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holding that department had no subjective awareness of plaintiff's claims where officer investigating accident concluded that roadway condition allowed water to pool and create dangerous condition and had previously warned department of dangerous condition many times
Summary of this case from City of Killeen v. WorsdaleOpinion
No. 12-07-00268-CV
Opinion delivered January 23, 2008.
Appeal from the 115th Judicial District Court of. Upshur County, Texas.
MEMORANDUM OPINION
Texas Department of Transportation ("TxDOT") filed this interlocutory appeal challenging the trial court's order denying its plea to the jurisdiction. In one issue, TxDOT argues that the trial court erred in denying its plea because Appellees, Stephanie Anderson, Cris Anderson, Karen Bobo, Rodney Bobo, and Jose Alicio Vazquez, individually and as heir and representative of the estate of Mariana Ramirez, deceased, and as next friend of Nancy Hernandez, Cesar Hernandez, Jose Guadalupe Vasquez, and Angel Antonio Vazquez, minors, did not give notice under Texas Civil Practice and Remedies Code, section 101.101. We reverse and render.
BACKGROUND
On October 4, 2004, Appellees Stephanie Anderson and Karen Bobo were involved in a two vehicle collision on US Highway 271 near the county line between Upshur and Camp Counties. Mariana Ramirez was killed in the collision, and Anderson and Bobo were seriously injured. Appellees contend that the collision was caused by standing water resulting from a defect in the roadway, that caused Ramirez to lose control of her vehicle and collide with the vehicle occupied by Anderson and Bobo. Appellees base their contention, in part, on the affidavit testimony of C. L. Hollis. Hollis's affidavit states, in pertinent part, as follows:
I am currently employed as an officer with the Texas Department of Public Safety. On October 4th, 2004, I responded to and investigated a car wreck on Highway 271 north of Gilmer in which Stephanie Anderson, Karen Bobo, and Mariana Ramirez suffered injuries.
Within days after October 4th, 2004 I went to the Texas Department of Transportation office outside of Gilmer and notified employees there, including the maintenance supervisor, of the wreck. I provided TxDOT with the identities of the victims, the date of the wreck, and the wreck's location. I notified them that there was one fatality and that several others were seriously injured in the wreck. I indicated that the wreck was caused, in my opinion, by the faulty condition of the road. I informed TxDOT employees that in my opinion the roadway allowed water to pool creating a dangerous condition and a potential for hydroplaning.
This was not the first time that I had notified TxDOT about problems on that stretch of roadway, as I had worked many accidents there in the past during periods of precipitation, and had been to that office on more than one occasion warning them about the dangerous condition of the roadway.
The Anderson and Bobo appellees filed suit against TxDOT and others on January 3, 2006. TxDOT answered and, thereafter, Jose Alicio Vasquez intervened, in both his individual and representative capacities. TxDOT subsequently moved to dismiss Appellees' case for lack of jurisdiction pursuant to the doctrine of sovereign immunity. In its motion, TxDOT contended that Appellees had not provided formal written notice of their claim as required by the Texas Tort Claims Act. Appellees responded that while they may not have provided formal written notice at TxDOT following the car wreck, TxDOT had received actual notice within the six month period.
See TEX. CIV. PRAC. REM. CODE ANN. § 101.101(a) (Vernon 2005) (A governmental unit is entitled to receive notice of a claim against it under Chapter 101 not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe (1) the damage or injury claimed, (2) the time and place of the incident, and (3) the incident.).
See TEX. CIV. PRAC. REM. CODE ANN. § 101.101(c) (Vernon 2005) (The notice requirement provided by subsection (a) does not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged.).
After conducting a hearing on the matter, the trial court denied TxDOT's plea to the jurisdiction. TxDOT timely filed this interlocutory appeal.
SOVEREIGN IMMUNITY
In its sole issue, TxDOT contends that the trial court erred in denying its plea to the jurisdiction because it did not receive actual notice of Appellees' claims. The State of Texas cannot be sued in her own courts without her consent and then only in the manner indicated by that consent. Wichita Falls State Hosp. v. Taylor , 106 S.W.3d 692, 694 (Tex. 2003) (citing Hosner v. De Young , 1 Tex. 764, 769 (1847)). Under the centuries old common law doctrine of sovereign immunity, the State is immune from liability and also from lawsuits. Ben Bolt-Palito Blanco Consol. Ind. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund , 212 S.W.3d 320, 324 (Tex. 2006). The doctrine of sovereign immunity has two purposes. First, state officials are not subjected to second guessing of certain governmental actions and decisions that involve making judgment calls. See Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 43 (Tex. 2002). Second, it protects the public coffers by keeping tax resources from being shifted away from their intended purposes and toward defending lawsuits and paying judgments. See Ben Bolt , 212 S.W.3d at 326.
