Texas Fourth Court of Appeals holds that merely investigating an injury does not constitute actual notice of claim

Fanny Bellorin, Individually and on Behalf of and as Next of Friend of Derlin Hernandez v. City of San Antonio, No. 04-22-00003-CV, (Tex.App.—San Antonio July 13, 2022) (mem. op.)

This case stems from an appeal of the City of San Antonio’s (“COSA”) denied plea to the jurisdiction based upon lack of written or actual notice as required under the Texas Tort Claims Act (“TTCA”). The Fourth Court of Appeals reversed the denial and dismissed appellee’s claim.

Derlin Hernandez (“Hernandez”) was employed as a contractor/agent for COSA as part of a road maintenance crew. On September 29, 2020, Hernandez was injured when a vehicle, operated by a private individual, collided into a backhoe in which Hernandez was a passenger. Hernandez was ejected and run over by either the backhoe, the vehicle, or the trailer being towed by the vehicle. COSA personnel, including police, fire, and EMS, arrived to assess the situation, ultimately determining that the operation of the vehicle contributed to the collision. On June 23, 2021 (267 days after the incident), Hernandez’s counsel sent a notice of claim to COSA under Section 101.101 of the TTCA. The notice further alleged that COSA had actual notice of Hernandez’s injuries, then proceeded to join COSA in the pending suit. COSA filed a plea to the jurisdiction arguing no waiver of immunity due to no written or actual notice under the TTCA. The trial court denied the plea; this appeal followed.

The appellate court applied the facts of the case to the two means of providing notice under the TTCA. First, the appellate court acknowledged that the 267-day gap went well beyond the 180-day requirement under the TTCA as well as COSA’s own charter notice requirement deadline of 90 days after the occurrence of the incident. Second, the appellate court found no actual notice of the claim, which generally requires that the entity be subjectively aware that it may be responsible for the claimed injury. Here, COSA merely arrived on scene after the incident and the report produced as a result of the investigation did not even imply, let alone expressly state, that COSA was at fault. The court ultimately emphasized a Texas Supreme Court’s opinion, holding “knowledge that an injury has occurred, standing alone, is not sufficient to put a governmental unit on actual notice for TTCA purposes”

Due to the fact that the TTCA notice requirement is a jurisdictional prerequisite, the appellate court reversed the trial court’s denial of COSA’s plea to the jurisdiction, dismissing appellee’s claims against the City.

If you would like to read this opinion, click here. Panel consists of Chief Justice Martinez and Justices Rios and Valenzuela. Memorandum opinion by Justice Valenzuela.