City of San Antonio v. Tenorio ex rel. Tenorio

543 S.W.3d 772

CITY OF SAN ANTONIO, Petitioner,

v.Roxana TENORIO, Individually and on Behalf of Pedro Tenorio, Deceased, Respondent

NO. 16–0356

Supreme Court of Texas.

OPINION DELIVERED: March 23, 2018

Peter Steiner, Joe Brock, for Roxana Tenorio.

Martha Sepeda, Michael Siemer, Deborah Klein, Dan Pozza, for City of San Antonio.

Phil Johnson, Justice

The question in this interlocutory appeal is whether the City of San Antonio has governmental immunity from a suit for damages arising out of a collision between a car and a motorcycle. The trial court denied the City's plea to the jurisdiction based on such immunity. The court of appeals affirmed. We reverse and dismiss for lack of jurisdiction.

I. Background

On September 21, 2012, Roxana Tenorio and her husband, Pedro, were riding a motorcycle in a northbound lane of SW Loop 410 in San Antonio when they were hit head-on by a southbound vehicle being driven by Benito Garza. The collision killed Pedro and severely injured Roxana. Until shortly before the collision, officers of the San Antonio Police Department (SAPD) had been pursuing Garza because they suspected him of being involved in an armed robbery. When Garza entered the Loop going the wrong way, however, the officers discontinued the pursuit.

Roxana, individually and "on behalf of Pedro Tenorio, Deceased" (Tenorio), sued Garza and the City. She alleged that the police officers were negligent in initiating, continuing, and failing to terminate the high speed chase; the City had actual notice of her claims; and the City's immunity was waived by the Texas Tort Claims Act (TTCA). See id. § 101.101, .021. The City responded to Tenorio's suit, in part, with a plea to the jurisdiction. The City asserted that Tenorio failed to give notice of claim as required by the TTCA as well as the City's Charter, and that the City did not have actual notice that it was at fault in causing the collision. The City supported its plea with multiple documents, including sworn witness statements and police reports regarding the collision. Tenorio replied and attached various SAPD documents.

The trial court denied the City's plea.

The City filed an interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE§ 51.014(a)(8). The court of appeals affirmed, concluding there was a fact issue as to whether the City had actual notice of Tenorio's claims. 542 S.W.3d 632, 2016 WL 328073 (Tex. App.–San Antonio 2016). The court emphasized that the proper inquiry is not whether some evidence showed that SAPD was negligent but "whether [the record contained] evidence raising a fact issue as to whether SAPD was subjectively aware that it played a role in producing or contributing to Roxana's and Pedro's injuries." Id . at 636 (emphasis added). The appeals court concluded that the evidence raised a fact issue regarding "whether the City was aware of its role in contributing to the claimed injuries" because the investigating officer determined that "Fleeing or Evading Police" was a factor contributing to the accident. Id . at 637–38.

In this Court, the City argues that the court of appeals applied an erroneous standard. The City maintains that the correct standard is whether it was subjectively aware that some fault on its part caused the collision, not whether it was subjectively aware that it simply played a role in producing or contributing to it. The City maintains that the crash report's listing "Fleeing or Evading Police" as a contributing factor to the collision does not raise a fact issue as to whether the City was at fault in causing it.

Tenorio responds that the court of appeals used the proper standard. In her view, the appeals court used the phrase "played a role" to point out that fault is not synonymous with liability in the context of determining actual notice but to imply some responsibility for the injuries claimed. She also argues that the City confuses fault with complete liability, meaning that the City improperly views fault in this context as referencing the City being exclusively at fault. Lastly, Tenorio argues that the court of appeals correctly held that because the crash report listed "Fleeing or Evading Police" as a contributing factor to the collision, there was a fact issue as to whether the City had subjective awareness of its fault.

We agree with the City.