For the legislature to waive the State's sovereign immunity, a statute or resolution must contain a clear and unambiguous expression of the legislature's waiver of immunity. Taylor , 106 S.W.3d at 696. That means a statute that waives the State's immunity must do so beyond doubt. Id. at 697. Further, when construing a statute that purportedly waives sovereign immunity, we generally resolve ambiguities in favor of the State's retaining its immunity. See id.
Standard of Review
Sovereign immunity from suit defeats a trial court's subject matter jurisdiction and thus is properly asserted by a plea to the jurisdiction. See Texas Dep't of Transp. v. Jones , 8 S.W.3d 636, 639 (Tex. 1999). Subject matter jurisdiction is essential to the authority of the trial court to decide a case. Starkey v. Andrews Center , 104 S.W.3d 626, 628 (Tex.App.-Tyler 2003, pet. denied). Whether a trial court has jurisdiction is a question of law subject to de novo review. Ben Bolt , 212 S.W.3d at 323. Because the issue in this case is whether the trial court lacked jurisdiction due to TxDOT's assertion of sovereign immunity, our review is de novo. Id.
Actual Notice
The Texas Tort Claims Act requires a claimant to provide a governmental unit with formal, written notice of a claim against it within six months of the incident giving rise to the claim; however, the formal notice requirements do not apply if the governmental unit has actual notice of the claim. See TEX. CIV. PRAC. REM. CODE ANN. § 101.101; Cathey v. Booth , 900 S.W.2d 339, 340 (Tex. 1995). Such "actual notice" to a governmental unit requires knowledge of (1) a death, injury, or property damage; (2) the governmental unit's alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved. See Cathey , 900 S.W.2d at 341.
Appellees have produced undisputed evidence showing that Hollis notified TxDOT employees within days of the automobile accident at issue informing them of the fatality and injuries and of his opinion that the accident had been caused by the faulty condition of the road. Appellees also produced undisputed evidence that Miles Garrison, a TxDOT pavement engineer who was responsible for repairing faulty roads, conducted an investigation in July 2005, which showed that the cross slope at the accident site was inadequate. Further undisputed evidence of record indicated that engineers with TxDOT exchanged emails in June 2005 about the need to repair the road. Appellees contend that each of these three pieces of undisputed evidence established that TxDOT had actual notice as required by subsection 101.101(c). TxDOT contends that none of this evidence reaches the level required to establish actual notice under the statute.
With reference to the exchange of emails among the TxDOT engineers in June 2005, TxDOT contends that such correspondence transpired outside the six month notice period prescribed by the statute and, therefore, cannot be relied upon to satisfy the actual notice requirement. We agree. These emails were exchanged among the TxDOT engineers approximately eight months after the accident. Moreover, nothing in the emails shows that TxDOT had actual subjective awareness of fault within six months of the accident. Therefore, the emails do not establish actual notice. See TEX. CIV. PRAC. REM. CODE ANN. § 101.101(a), (c).
We next consider the evidence that Garrison conducted an investigation and found an inadequate cross slope at the accident site. According to the record, sometime in early 2005 after receiving a newspaper article about the accident in question, Garrison requested a copy of the accident report prepared by DPS. Appellees do not contend that either the newspaper article or the accident report shows that TxDOT had the required actual notice within six months of the accident. In July 2005, Garrison investigated several sites at which accidents frequently occurred in wet weather after identifying those sites at the request of the main TxDOT office in Austin. Because this investigation occurred approximately nine months after the accident, it cannot establish TxDOT's actual notice within the six month statutory period. Moreover, Garrison did not consider causation when conducting his investigation, and did not conclude that the inadequate cross slope had caused the accident. Therefore, even if the investigation had occurred within six months of the accident, it would not show that TxDOT had actual notice.
We finally consider whether Hollis's notice to TxDOT of his opinion that the accident was caused by a faulty condition of the road established in TxDOT a subjective awareness that its fault produced or contributed to the death and injuries suffered. In 2004, the Texas Supreme Court clarified its interpretation of the term "actual notice" stating,
[W]hat we intended in Cathey by the second requirement for actual notice was that a governmental unit have knowledge that amounts to the same notice to which it is entitled by section 101.101(a). That includes subjective awareness of its fault, as ultimately alleged by the claimant, in producing or contributing to the alleged injury. . . . If a governmental unit is not subjectively aware of its fault, it does not have the same incentive to gather information that the statute is designed to provide, even when it would not be unreasonable to believe that the governmental unit was at fault.
