it implies responsibility for the injury claimed. When the facts show the governmental unit is the sole instrumentality of the injury or harm and has awareness of this fault, requiring formal, written notice “would do nothing to further the statutory purposes…” The court was careful to state that its holding should not be interpreted to mean that anytime a bus is involved in an accident DART would be imputed to have actual knowledge of its fault. However, here, the sole reason Armstrong was injured is because the bus struck him while crossing the street. There are no other factors to impact the subjective awareness of fault. As a result, the plea was properly denied.
If you would like to read this opinion click here. Panel: Justice Francis, Justice Lang-Miers and Justice Brown. Memorandum Opinion by Justice Francis. The attorney listed for DART is Joycell Marie Hollins. The attorneys listed for Armstrong are Aaron Spahr and Yevgen Olshevskyy.