II. Discussion

Generally, governmental entities are immune from suits seeking to impose tort liability on them. See Ryder Integrated Logistics, Inc. v. Fayette County , 453 S.W.3d 922, 926 (Tex. 2015). That immunity deprives trial courts of subject matter jurisdiction over such suits, absent a waiver of the immunity. Id. at 927. The TTCA contains such a waiver if notice as prescribed by statute is given. City of Dallas v. Carbajal , 324 S.W.3d 537, 537–38 (Tex. 2010) ; see also TEX. GOV'T CODE § 311.034. Under the TTCA, a governmental unit must be given notice of a claim against it "not later than six months after the day that the incident giving rise to the claim occurred." TEX. CIV. PRAC. & REM. CODE§ 101.101(a). This notice of claim must describe "(1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident." Id. Claimants must also comply with any proper time requirements for notice that a city has adopted by charter or ordinance. Id . § 101.101(b) ("A city's charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and approved."). San Antonio's charter requires written notice of claim within ninety days after the injuries or damages were sustained. SAN ANTONIO, TEX., CITY CHARTER art. XII, § 150.

However, the written notice requirements in the TTCA do not apply if a governmental unit has actual notice. TEX. CIV. PRAC. & REM. CODE§ 101.101(c) ; Cathey v. Booth , 900 S.W.2d 339, 341 (Tex. 1995). 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. Cathey , 900 S.W.2d at 341. To have actual notice, a governmental unit must have the same knowledge it is entitled to receive under the written notice provisions of the TTCA. See Tex. Dep't of Criminal Justice v. Simons , 140 S.W.3d 338, 347 (Tex. 2004). Thus, the actual notice provision requires that a governmental unit has subjective awareness that its fault, as ultimately alleged by the claimant, produced or contributed to the claimed injuries. See id. A governmental unit has actual notice under the TTCA if it has subjective knowledge of (1) a death, injury, or property damage; (2) the governmental unit's fault that produced or contributed to the death, injury, or property damage; and (3) the identity of the parties involved. See Cathey , 900 S.W.2d at 341.

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. Simons , 140 S.W.3d at 348. The actual notice requirement is not met just because the governmental unit (1) should have investigated an accident as a prudent person would have, (2) investigated an accident as part of its routine safety procedures, or (3) should have known it might have been at fault based on its investigation. Id. at 347–48.

If a governmental unit investigates an accident, whether the information acquired through its investigation meets the actual notice requirements of the TTCA depends upon the particular facts of the case. For example, in Carbajal , Olivia Carbajal sued the City of Dallas for injuries she sustained after driving her vehicle into a gap on an excavated road. 324 S.W.3d at 538. The police report stated that Carbajal saw barricades, but none were blocking what she thought was a clear way to get on the freeway. Id. The report also noted that there were no barricades directly blocking the gap in the road. Id. This Court held that the police report "was at most an initial response to the accident" and did not imply, let alone expressly state, that the City was at fault. Id. at 537, 539. Thus, the report was insufficient to show that the City had actual notice under the TTCA. The report described the apparent cause of the accident—the missing barricades—but did not say who failed to erect or maintain the barricades. Id . at 539.

By contrast, in University of Texas Southwestern Medical Center at Dallas v. Estate of Arancibia , a patient died after her bowel was perforated during a laparoscopic hernia surgery. 324 S.W.3d 544, 546 (Tex. 2010). Her family sued the hospital where the surgery took place. Id. The hospital filed a plea to the jurisdiction, claiming that the family failed to provide timely notice under the TTCA. Id . This Court determined that the hospital had actual notice because (1) Dr. Watson was present during the patient's surgery; (2) the day after the patient died Dr. Watson emailed his supervisor, stating that the doctors involved in the surgery failed to recognize the bowel injury and he had already spoken to risk management personnel; and (3) Dr. Watson recognized that the bowel perforation was a retraction injury that occurred out of the surgeon's field of view. Id. at 549–50. Dr. Watson's supervisor concluded that a technical error during the surgery resulted in the bowel injury. Id . at 549. The supervisor further noted that "clinical management contributed to" the patient's death and that although no standard of care issues were identified, the care "was not necessarily consistent with established standards." Id. We noted that as it pertains to actual notice under the TTCA, fault is not synonymous with liability but implies responsibility for the claimed injury. Id. at 550. In that case the hospital was subjectively aware that its doctors' errors were causally related to the perforations and that clinical management not "consistent with established standards" contributed to the patient's death. Id. at 549–50.

In this case Tenorio relies on (1) the crash report, (2) the witness statements,...