Tex. Dep't of Criminal Justice v. Simons , 140 S.W.3d 338, 347 (Tex. 2004). When the State receives notice pursuant to subsection 101.101(a), it not only has an awareness of its alleged fault, but also an incentive to investigate the allegations to assess its exposure to liability because it no longer is protected by the shield of sovereign immunity. To have received "actual notice," TxDOT must have had the same incentive to determine its fault as if it had received notice under subsection 101.101(a). Id. Thus, for "actual notice" to overcome sovereign immunity, it must create in the State at least the same degree of perceived peril as does notice under subsection 101.101(a).
With a substantial number of automobile accidents occurring annually on Texas roads, it is reasonable that a governmental unit's knowledge of an accident, without more, does not constitute the actual notice required by subsection 101.101(c). See Cathey , 900 S.W.2d at 341 (imputing actual notice to hospital from knowledge that patient received treatment at its facility or died after receiving treatment equivalent to having no notice requirement at all). A governmental unit cannot acquire actual notice merely by conducting an investigation, or even by obtaining information that would reasonably suggest its culpability. Simons , 140 S.W.3d at 347. It is not enough that a governmental unit should have investigated an incident that a prudent person would have, or that it did investigate, perhaps as part of a routine safety procedure, or that it should have known from the investigation it conducted that it might have been at fault. Id. at 346-47. Therefore, applying Simons , even though Hollis may have believed that TxDOT was responsible for the faulty condition of the road, TxDOT's knowledge of Hollis's opinion, without more, does not show subjective awareness of fault. The undisputed evidence before us is that this matter never reached the stage of TxDOT's assessing its fault. Without assessment of its fault, TxDOT cannot be said to have had subjective awareness of its fault for this accident.
At the hearing on its plea to the jurisdiction, TxDOT stated in argument that there are over 300,000 automobile accidents in Texas each year. It further stated that over 150,000 of these accidents occur on roads maintained by TxDOT.
Appellees contend that the facts of the case at hand are similar to those in Bosler v. Riddle , No. 07-05-00283-CV, 2007 WL 686645 (Tex.App.-Amarillo Mar. 7, 2007, pet. denied) (op. on reh'g) (not designated for publication). Yet Riddle is distinguishable from the instant case. In Riddle , not only was an extensive internal investigation for fault of the incident conducted, but the investigation also revealed disputed allegations of fault. See id. , at *4. Further, in Riddle , the Amarillo court of appeals also determined that the governmental unit had received formal written notice under subsection 101.101(a). Id. , at *3.
Appellees further contend that the facts here are similar to Texas Tech University Health Sciences Center v. Lucero , No. 08-05-00297-CV, 2007 WL 2215395 (Tex.App.-El Paso Aug. 2, 2007, rule 53.7(f) motion filed). We disagree. Lucero involved a medical malpractice lawsuit in which a second doctor reviewed the work of the doctor who had performed the procedure at issue. Id. , at *11. The two doctors undertook the review together within six months of the time the procedure was performed. Id. The El Paso court of appeals determined that this joint investigation by the two doctors gave the doctor who performed the procedure subjective awareness of his fault. Id. Here, there was neither an investigation undertaken nor a subsequent determination of fault within six months of the October 4, 2004 accident.
In sum, there is no evidence that TxDOT made any assessment of its fault within the six months following the October 4, 2004 accident. There is further no evidence that TxDOT had the same incentive to investigate fault as it would have had it received formal notice under subsection 101.101(a). Therefore, we hold TxDOT did not have subjective awareness of its fault as required to satisfy subsection 101.101(c). TxDOT's sole issue is sustained.
DISPOSITION
Having sustained TxDOT's sole issue, we reverse the trial court's judgment and render judgment dismissing Appellees' claims for want of jurisdiction.
Worthen, Chief Justice. Hoyle, Justice, concurring. Griffith, Justice, dissenting.
Because there is no evidence in the record that TxDOT had a subjective awareness of its fault being the cause of the injuries to Stephanie Anderson and Karen Bobo and the death of Mariana Ramirez, I agree that TxDOT's motion to dismiss for lack of jurisdiction should have been granted. Because there is evidence that TxDOT had subjective awareness of its alleged fault , I concur in the court's judgment by separate opinion.
Under the Texas Tort Claims Act, the governmental unit is entitled to receive notice of a claim against it not later than six months after the day the incident giving rise to the claim occurred. TEX. CIV. PRAC REM. CODE ANN. § 101.101(a) (Vernon 2005). Notice need not be provided, however, if "the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged." TEX. CIV. PRAC. REM. CODE ANN. § 101.101(c). Recognizing the purpose of the notice statute, the Texas Supreme Court held in 1995 that the actual notice provision contained in subsection 101.101(c) requires a "governmental unit to have knowledge of (1) a death, injury, or property damage; (2) the governmental unit's alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved. Cathey v. Booth , 900 S.W.2d 339, 340 (Tex. 1995) (emphasis added).
If that were still the law today, the investigating officer's affidavit and testimony presented in this case would be sufficient evidence to establish the three requirements for actual notice under subsection 101.101(c), and TxDOT's motion to dismiss for lack of jurisdiction properly would have been denied by the trial court. However, in 2004 the Texas Supreme Court reexamined the actual notice requirement. Tex. Dep't of Criminal Justice v. Simons , 140 S.W.3d 338 (Tex. 2004). In Simons , the court stated that "[b]y holding in Cathey that `actual notice to a governmental unit requires knowledge of . . . the governmental unit's alleged fault producing or contributing to the death, injury, or property damage,' we did not mean that the governmental unit was required to know that the claimant had actually made an allegation of fault." Id. (emphasis added). The court went on to say that, "[o]n the other hand, Cathey cannot fairly be read to suggest that a governmental unit has actual notice of a claim if it could or even should have learned of its possible fault by investigating the incident." Id. (emphasis added). Even with these additional pronouncements of the law, the investigating officer's affidavit and testimony would satisfy subsection 101.101(c).
But the court went further in Simons , and dramatically changed the required proof to satisfy subsection 101.101(c). Specifically, the court held as follows:
What we intended in Cathey by this second requirement for actual notice was that a governmental unit have knowledge that amounts to the same notice to which it was entitled by section 101.101(a). That includes subjective awareness of its fault , as ultimately alleged by the claimant, in producing or contributing to the claimed injury. If a governmental unit has this subjective awareness of fault , along with the other information to which it is entitled under section 101.101(a), then requiring formal, written notice in addition would do nothing to further the purpose of the statute-which is, "to enable governmental units to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial." Id. (emphasis added).
Subjective awareness of alleged fault no longer is enough. Thus, after Simons , until a governmental unit has subjective awareness of its fault, it does not have the level of notice sufficient to satisfy subsection 101.101(c), even when it would not be unreasonable to believe that the governmental unit was at fault. Id. at 348.
The investigating officer's belief that TxDOT was responsible for the incident, while evidence of TxDOT's subjective awareness of alleged fault, is not evidence of its subjective awareness of fault. Further, TxDOT did not investigate this incident until more than six months after the date of the incident. Even when it did conduct its investigation, TxDOT made it clear that it was not attempting to determine the cause of the incident. The proof presented simply did not go far enough to provide the trial court with jurisdiction based on subsection 101.101(c) as construed by Simons . Therefore, I concur in the court's judgment reversing the trial court and granting TxDOT's motion to dismiss for lack of jurisdiction.
In Simons , the governmental entity argued "that if by investigating an incident a governmental unit can open itself to suit, it will have a perverse incentive to ignore every incident until it receives formal notice of the claim." Simmons, 140 S.W.3d at 348. The court believed that argument to be largely unfounded. Specifically, the court stated that any incentive not to investigate so as to avoid liability would be slight since a governmental unit's investigation is not sufficient to acquire actual notice even when such investigation discloses information that would reasonably suggest its culpability. Id. Nevertheless, the timing of TxDOT's investigation in this matter at least raises the possibility that the governmental unit's concerns raised in Simons were not "largely unfounded."
During the deposition of Miles Garrison, a TxDOT engineer who investigated this area of the road, the following exchange occurred:
Q Okay. And at least insofar as the area of the roadway, .3 miles south of the intersection of Tulip Road and Highway 271, didn't you feel like you had discovered the cause of these wet weather wrecks that were occurring?
Footnote continued.
A No.
Q Why is that?
A I did not — — I did not — — I didn't find a cause.
Q Well, you found an unacceptable cross-slope, right?
A My purpose — — the DPS — — I use the DPS reports. I rely on them to tell me, you know, yes, there was an accident at this location, it was a wet weather accident. I gather the information from the DPS report, and I go out to that location to see if there is anything that we can do to improve or to reduce the number of wet weather accidents. I do not look — — I do not, you know, there is — — I do not, I guess, apply cause to that.
I respectfully disagree with the majority that the notice TxDOT received from Officer C.L. Hollis was insufficient to satisfy the requirements of Texas Civil Practice and Remedies Code subsection 101.101(c) and would affirm the trial court's order denying TxDOT's plea to the jurisdiction.
The issue is whether TxDOT received actual notice of an October 4, 2004 accident, as required by the Texas Tort Claims Act. See TEX. CIV. PRAC. REM. CODE ANN. § 101.101(c). Notice to TxDOT was required because the basis of the suit is an alleged defect in the construction of US Highway 271 north of Gilmer, Texas. It is undisputed that Appellees did not give TxDOT actual notice within six months of the date of the accident. See id. § 101.101(a). However, it is also undisputed that C.L. Hollis, the Department of Public Safety officer who investigated the October 4, 2004 wreck, went to the TxDOT office in Gilmer and told various TxDOT employees about the wreck, identified the injured people, and attributed the blame for the wreck on vehicle hydroplaning due to a faulty condition of the roadbed. I would hold that this provided TxDOT the actual notice required under Section 101.101(c). See id. § 101.101(c). Therefore, I respectfully dissent.
A governmental entity is entitled to receive notice of a claim not later than six months after the date of the incident giving rise to the claim. The notice must reasonably describe (1) the damage or injury claimed, (2) the time and place of the incident, and (3) the incident. TEX. CIV. PRAC. REM. CODE ANN. § 101.101(a). This notice requirement does not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged. Id. § 101.101(c).
The defect alleged is an insufficient slope of the road that allowed rainwater to gather on the road. Some evidence suggests that this could have been the cause of several wrecks involving vehicles hydroplaning on the puddled water along the section of Highway 271 that is the focus of the litigation.
Facts
The operant facts of this case are that on October 4, 2004, Appellees Stephanie Anderson and Karen Bobo were traveling on U.S. Highway 271 in northern Upshur County when they were involved in a collision with another vehicle. Mariana Ramirez, the driver of the other vehicle, was killed in the collision, and Anderson and Bobo were seriously injured. Appellees contend that the collision was caused by water puddling due to an alleged defect in the construction of the roadbed, specifically, an insufficient grade of slope of the road surface. As a result of the insufficient slope, the standing water caused Ramirez's vehicle to hydroplane across the road into the oncoming traffic lane and collide with the vehicle occupied by Anderson and Bobo. Within days of the accident, Officer Hollis reported his observations about the accident to the local Gilmer office of TxDOT.
The Anderson and Bobo appellees filed suit against TxDOT and others on January 3, 2006. TxDOT filed an answer. Later, Jose Alicio Vasquez intervened, in both his individual and representative capacities. The suit was filed within the two year statute of limitations applicable for personal injury actions, but after the six month notice period imposed by the Texas Tort Claims Act on litigants suing governmental entities. Therefore, in order to continue their suit, Appellees had to avail themselves of substitutionary notice; that is to say, they had to establish that within six months of the accident, TxDOT received the required actual notice from another source sufficient to meet the notice requirements of the Texas Tort Claims Act.
See TEX. CIV. PRAC. REM. CODE ANN. § 16.003 (Vernon Supp. 2007).
TxDOT filed a plea to the jurisdiction contending that Appellees had not provided formal written notice of their claim as required by the Texas Tort Claims Act. Appellees contended that the failure to give formal written notice of their claims was not fatal to their claims due to the saving provision, section 101.101(c) of the Texas Tort Claims Act.
Applicable Law
A governmental entity must receive notice of a claim within six months of the incident giving rise to the claim. TEX. CIV. PRAC. REM. CODE ANN. § 101.101(a). That notice must reasonably describe the damage or injury, the time and place of the incident, and the incident. Id. Due to the short time in which to give formal notice imposed on those suing governmental units, claimants often find that they must avail themselves of section 101.101(c), which provides that formal notice is not required if the governmental unit receives actual notice of the accident within six months. The formal notice requirement does not apply "if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged. Id. § 101.101(c). Actual notice to the governmental unit "requires knowledge of (1) a death, injury, or property damage; (2) the governmental unit's alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved. Tex. Dep't of Criminal Justice v. Simons , 140 S.W.3d 338, 344 (Tex. 2004). The Simons court noted that the purpose of the notice requirement is "to ensure prompt reporting of claims in order to enable governmental units to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial." Id. at 344.
The Simons court held that, as to the second requirement for actual notice, it is necessary that
a governmental unit have knowledge that amounts to the same notice to which it is entitled by section 101.101(a). That includes subjective awareness of its fault, as ultimately alleged by the claimant, in producing or contributing to the claimed injury. If a governmental unit has this subjective awareness of fault, along with the other information to which it is entitled under section 101.101(a), then requiring formal, written notice in addition would do nothing to further the purpose of the statute-which is, "to enable governmental units to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial." [ Cathey v. Booth , 900 S.W.2d 339, 341 (Tex. 1994) (per curiam)]. It is not enough that a governmental unit should have investigated an incident as a prudent person would have, or that it did investigate, perhaps as part of routine safety procedures, or that it should have known from the investigation it conducted that it might have been at fault. If a governmental unit is not subjectively aware of its fault, it does not have the same incentive to gather information that the statute it designed to provide, even when it would not be unreasonable to believe that the governmental unit was at fault.
Simons , 140 S.W.2d at 347-48. Ultimately, the court held that "actual notice under section 101.101(c) requires that a governmental unit have knowledge of the information it is entitled to be given under section 101.101(a) and a subjective awareness that its fault produced or contributed to the claimed injury." Id. at 348.
It has been held that
actual notice may be imputed to the governmental unit only when an agent or representative of the entity charged with a duty to investigate and report to the governmental unit receives the three elements of actual notice outlined in Cathey . [citations omitted] But governmental entities have actual notice to the extent that a prudent entity could ascertain its potential liability stemming from an incident, either by conducting a further investigation or because of its obvious role in contributing to the incident.
Nat'l Sports Spirit, Inc. v. Univ. of N. Tex. , 117 S.W.3d 76, 80 (Tex.App.-Fort Worth 2003, no pet.). So the question before us is: Was Officer Hollis's notice to TxDOT sufficient to constitute actual notice pursuant to Section 101.101(c)?
I would first note that Hollis, as a trained DPS highway patrol officer whose patrols radiated from the small town of Gilmer, the county seat of Upshur County, would likely be familiar with the administrative personnel structure of the local TxDOT office and would thus know to whom he should report the defective highway. Hollis notified a number of the people in the Gilmer TxDOT office, including the maintenance supervisor in the Gilmer office at the time of the accident. He specifically told them the identities of the injured, the nature of the injuries, and attributed cause for the accident to the defective nature of the highway. Hollis stated in his affidavit as follows:
I am currently employed as an officer with the Texas Department of Public Safety. On October 4, 2004, I responded to and investigated a car wreck on Highway 271 north of Gilmer in which Stephanie Anderson, Karen Bobo, and Mariana Ramirez suffered injuries.
Within days after October 4, 2004, I went to the Texas Department of Transportation office outside of Gilmer and notified employees there, including the maintenance supervisor, of the wreck. I provided TxDOT with the identities of the victims, the date of the wreck, and the wreck's location. I notified them that there was one fatality and that several others were seriously injured in the wreck. I indicated that the wreck was caused, in my opinion, by the faulty condition of the road. I informed TxDOT employees that in my opinion the roadway allowed water to pool creating a dangerous condition and a potential for hydroplaning.
This was not the first time I had notified TxDOT about problems on that stretch of roadway, as I had worked many accidents there in the past during periods of precipitation, and had been to that office on more than one occasion warning them about the dangerous condition of the roadway.
In a deposition admitted at the hearing on TxDOT's plea to the jurisdiction, Hollis testified that the accident location was so dangerous that police officers anticipated a wreck at the location due to hydroplaning whenever it rained. Hollis said that "the water stood there in the road, it was-it would puddle up there, and people would hit it and skid off the road."
As noted, the Texas Supreme Court requires the governmental entity have knowledge of the death or injury, the governmental unit's alleged fault in producing or contributing to the death or injury, and the identity of the parties involved. Simons , 140 S.W.2d at 348. Clearly, Hollis's notice provided the required information.
But the crux of the issue is whether Hollis informed the right person. That is, did Hollis inform a TxDOT official whose duties include assessing TxDOT's possible fault in producing or contributing to the wreck? Did anyone at TxDOT, "an agent or representative of the entity charged with a duty to investigate and report to the governmental unit receive the three elements of actual notice outlined in Cathey "? See Nat'l Sports Spirit , 117 S.W.3d at 80. Did the notice that Hollis gave TxDOT cause TxDOT to prudently investigate to "ascertain its potential liability stemming from an incident, either by conducting a further investigation or because of its obvious role in contributing to the incident"? See id. That is to say, did Hollis's notice to the TxDOT Gilmer office give TxDOT "subjective awareness of fault" as required by section 101.101(c)?
Numerous cases considering this issue have focused on whether (1) the notice the governmental agency received was given to an agent of the governmental entity (2) who conveyed the report of the accident (3) to the proper person within that governmental entity who was charged with the responsibility to appropriately investigate the accident in anticipation of possible litigation. The El Paso court of appeals has held that "[a]ctual notice may be imputed to the governmental unit only when an agent or representative of the entity charged with a duty to investigate and report to the governmental unit receives the three elements of actual notice outlined in Cathey ." Gonzalez v. El Paso Hosp. Dist. , 940 S.W.2d 793, 795 (Tex.App.-El Paso 1997, no pet.). In another case, the Austin court of appeals noted that the fact that a governmental entity may know an accident occurred, or even the filing of an accident report, does not constitute actual notice. But where the incident triggered a separate investigation and report, one may impute actual notice to the governmental unit. City of San Angelo v. Smith , 69 S.W.3d 303, 307-09 (Tex.App.-Austin 2002, pet. denied). In Smith , a visitor to the city water treatment center fell down an open hole in the presence of the plant superintendent. The superintendent quickly informed the plant's risk manager, and the city installed a guardrail around the hole the next day. The city also prohibited the injured visitor from taking pictures of the accident site. The court held that, taken together, those facts established and constituted actual notice. Id. at 308. Similarly, where sheriff's deputies had a duty to investigate and report facts of the accident, the deputies' knowledge would be imputed to the county and constitute actual notice. Rosales v. Brazoria County , 764 S.W.2d 342, 345 (Tex.App.-Texarkana 1989, no writ).
In another case, actual notice was held not to be limited to a particular governmental official, but could be imputed where an agent with notice has a duty to gather facts and investigate, including some hospital employees. Dinh v. Harris County Hosp. Dist. , 896 S.W.2d 248, 252-53 (Tex.App.-Houston [1st Dist.], writ dism'd w.o.j.). In a like manner, this court held that a fact issue existed as to actual notice where an affidavit by the hospital director showed that, in the same month a patient died, the hospital knew the patient's identity, that she died, and that its failure to examine and treat her allegedly contributed to her death. Johnson v. Nacogdoches Hosp. Dist. , 109 S.W.3d 532, 537 (Tex.App.-Tyler 2001, pet. denied). In yet another case, it was held that
[a]ctual notice to a governmental unit requires knowledge of: (1) a death, injury, or property damage; (2) the unit's alleged fault producing or contributing to it; and (3) the identity of the parties involved. Cathey v. Booth , 900 S.W.2d 339, 341 (Tex. 1995). The existence of actual notice is a question of fact. City of Houston v. Daniels , 66 S.W.3d 420, 424 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Actual notice may be imputed to a governmental unit when its fault is obvious or an agent charged with a duty to investigate and report to the unit receives notice of the three Cathey elements. See Crane County v. Saults , 101 S.W.3d 764, 769 (Tex.App.-El Paso 2003, no pet.). Thus, an incident that triggers an investigation and accident report will impute such notice where there is evidence to connect the accident to an action or omission by the governmental unit such that it should have know of its potential culpability. See id. at 769-70.
Angleton Danbury Hosp. Dist. v. Chavana , 120 S.W.3d 424, 427 (Tex.App.-Houston [14th Dist.] 2003, no pet.).
By contrast, however, the El Paso court addressed a case in which an inmate was taken to the hospital after falling, and jailers reported the incident to the sheriff. Because there was no evidence to connect the accident with an action or omission by the county, the court held that the mere awareness of the accident was insufficient to constitute actual notice. Crane County v. Saults , 101 S.W.3d 764, 769-70 (Tex.App.-El Paso 2003, no pet.). Similarly, another court held that a governmental entity's knowledge of its excavation project and resulting mud on the road did not constitute actual notice of the entity's alleged fault because no evidence linked the mud to the accident. Renard v. Park Ten Mun. Util. Dist. , 794 S.W.2d 956, 958-59 (Tex.App.-Houston [1st Dist.] 1990, no writ).
Also, the Dallas court of appeals held that actual notice was not imputed to a transit district where there was no evidence that the bus driver conveyed any information about an accident to any person with a duty to investigate and report the accident. Nor was there evidence that information about a police investigation was conveyed to the transit district. Davis v. Mathis , 846 S.W.2d 84, 87-88 (Tex.App.-Dallas 1992, no writ). Finally, the Fort Worth court of appeals held that no actual notice existed where a TxDOT official who was called to the accident scene did not report the accident to his supervisor and the police report indicated the accident was caused by driver inattention. Tex. Dep't of Transp. v. Blevins , 101 S.W.3d 170, 173 (Tex.App.-Fort Worth 2003), appeal dism'd per curiam , 140 S.W.3d 337 (Tex. 2004).
Application to Present Case
During preliminary discovery, Miles Garrison, resident engineer for TxDOT highways in Upshur County and part of Camp County, was deposed. Garrison testified that the TxDOT contracts required an "02 slope." Such a slope is recognized by highway engineers as being necessary to properly drain the road of rainwater. Though his testimony was somewhat truncated on several issues due to the objections of the TxDOT attorney, Garrison testified that he had received a DPS report regarding several accidents at the location where the accident at issue occurred. Garrison identified an email from Kenneth Williams on June 2, 2005 relating to problems along Highway 271, and indicating that he intended to provide an overlay on that section of road after preliminary work was performed. Garrison also identified a June 22, 2005 email from Charles Russell, a TxDOT official in Austin concerning wet weather accidents along that section of Highway 271. Russell's email specifically refers to the October 4, 2004 accident. After the June 22 email, Garrison went to the scene of the wrecks and measured the roadbed's cross slope. The tests confirmed that in some portions of the section of Highway 271 in question, the slope was much less than .02. In some places, the slope was 85% less than the .02 slope recognized as necessary to drain the highways of rainwater, and in other places, the slope was less than .01. Garrison admitted that the goal and the design plan by TxDOT is for a general slope of .02, and that anything less than .015 would be undesirable. Garrison also stated that he detected places on the highway section in question that were far below that requirement. Garrison confirmed that other testing had previously been performed by TxDOT, as indicated by Williams's previous awareness of the problem, and that the other, more precise testing "compared reasonably well" with his test results regarding the lack of slope of the roadbed.
Evidently, the "02 slope" or "02 cross-slope" refers to a two degree slope from the crown of the road towards the edge of the road to drain rainwater from the roadbed.
Interestingly, Garrison admitted that he relied on DPS accident reports to indicate defective highway conditions that he needed to investigate. As Garrison stated,
"I use the DPS reports. I rely on them to tell me, you know, yes, there was an accident at this location, it was a wet weather accident. I gather the information from the DPS report, and go out to that location to see if there is anything that we can do to improve or to reduce the number of wet weather accidents."
But Garrison refused to "apply cause" to the accidents on that stretch of the highway. Garrison also admitted that, as a result of his measurements and testing of the section of Highway 271 at issue, he recommended that TxDOT install temporary warning signs, and that TxDOT "correct and improve the cross slope." Garrison testified that, sometime after July 2005, TxDOT had placed the "coarse surface treatment" that Russell had mentioned, which he considered a "good measure to start with," but noted that "at some point in the future, they would come back-maintenance would come back when money and manpower and equipment were available and correct the cross-slope."
Garrison also knew about this accident, having read about it in the newspaper. Significantly, he also had been informed about a request for information that had been made to the local TxDOT office regarding the accident, although who made the request was not established.
These facts call to mind the rule that, if the incident triggers an investigation or accident report, the court can impute actual knowledge to the governmental entity. A combination of Hollis's report, information that Williams obtained, and perhaps other information, resulted in Garrison, on his own and at the behest of his supervisors in Austin, testing the roadbed in question. Garrison's testing confirmed what Hollis said about a lack of sufficient slope on the pavement, and confirmed previous intervening TxDOT testing of the roadbed. And, although Garrison refused to state that the insufficient slope of the roadbed caused the accident on October 4, 2004, Hollis had previously supplied the causal element of the actual notice requirement in his report to the Gilmer TxDOT office.
I also respectfully disagree with the majority regarding the timeliness of the response of TxDOT as being crucial to the analysis. And, I would submit, this disagreement with the import of the dates of various TxDOT actions forms the crux of my dissent from the opinions of my colleagues. I do not discern in Simons that there was a requirement that the governmental entity's response, including any investigations as to its potential liability to the notice received, be completed within six months of the accident, only that the notice be received within six months. TxDOT admitted it received Hollis's notice within six months of the accident. And TxDOT began to investigate the situation as would a prudent potential defendant. That was sufficient to establish actual notice. Therefore, I would affirm the order of the trial court.